ABDUL LATIFF Vs. GOPESWAR CHATTORAJ

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decree dismissing his suit for accounts and for damages. Shortly put the plaintiff's case was as follows: The plaintiff had worked as a contractor for loading and unloading wagons for the Indian Iron & Steel Co. Ltd., at Santa for a long time. As he had various other businesses to attend to, it was inconvenient for him to look after the said contract work personally, and so he made up his mind to appoint somebody to whom he might entrust the same. The defendant, who is a pleader, on coming to know of his intention, approached him to be so appointed. Upon that it was agreed between the plaintiff and the defendant that the defendant would carry on and look after the business, by bestowing personal labour, and would receive advances from the company and make advances from his own pocket whenever necessary, would keep proper accounts of all income and expenditure and explain the same to the plaintiff, and would be liable to make good to the plaintiff all losses that would accrue by reason of negligent performance of the work; and that the profits would be divided half and half between the parties, but the loss, if any, would be borne entirely by the defendant. The defendant worked under this arrangement from 1st November 1919, till 15 April 1921. During this period the defendant was negligent in the performance of the work he was entrusted with and was also guilty of misfeasance and malfeasance, and did not render accounts. Consequently, on 15 April 1921, the plaintiff wrote to the company withdrawing the powers which he had conferred on the defendant to receive payments and do other acts on his behalf, and since then all connexion of the defendant with the plaintiff and with the business ceased.

(2.) The defendant had paid to the plaintiff in all Rs. 1,200. The prayers in the plaint were that it might be held that the defendant was bound to render account to the plaintiff for the period from 1 November 1919 to 15 April 1921, that he might be ordered to render such account, and that a decree might be passed against him for such amount as might be found due as the result of accounting and also for a sum of Rupees 4,376-3-0 which the company had deducted from the plaintiff's bills, after the defendant had ceased to work, on account of demurrage, back charges and store charges, for work which the defendant had done during the aforesaid period. The defendant took various pleas: it was averred that the suit was not maintainable in the form in which it was laid, because the relationship between the plaintiff and the defendant was not that of principal and agent, but that it was agreed between the plaintiff and the defendant's son Madan Gopal that the plaintiff would renew the contract with the company in his own name, that Madan Gopal would allow the plaintiff's name to stand in the office of the company and would carry out the works relating to the contract with his own men and money and keep the accounts, but that the defendant only managed the business for his son and had no liability to account. The terms, according to the defence, were that out of the net profits the plaintiff would get four annas and the defendant 12 annas, but it was admitted that the plaintiff was not to be liable for loss if any. It was denied that any amount had been deducted from the plaintiff's bills as alleged in the plaint. Charges of negligence, misfeasance and malfeasance were repudiated, and on the other hand it was contended that the business, which at the inception of that partnership was in ruins, attained a flourishing state during the defendant's management. Limitation was pleaded, it being said that the defendant worked till 5 April 1921, on which date he was removed by the plaintiff. It was also asserted that the plaintiff had received not Rs. 1,200 only but in all Rs. 2,517.

(3.) The Subordinate Judge held that the suit failed on the preliminary ground that it was not maintainable in the form in which it was laid. He nevertheless dealt with all the issues which had been framed and recorded his conclusions thereon. In the result he dismissed the suit. The first and most important question for consideration in this appeal is whether the suit in the form in which it was brought was maintainable. The Subordinate Judge held that the business in question was a partnership business within the meaning of Section 239, Contract Act, that the plaint was framed as if the relations between the parties were as those of principal and agent, while in reality the parties were partners, and that as the particulars required by Form No. 49, App. A of the Code had not been given, no decree in Form No. 21 of App. D of the Code could be made. He held therefore that the claim for accounts was not maintainable and that, inasmuch as the claim for damages was inseparable from the claim for accounts the latter claim too was incompetent. Now, it is quite true that the frame of the suit was not that of a partnership action, and read carefully, the plaint would seem to suggest that the cause of action was founded on such relations as exist between a principal and an agent, though the terms "principal" and "agent" appear nowhere in it. At the same time it is only fair to say that the defendant in his written statements nowhere explicitly took the plea that it was a partnership that existed between the plaintiff and Madan Gopal; but that, on the other hand, an out and out transfer of the business or rather its goodwill to Madan Gopal was suggested, it being said that the plaintiff was to get a four annas share of the net profits. The Subordinate Judge noticed this difficulty,for he observed: The defendant's case as made in the written statement is that the plaintiff transferred his business to the said Madan Gopal in consideration of participation in the net profits of the business to the extent of four annas out of 16 annas, and hence it is clear there was no allegation of partnership in the written statements.