GORDHANDAS BALDEODAS Vs. BHULABHAI RANCHHODDAS

JUDGEMENT

(1.) The plaintiffs, who are shroffs and merchants, claim from the defendants a sum of Rs. 3,274-7-3 with interest on Rs 3,128-5-3 at six per cent, from August 10,1930, till judgment. The claim is made in respect of an account which subsisted between the two firms. Bhulabhai Chhotalal, who was a partner in the defendant firm, has appeared on behalf of the firm and raised certain defences to the suit. The other partner Maneklal has not appeared and has evinced no interest in these proceedings.

(2.) Exhibit A shows that the account which subsisted between the two firms was in the nature of a mutual, open and current account, That account is for the Samvat year 1982. According to the evidence of Gordhandas Baldeodas, Maneklal made up the accounts of his firm with him and executed a writing Exhibit B, whereby he acknowledged the indebtedness of the defendant firm on an adjustment of account up to date in a sum of Rs. 3,096-4-6 and agreed on behalf of the defendant firm that the amount so found due should be paid to the plaintiff's by yearly instalments of Rs. 500, the first instalment being payable on October 26, 1927, and in default of payment of the first instalment the plaintiffs were to become entitled to recover the whole amount together with interest. Default was committed in payment of the first instalment and the plaintiffs are now suing for the whole amount due to them under this agreement, Since the execution of Exhibit B, the defendants have paid to the plaintiffs a sum of Rs. 25 in cash on January 9, 1928, and a sum of Rs. 500 being the proceeds of a hundi on January 10, 1928. The hundi and the cash, according to the evidence of Gordhandas Baldeodas, were sent by Maneklal of the defendant firm with a messenger who brought with him a covering letter which was in the handwriting of Maneklal and was on behalf of the defendant firm giving instructions that the amount of the hundi when realised as well as the sum of Rs. 25 paid in cash should be credited to the defendants in the defendants account with the plaintiffs. This letter according to Gordhandas is missing. The date of Exhibit B is October 16, 1926. The accounts, Exhibits D.E.F. and G show that the defendants account in the plaintiffs books has remained open but with the exception of the two credit items of Rs. 25 and Rs. 500 in the account for Samvat year 1984, balances have been carried forward from year to year with the addition of interest, there having been no fresh transactions. The character of the account as a current, mutual and open account seems to have been continued at any rate till 1984 Samvat when there are credit items in addition to debit items in the account. Exhibit H is a notice addressed by the plaintiffs to the two partners in the defendant firm calling upon them to pay up the sum of Rs. 3,070-4-0 with further interest. This letter is dated July 2 and 3, 1929. To this letter there is no reply by either partner.

(3.) The main contentions on behalf of the defendant firm are that at the date of Exhibit B the defendant firm was dissolved to the knowledge of the plaintiffs and that Maneklal had no authority express or implied, to bind the defendant firm by an acknowledgment of the nature of Exhibit B, It was further contended that at the date of the dissolution the defendant firm handed over to the plaintiffs the remaining goods they had with them of the value of Rs. 500 and three decrees of the Court of Small Causes in their favour against third parties in liquidation of the plaintiffs claim against the defendants. Gordhandas Baldeodas stated that the particulars of the plaintiffs claim annexed to the plaint were correct. He was not cross-examined with regard to the correctness of the account and it may be taken as conceded that the accounts for which the plaintiffs are suing are correct. The defendants also, contend that the plaintiffs claim is time-barred.