ABDUL SOBHAN Vs. BENIMADHAB KSHETTRI

JUDGEMENT

(1.) The facts involved in this appeal are as follows: The plaintiffs alleged that on various dates between 25 September 1930 and 5 November 1930, they advanced to the defendants Abdul Eazak and Abdul Sobhan a sum of Rs. 10,000 which the latter undertook to repay with interest, at the rate of 12 per cent per annum. The plaintiffs further alleged that both, the defendants, who are father and son, carried on business in co-partnership. Defendant 2, Abdul Sobhan, in his written statement denied that he carried on business in co-partnership with Abdul Razak, and further contended that the plaintiffs suit was barred by the principle of res judicata. He also added as-follows: The defendant denies that the plaintiff's lent and advanced to this defendant in the defendants businesses mentioned in the cause title to the plaint the sum of Rs. 10,000 with interest at the rate of 12 percent per annum on the various dates given in the particulars of para. 1 of the plaint. This defendant had nothing to do with the business referred to above, and if any sum was lent this defendant is not liable to pay the same.

(2.) The suit came up for hearing before my learned brother Buckland, J. Defendant 1 did not deny the loan, and his defence to the suit having been previously disposed of, a decree had been made against him. As regards the defendant Abdul Sobhan, Buckland, J's attention was drawn to the judgment of Ameer Ali; given in the Insolvency Jurisdiction of this Court, whereon it was contended on behalf of this defendant that the suit was barred by the principle of res judicata; but Buck-land, J. was of opinion, for the reasons given by him, that the present suit was not barred by the principle of res judi-cata. On the question whether or nob Abdul Sobhan was a partner with his father Abdul Razak in the businesses for which the money was borrowed, Buckland, J. after considering the evidence, came to the conclusion that the defendant Abdul Sobhan was a partner at all material times with Abdul Razak and that he must be held liable with him for the moneys claimed in the present suit. He accordingly passed judgment against Abdul Sobhan for the amount claimed.

(3.) It is against this judgment that Abdul Sobhan has preferred the present appeal. At the hearing before us, the learned counsel on behalf of the appellant did not seriously dispute the correctness of the finding of Buckland, J. on the facts whether or not Abdul Sobhan was a partner with his father Abdul Eazak. After going through the evidence on record, we intimated to the learned counsel for the appellant that we were not prepared to take a different view on the facts. The learned counsel for the appellant thereupon intimated that he relied most strongly on the judgment of Ameer Ali, J., in the Insolvency Jurisdiction of this Court and contended that the conclusion of Buckland, J. on the question of law, namely whether the present suit was or not barred by the principle of res judicata was unsustainable. Before we go further into the question on the point of res judicata it may be useful to summarise very briefly what the position was before Ameer, Ali, J., in the insolvency case. The matter came on before Ameer Ali, J. on an application by six: creditors to adjudicate two persons, namely Abdul Razak and Abdul Sobhan-described as carrying on business in copartnership under the name, style and firm of Abdul Eazak and Abdul Sobhan & Company. Among the six creditors were the present plaintiffs. Ameer Ali, J. held definitely that neither Abdul Razak nor Abdul Sobhan had committed any available act of bankruptcy. The father, Abdul Eazak, had not committed any act of bankruptcy, and it appeared that the only allegation-against Abdul Sobhan was that he was affected by Abdul Eazak's bankruptcy in-the circumstances stated, assuming the Court found Abdul Razak had committed an act of bankruptcy. The learned Judge observed as follows: In a petition like this where two individuals: are sought to be adjudicated on a joint petition, it is necessary to establish: (1) that the persons in question are partners; (2) that the debt is a joint debt;and (3) that there is either a joint act of insolvency of the two persons or (4) that each person has committed some act of insolvency. With regard to Abdul Sobhan, the difficulties, are as follows: In the petition, beyond the mere-statement that Abdul Razak and Abdul Sobhan are sole proprietors, there is no evidence as to this. The affidavits in opposition in dealing with the prosecution of Abdul Razak in the police Court (referred to in para. 10 of the petition) give details, from which I think it is to be inferred that, during the prosecution, the hundi creditors, including the petitioning creditors, regarded Razak as the sole proprietor of the firm Benimadhab Kshettri, in more than one place alleges that Razak when drawing the hundi represented that he was doing so on behalf of the firm in question, but this, in the circumstances, I do not credit. In reply, there are affidavits directly to the effect that Abdul Sobhan is a partner. There is further a reference to a suit., brought by a firm of Abdul Razak Abdul Sobhan.. As regards the latter, it would appear to indicate that there must be business relationship of some kind or other between the father and son and as what, If any explanation could be given., is a matter with which I am not concerned. Having regard to Razak's denial, the fact may be used to discredit his evidence. The fact remains that, in this application, it must be established that Sobhan is a partner in the firm of Razak. In my view, that has not been satisfactorily established. Apart from this, I am not satisfied with the evidence of either of the acts (b) and (c). With regard to (b), the mortgage, for which no date was given, was apparently of 11 August 1931. With regard to (c), there is the fact which always appears to me anomalous that the petitioning creditors had no difficulty in serving (in this case on Razak only) the notice personally. Further, in some of the affidavits or in one of the affidavits in reply, it is stated that both may be found almost daily in their place of business. I am not satisfied with this class of evidence on those points and therefore the petition as against Sobhan must be dismissed.