GORDHANDAS CHHOTALAL SHETH Vs. MAHANT SHRI RAGHUVIRDASJI GANGARAMJI

JUDGEMENT

(1.) This was a suit brought by the plaintiffs to recover Rs. 6,860 as principal and Rs. 821-5-3 as interest from the property of the partnership gin factory of defendants Nos. 1 and 2 and Keshavlal, who was the father of defendants Nos. 3 and 4 and the manager of the joint family of defendants Nos. 5 to 9.

(2.) The learned Judge held that the moneys advanced by the plaintiffs were taken by the deceased Keshavlal for the purposes of the Wadhwan Ginning Factory as its sole managing partner, the other partners of the same being the deceased defendants Nos. 1 and 2, but did not pass a decree against the other partners on the ground that the partnership was not a trading partnership. He passed a decree against defendants Nos. 3 and 4, the sons of Keshavlal, but refused to pass a decree against defendants Nos. 5 to 9, who were members of a joint family which was represented by Keshavlal in the partnership consisting of defendants Nos. 1 and 2 and Keshavlal. There is no appeal as against defendants Nos. 5 to 9. The present appeal is filed by the plaintiffs principally against defendants Nos. 1 and 2, the partners of the ginning factory of which Keshavlal was the managing partner.

(3.) The question as to whether the ginning factory was a commercial firm or a trading partnership was not specifically raised in the written statement. In a mercantile trading firm a partner has implied authority to draw and accept bills of exchange or hundis on behalf of the firms: see Moti Lal V/s. The Unao Commercial Bank The Bank of Australasia V/s. Breillat (1847) 6 M.P.C. 152, 193 and Bunarsee Das V/s. Gholam Hoosein (1870) 13 M.I.A. 358. According to the decision in Saremal V/s. Kapurchand a firm is a trading firm if its business consists in buying and selling, but where the business is not of a commercial nature, e. g, of a farmer, quarry- worker, or an auctioneer, no partner can borrow or pledge the partnership property so as to bind his co-partners. According to Lindley on Partnership, 9 Edition, page 181, the question as to whether one partner can bind the firm by accepting bills in its name admits of no general answer; the nature of the business and the practice of those who carry it on (usage or custom of the trade) must be known before any answer can be given. The ginning factory might advance money on cotton, buy cotton in its natural condition and sell ginned cotton, but no evidence was led on the question as to whether the ginning factory was a business of a commercial nature in which the managing partner would have ample power of borrrowing.