BAJRANGLAL MANIRAM SINGHVI AGARWAL Vs. ANANDILAL RAMCHANDRA POTDAR

JUDGEMENT

(1.) THE parties to the suit had worked a ginning and pressing factory in the year 1933-34 in partnership in which defendant X (appellant) had a four-anna share. The partnership was entered into between defendant 1 and Nandlal and Banarsilal. Nandlal is dead. He had a six-anna share in the part nership, and Banarsilal had a six-anna share. The present plaintiff is a brother of Nandlal and is the manager of the family consisting of himself and his two minor brothers and as such is the representative of Nandlal.

(2.) THE partnership was for the season of 1933-34 and as such terminated on 3lst May 1934 by efflux of time. The plaintiff stated that on the dissolution of the partnership, which took place on 81st May 1934 there was a settlement of accounts between the parties on 16th July 1934 and it was ascertained that the total loss in the partnership was Rupees 8358-9-0. The share of defendant 1, who owned a four-anna share in the partnership, was found and settled at Rs. 2089-10-3. Defendant 1 having accepted the settlement of accounts and the amount of loss payable by him agreed to pay the same by making some cash payment and by taking over hawala in respect of dues payable by Nandlal to the Municipal Committee, Pandharkavada, and to pay the rest later on. Defendant 1 as per agreement actually paid Rs. 426-4-9 on 16th July 1934 and executed a chithi (Ex. P-1) on the same date acknowledging his liability for the loss and agreeing to pay Rs. 1373-11-3 to the Municipal Committee, Pandharkavada, which was due from Nandlal. Defendant 1, however, failed to pay the dues to the municipal committee as promised and did not pay the balance either. As Nandlal, the original financing partner is dead the present plaintiff as representing Nandlal instituted this suit for recovering the amount due. After giving credit for Rs. 426-4-9, the amount due from defendant 1 is Rs. 1663-5-3. The plaintiff demanded this amount from defendant 1 several times and eventually served a notice on him (Ex. P-2) on 7th April 1937 calling on him to make the payment as per settlement arrived at between the parties within eight days from the receipt of notice failing which he informed defendant 1 that interest at 1 per cent, per mensem would be charged and legal action would be taken against him. As defendant 1 did not pay the amount due in spite of this notice of demand, the plaintiff claimed interest by way of damages at 1 per cent, per mensem from 16th July 1934 to 30th June 1937, when he instituted his suit. The total amount claimed was Rs. 2253-3-3.

(3.) BOTH the Courts below have held that the partnership terminated on 3lst May 1934 and that a suit for dissolution of partnership and settlement of accounts was barred by time. This finding is not challenged by any party. Both the Courts below have also held that there was a settlement of account between the parties on 16th July 1934 accompanied by a promise to pay and that the plaintiff had a cause of action on that basis. The trial Court held that defendant 1 was entitled to have the settled account reopened as there were certain errors in the same and gave a direction for a general reopening of the account. The lower appellate Court, however, held that defendant 1 was not entitled to reopen the accounts generally but only with respect to specific items which he might think fit to challenge. One of the contentions of the appellant in the Court below was that there was no agreement to pay interest on the advances made by plaintiff's brother Nandlal when he entered into the partnership. The trial Court has decided against the appellant on this point. The lower appellate Court left the question at large because the trial Court had not framed any issue regarding the plaintiff's claim to get interest by way of damages on account of the failure of the appellant to pay the amount found due; it wanted that question also to be decided by the trial Court. The result was that the lower appellate Court remanded the case to the trial Court. It set aside the preliminary decree passed by the trial Court and directed the trial to proceed in the light of the remarks made in its judgment. It is against this decision that defendant 1 has come up in second appeal and the plaintiff has filed cross-objections.