PRAMATHA CHANDRA KAR Vs. BHAGWANDAS MADANLAL

JUDGEMENT

(1.) This is an appeal from a decision of my learned brother Panck-ridge, J., upon an issue whether two persons, Mr. Pramatha Chandra Kar and Sir Hari Sankar Paul, are liable as partners of the defendant firm of Dawn & Co.,. on a money decree obtained against the firm by the plaintiffs Bhagwandas Mandal, dated 28 January 1927. The suit was for a sum of Rs. 4,592 in respect of two contracts which were made in 1923 and 1924 respectively and it was brought on 27 March 1925.

(2.) It appears that the case for the appellants Mr. Pramatha Chandra Kar and Sir Hari Sankar Paul is that, in April 1922, there was a dissolution of the partnership and Mr. Dawn, after that date, continued to carry on the business under the name of the old firm, Dawn and Co., the appellants having retired. It is clear that before April 1922 the plaintiff's had transactions with Dawn and Co. at a time-when admittedly the appellants were partners of the firm then trading under that name. The plaintiffs brought their suit, as 1 have said, against the partnership firm in the name of Dawn and Co. in March 1925 and very soon after that, namely, in April 1925, Mr. P.C. Kar brought a suit against Mr. Dawn, Sir Hari Sankar Paul and some other members of Sir Hari Sankar Paul's family for a declaration that the partnership had been dissolved as from April 1922. On 15 July 1926 ho obtained a preliminary decree declaring that the partnership had been dissolved as from that date and pro-viding for the usual accounts. The plaintiffs having got their decree in January 1927 made no attack upon the appellants as liable under the decree until February 1930, namely, for a period of some three years. Now, an issue having been directed as to whether the appellants are liable under the plaintiffs decree as partners of the firm of Dawn and Co., the learned Judge has tried certain questions necessary for the solution of that matter. The plaintiff's maintain that not only did they do business with Dawn and Co., prior to April 1922, but that they made enquiries and came to know that the appellants were partners of the firm of Dawn and Co., that their dealings with Dawn and Co., were dealings upon which they gave credit to the appellant. It is quite clear that neither in April 1922 nor at any subsequent period was any public notice of the dissolution of the partnership given.

(3.) In the circumstances the learned Judge has tried the question whether it is true that the plaintiffs knew at any time prior to April 1922 that the appellants were members of this partnership and he has come (to the conclusion that ?) the plaintiffs evidence on that question cannot be believed and he has, in my judgment, rightly refused to hold that it has been shown that the plaintiffs at the time they gave credit to the firm upon the contracts in suit knew of the status of the appellants as partners of this firm. That being settled, the learned Judge has addressed himself next to the question whether, in the absence of knowledge on the plaintiffs part these individuals--Mr. P.C. Kar and Sir Hari Sankar Paul were partners--the plaintiffs would be entitled to succeed assuming that the partners as between themselves did dissolve the business in April 1922. This question in India turns upon the correct construction of Section 264, Contract Act. The learned Judge has come to the conclusion that the authorities to which I will refer in a moment require him to hold that, notwithstanding the provisions of Section 264, a person cannot hold a retiring partner liable unless he know that that individual person was a partner prior to the dissolution. Accordingly the learned Judge has addressed himself to the question of fact whether or not in April 1922 the appellants did retire from this firm as alleged. I will deal first with this question of fact.