RAM CHANDRA SAHU Vs. KASEM KHAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of money. The claim has bean decreed against the first defendant but dismissed against the second. The question in controversy now is, whether the plaintiffs are entitled to a decree against the second defendant, and if so, for what amount.

(2.) The plaintiffs are money-lenders. The first defendant is a contractor. Among various works which he had undertaken, he had in hand a contract under the Bengal-Nagpur Railway Company in connexion with what is known as the Kharagpur Line Sub-Division. In this business, the second defendant was his partner under a deed executed on the 28 June, 1920, though the partnership had commenced on the 28 March, 1920. The partnership was dissolved by a con-sent decree on the 16 June, 1922, in a litigation between the defendants. The plaintiffs seek to recover from the defendants three sums of money for three successive periods. The first period covers the time between the 11 January, 1920, and the 28 March, 1920, that is, the period immediately antecedent to the formation of the partnership between the defendants. The second period covers the time between the 3 April, 1920 and the 12th June, 1920. The third period covers the time between the 14 June, 1921, and the 25th September, 1921. The second and the third periods, it will be observed, are subsequent to the formation of the partnership between the defendants. The plaintiffs, however, have distinguished between the two periods on the ground that it was not till the 13 June, 1921, that they became aware of the existence of the partnership. It is plain that as regards the small amount; claimed in respect of the first of these periods, the second defendant cannot be held liable, because at that time there was no partnership between the two defendants. We are consequently concerned with the sums claimed in respect of the second and the third periods.

(3.) The case for the plaintiffs is that the contract business already mentioned was carried on by the first defendant on be-half of the partnership that in order to enable him to carry it on he took loans from the plaintiffs on promissory notes and that the sums so borrowed were in fact applied for the partnership concern. These allegations, however, have not been made out; the evidence was not specifically directed to these points, and its seems their significance and importance was not fully realized. The accounts which were produced at a very late stage of the proceedings could not be scrutinised in the original, as they were written in characters difficult to decipher; and when the translations were placed in the hands of the Court, it was impossible to deal with the question satisfactorily. Apart from this, the grounds assigned by the Subordinate Judge for dismissal of the suit against the second defendant are open to criticism and there has consequently been considerable discussion at the Bar as to the liability of a dormant partner.