MULCHAND HEMRAJ Vs. JAIRAMDAS CHATURBHUJ

JUDGEMENT

(1.) Plaintiffs firm carried on-business in Bombay as commission agents at the date of the suit, but has since been dissolved. They acted as commission agents in Bombay for the firm of Chaturbhuj Pitamberdas & Co., and filed this suit to recover from the defendants as constituting the firm of Chaturbhuj Pitamberdas & Co. the sum of Rs. 29,984-12-0 with further interest in respect of their several dealings with the firm. According to the plaintiffs, the original 1 defendant and his two sons, the 2nd and 3 defendants, formed a joint and undivided Hindu family of which the original 1 defendant was the karta or manager ; the 4 defendant and his son the 5 defendant formed another joint and undivided Hindu family of which the 4 defendant was the manager; and the original 1 defendant and the 4 defendant on behalf of themselves and their respective joint families and the 6 and 7 defendants-carried on business in partnership in the name of .Chaturbhuj Pitamberdas & Co. at Behrein in the Persian Gulf. It is the plaintiffs case that on June 22, 1925, a sum of Rs, 12,082 was found due and payable to them at the foot of the account of their dealings with the firm, and the original 1st defendant signed an acknowledgment in the plaintiffs books of the correctness of the account. I may mention here that it was pointed out by plaintiffs counsel that the date mentioned in the plaint, viz., July 10, 1926, is a mistake for June 22, 1925, as the calculation ought to be according to the, Sindhi year which terminates at the end of Jeth and begins from Ashad Sud 1. The acknowledgment was signed on behalf of the firm of Chaturbhuj Pitamberdas & Co.; the original 1st defendant has admitted liability not only for himself, but for "us", presumably meaning his firm.

(2.) It is the plaintiffs case further that they and Chaturbhuj Pitamberdas & Co. did business in partnership in pearls in Duboi, also in the Persian Gulf, in the name of Gordhandas Dwarkadas Chaturbhujdas Pitamberdas since about May, 1924. Gordhandas and Dwarkadas are the sons of Mulchand Hemraj a partner of the plaintiffs firm since deceased. The shares of the plaintiffs and of Chaturbhuj Pitamberdas & Co. in the pearl business were equal. The names of the partners representing Chaturbhuj Pitamberdas & Co. in the written agreement of partnership are those of the 1st, 4 and 6 defendants only, but it is stated that the firm at Duboi shall be managed by the 6 defendant as well as the 7th defendant who are admittedly partners of Chaturbhuj Pitamberdas & Co., and the share of Chaturbhuj Pitamberdas & Co. is mentioned in Clause 10 as eight annas in the rupee. There was a loss in the pearl business, and the share of the loss debitable to Chaturbhuj Pitamberdas & Co. along with some cash drawings came to Rs. 10,064-9-6. This amount was debited to Chaturbhuj Pitamberdas & Co. in the account of the commission agency business in the plaintiffs books in Bombay on the instructions contained in a letter written to the plaintiffs by the 1st, 4 and 6 defendants, the correct date of which is May 28, 1925, and in another letter by the 7 defendant, also written to the plaintiffs and dated June 24, 1925. The acknowledgment was signed by the original 1 defendant in the plaintiffs books after the sum of Rs. 10,064-9-6 had been debited according to the instructions of the 1st, 4 and 6 defendants. Thereafter, there was a further loss in the pearl business, and the amount of the loss debitable to Chaturbhuj Pitamberdas & Co. came to Rs. 15,760-1-6. This sum was also debited to the firm of Chaturbhuj Pitamberdas & Co. in the commission agency account in the plaintiffs books in Bombay under the instructions of the 1st, 4 and 6 defendants conveyed to the plaintiffs by a letter, the correct date of which is June 3, 1926. A sum of Rs. 20 was paid to the plaintiffs on or about February 27, 1928, and after debiting interest at six per cent, and other items of expense and some cash drawings to Chaturbhuj Pitamberdas & Co. and after crediting them with their share of the outstandings recovered in the pearl business, a sum of Rs. 29,984-12-0 was found due and payable to the plaintiffs at the foot of the account on March 22, 1928. Plaintiffs have filed the suit to recover this sum from the defendants jointly and severally, and it is added in parenthesis in the prayer of the plaint that the 2nd, 3 and 5 defendants are liable "only to the extent of their respective interests in the respective properties of their respective joint family firms."

(3.) Different written statements have been filed on behalf of the defendants. The original 1 defendant and the 4 and 6 defendants contend that the acknowledgment is not valid and binding on the firm of Chaturbhuj Pitamberdas & Co. as the plaintiffs admitted to the 6 and 7 defendants on or before February 27, 1928, in Bombay that the accounts had not been adjusted, and that they would not make a claim against the firm until the final disposal of another suit, viz., Suit No. 2260, of 1927, and that therefore this suit is premature. The sum of Rs. 20 was according to them paid expressly at the plaintiffs request to save the bar of limitation. They further say that they ; and the 7 defendant alone were partners in the firm of Chaturbhuj Pitamberdas & Co., and that some of the partners of the plaintiffs firm did business in pearls in partnership with the 1st, 4th and 6 defendants. They do not admit the correctness of the account, and say that the acknowledgment was signed by the original 1 defendant, and certain letters were written to the plaintiffs, on false representations made by the plaintiffs. They, therefore, counterclaim for the taking of the accounts of the commission agency and the pearl business. The 2nd, 3 and 5 defendants deny that they are members of the respective joint families alleged by the plaintiffs, or that they were in any way concerned with the business of Chaturbhuj Pitamberdas & Co. either in commission agency or in pearls. The 7 defendant denies that he was a partner in the pearl business. He also denies the validity of the acknowledgment, and says that on correct accounts being taken of the commission agency dealings between the parties nothing will be found due to the plaintiffs.