RADHAKISAN JAIKISAN GINNING AND PRESSING FACTORY Vs. JAMNADAS NURSERY GINNING AND PRESSING COMPANY LIMITED

JUDGEMENT

(1.) THESE are appeals by two groups of persons against an order holding that the suit brought by the respondent-plaintiff was maintainable and the preliminary objection failed. The preliminary objection was founded on the view that a certain combination constituted the members thereof a partnership, and accordingly the parties to the arrangements were partners, that that partnership was not registered and that therefore under Section 69, Partnership Act, the suit was not maintainable. The learned Judge came to the conclusion that the arrangement hereinafter to be mentioned did not constitute the members thereof partners, that it was not a case of partnership and that accordingly the obstacle created by Section 69, Partnership Act, did not exist. In the course of the arguments before us, it appeared to one of us that although this combination was not a partnership, it fell within the definition of "Trade Union" contained in the Trade Unions Act. That definition brings into the meaning of the term any combination " for imposing restrictive conditions on the conduct of any trade or business." The proviso excludes arrangements between partners, and if this combination were a partnership it would probably not be a trade union for that reason. On the other hand, if it were not a partnership it might be a trade union, and if it were a trade union it becomes necessary to consider that it is not an obstacle in the plaintiff's way although that point has never been taken or pleaded.

(2.) SO far as the partnership argument is concerned, it appears to us that the learned Judge was correct in his appreciation of the nature of this arrangement. The arrangement can be broadly described as one come to by a number of persons engaged in the business of ginning having for its purpose the greater enrichment of those various persons by preventing the cutting of prices for the ginning of cotton. They called this arrangement a combination and the broad idea was that each constituent should charge or be deemed to charge the same amount for the ginning of cotton which amount is stated and that out of the total charge which was Rs. 6-8.0 per boja of 392 lbs. net each constituent has to pay Rs. 1-12-0 into a common pool called the General Fund. The constituent kept the balance Rs. 4-12-0, but each constituent assured against bad debts because although the Rs. 6-8-0 was not in fact paid it was deemed to be paid and although it was not in fact paid, the Re. 1-12-0 in respect of the boja in question had to be paid over to the pool. Each party was required to keep proper books of accounts so that the number of bojas could be ascertained. As we have said the calculations proceed on the basis that there were no bad debts. The power was conferred upon one of the members, the present plaintiff, to sue if the requisite contributions of Re. 1-12-0 per boja were not in fact paid by the constituent members.

(3.) BEING a combination we are equally clear that it falls within the definition of "Trade Union," and it might have been thought that that also was a fatal objection to this suit, but the objection has not been put on that ground and even after the adjournment it has only been very faintly argued. So far as the argument goes it is founded entirely on Section 2(h) prov,. (i) and Sections 13 and 14, Trade Unions Act. It is said that Section 14 does not exclude the Partnership Act, that the proviso to Section 2(h) excludes any agreement between partners and that accordingly both those provisions make it clear that if this be a partnership the fact that it is also a trade union does not make any difference. With that we agree. But as we have seen that it is not a partnership it next becomes necessary to inquire whether the fact that it is a trade union is an obstacle in the plaintiff's way because although this has not been pleaded and although the point was taken only by the Bench, still there has been an adjournment and the Privy Council has said over and over again that if there is any question of statutory requirement which compels the doing of a thing the Courts must take note of that fact even though it is not pleaded. Accordingly we go to Section 13, Trade Unions Act, which it is said is the Section which says to every Court that it shall not entertain a suit by or against a trade union unless it is registered. We have read Section 13 and we do not think that it has any such effect. What that Section says is that if a trade union is registered it can sue and be sued. Then the question arises, what about an unregistered trade union ?