MOTILAL CHHAJULAL Vs. GIRIDHARILAL RAMESHWARLAL

JUDGEMENT

(1.) This is an application under Order 21, Rule 50, Civil P.C. The petitioner alleges that there were transactions between the petitioner and Messrs. Giridharilal Rameswarlal as a result of which a certain sum became due to the petitioner. Disputes arose and they were referred to the arbitration of the Bengal Chamber of Commerce under the old Arbitration Act. The parties to the arbitration as set out in the award are as follows: "Messrs. Motilal Chhajulal sellers and Messrs. Giridharilal Rameswarlal, buyers." An award was made against Messrs. Giridharilal Rameswarlal. The award was filed in Court and became enforceable as a decree. The petitioner now applies under Order 21, Rule 50, Sub-rule (2), Civil P.C., for leave to execute the award against three persons, viz., Lalchand Khendelwal, Kaluram Khendelwal and Benarasilal Khendelwal on the ground that they are partners of the firm of Messrs. Giridharilal Rameswarlal. Lalchand Khendelwal and Benarasilal Khendalwal are represented by Mr. H.D. Bose and Kaluram Khendelwal by Mr. S.M. Bose. The contentions on their behalf are the same. They say that there was no partnership firm called Giridharilal Rameswarlal and allege that Giridharilal Rameswarlal was the name of a joint family business which belonged to a joint Mitakshara Hindu family of which they are some of the members. They contend that inasmuch as Giridharilal Rameswarlal was not a contractual firm the award is a nullity and cannot be executed at all. In the alternative they contend that at any rate the award cannot be executed against them inasmuch as the provisions of Order 21, Rule 50 are applicable to contractual firms only and not to joint family businesses.

(2.) The first question for determination is whether Messrs. Giridharilal Rameswarlal constitute a partnership firm. The evidence on this point is onesided and I have no hesitation whatsoever in holding that the business of Giridharilal Rameswarlal does not constitute a co-partnership firm but that it is a joint family business belonging to a Mitakshara joint family of which the three respondents are members. The petition of the firm Motilal Chhajulal in this proceeding is verified by one Govindprosad who is the constituted attorney of the petitioner firm. In para. 5 of this petition it is stated: "that Lalchand Khendelwal, Kaluram Khendelwal and Benarsilal Khendelwal were and are some of the partners of the said firm of Giridharilal Rameswarlal." In the verification of the petition Govindprosad says that he has no personal knowledge of this fact and that it is based on information received and believed to be true. The source of the information is not given. After the affidavit in opposition had been filed stating that Giridharilal Rameswarlal was the name of a Hindu joint family business and denying the existence of any such co-partnership firm, Govindprosad swore another affidavit in opposition in which he denied that Giridharilal Rameswarlal is a joint family business and stated that it was a partnership firm. That is all the evidence given on behalf of the petitioner firm to prove the existence of a partnership firm called Giridharilal Rameswarlal. On behalf of the respondents certain materials have been placed before me which establish that there is no such firm. There are the affidavits of Kaluram and Lalchand to the effect that Giridharilal Rameswarlal is not a co-partnership firm but the name of a joint family business. A suit was filed regarding this very same matter by Kaluram Khendelwal against the petitioner and one Chandgiram Sharma. The cause title of the plaint is in the following terms: Kaluram Khendelwal for self and as karta of a Hindu joint family carrying on business under the name and style of Giridharilal Eameswarlal.

(3.) The cause title is verified as being true to the knowledge of the plaintiff. The petitioner made an application for the stay of the suit on the ground that the matter in suit had been referred to arbitration. That petition was sworn to by Radheyshyam, a partner of the petitioner firm of Motilal Chhajulal. In para. 9 of that petition the petitioner firm states as follows: Thereafter on or about 27 July 1940 the above suit was instituted by the plaintiff Kaluram Khendelwal abovenamed as the karta of the said firm of Giridharilal Rameswarlal which appears to be a, joint family business, against your petitioners.