GHISULAL-GANESHI LAL Vs. GUMBHIRMULL-PANDYA

JUDGEMENT

(1.) This is an appeal against a judgment of Buckland J. in a suit to recover a sum of Rs. 22,023 odd alleged to be due upon an adjustment of accounts and in respect of subsequent dealings and transactions. There were two firms named respectively Rekhab-chand Ghisulal and Ganeshilal Lachminarain. The firm of Rekhabchand Ghisulal carried on business in Calcutta as commission agents and consisted of four partners, viz. Ghisulal Chabra, Keshirmull Chabra, Ghogalal Keshriwal and Sunderlal Chabra who was a minor. The firm of Ganeshilal Lachminarain carried on business at Dhullian and consisted of Lachminarain, Badulal and Begraj. The fact that Badulal and Begraj were partners was during the proceedings denied by them and has been to some extent in issue in this appeal. But I am satisfied at any rate, that Badulal was a partner. On 2 March, 1924, these two firms agreed to carry on business together as a firm in the name of Ghisulal Ganeshilal, that is to say, the new firm was to consist of the six or seven persons whom I have mentioned as being members of the other two firms. The agreement was in writing and was in the following terms: Sri Parameswar. The deep blessings of Ganesh Lall Lachmi Narayan to Bhai (brother) Rekhabehandji, Ghisu Lall, Chabra of Baloochar, which please accept. Further we have opened a shop in Duliyana wherein the shares (will be) as follows :-We shall give annas 7 (share) to you, Rekhabchand Ghisulal. Annas 9 (share) will belong to ourselves, Ganeshlal Lachminarayan. In words, annas seven will be yours, annas nine ours. Further, goods bought (for the shop) will be ordered from your gaddi in Calcutta. The Calcutta expenses (will be) as follows :- Commission 0-8-0, brokerage 0-4-0, bale (baling?) expenses will be charged according to rule. And the muddat (period) for cloth will be deducted on back of the consignment rate at 1-8-0 in words, one rupee and eight annas per cent. Further, deduction will be made at 2-13-0 in words, two rupees and thirteen annas, in respect of Ganzies (under vests) and warm (woollen) cloth and all kinds of warm (woollen) goods ordered and interest on money will be charged at annas 10 in words, ten annas. And commission on silver and gold will be charged at annas 2 in words, two annas per cent. And if there be any hundi transactions, hundawan (commission on hundi transactions) will be charged at 0-2-0 per cent. on hundis drawn by us from here. As above. Further, the fooding charges of the person staying in the shop, as well as those of (his) women and children (family) will be entered in the (account of the) shop. And if the proprietor (any of the proprietors) stays in the shop, Rs. 401, in words, four hundred and one per year (will be entered) on his account. If Badu Lall or any other person stays (in the shop), then his expenses per year, as well as those of the women, will be entered in the (account of the) shop. All expenses in connexion with the shop, sundry expenses, shop expenses, the expenses for the journey to and from Calcutta, if it be necessary to go there for a marriage and the expenses of going there for the purpose of (performing) the Nukta (Sradh and other funeral ceremonies), shall be entered in the (account of the) shop. Further, items entered in the Dharma account shall be entered in the (account of the) shop. Dharmada will not be sent elsewhere out of the Duliyana shop. And (expenses in connexion with) marriages, etc. and Nukta ceremonies shall be debited to the party concerned. And (the cost of) clothes, etc., ornaments and jewelleries that are made shall be debited to the party concerned. It shall be debited to the party that makes them. Further, out-standings and sums due to the shop shall remain (shall be divided) according to the respective shares. Further, the entire business shall remain in charge of the person who stays in the shop transactions with parties and all work shall remain in his charge. Further, outstandings shall remain outstanding according to the existing respective shares. The parties shall take (realize) the outstandings according to their respective shares. The shop shall bear the name of Ghisulal Ganeshi Lall and balance sheets will be struck year after year (every year). The murat (auspicious day ceremony) will be, performed in the shop on Miti Chait Sudi 9, Sambat 1981. Miti Fagoon Badi 12, Sunday of Sambat 1980. Sig. of Ganesh Lall Lachmi Narayan Kala of Duliyana by the pen of Lachmi Narayan. Sig. of Badu Lall.

(2.) The new firm, as is stated in the agreement, was to carry on business at Dhullian in a shop which the firm of Ganeshilal Lachminarain had already opened there. Goods for this shop were to be ordered from the gadi of Rekhabchand Ghisulal in Calcutta upon the terms stated in the agreement. Dealings upon the basis of this agreement continued until 19 February 1930, when according to the plaint, accounts were compared and a sum of Rupees 16,523 odd was said to be found due from the firm of Ghisulal Ganeshilal to the firm of Rekhabchand Ghisulal. This adjustment was denied by the defendants and in opening the case, counsel for the plaintiffs conceded that there had been no adjustment and that if the plaintiffs were entitled to relief, it would have to be upon the basis of an account to be taken.

(3.) In April 1930, Ghisulal Keshrimull and Chogalal Keshriwal were adjudicated insolvent. On 22 December, 1931, the Official Assignee assigned the right, title and interest of the insolvent firm of Rekhabchand Ghisulal in Calcutta in the outstandings due by the firm of Ghisulal Ganeshilal of Dhullian to the plaintiffs for Rs. 3500. On 1 September 1932, a suit was filed by the plaintiffs on that assignment, that being a suit founded on the same cause of action as that on which the present suit was founded. But that suit was dismissed on 16 May 1933, because leave had not been obtained under Clause 12, Letters Patent and consequently, this Court had no jurisdiction to entertain the suit. On 2 August, 1933, the present suit was filed. Various defences were raised : (1) that the suit was barred by limitation; (2) that the only right which Rekhabchand Ghisulal had was to sue for an indemnity and for accounts, that it was a right coupled with the liability of the agent and that a commission agent could not be regarded as the creditor of his principal. For these reasons, his right, whatever it was, could not be assigned; (3) that assuming that there was a debt, assignment must be of the whole debt, and as Sunderlal had an interest in the firm and his interest could not be assigned because he was a minor and had not been adjudged insolvent, therefore the assignment was not of the whole debt; (4) that even assuming that a part of the debt can be assigned in law, that part was left indefinite because Sunderlal's interest, whatever it might be, had never been ascertained; (5) that if accounts were necessary to be taken, the infant Sunderlal and the insolvents were necessary parties and they must render accounts before they could be entitled to indemnity; (6) that the suit was not competent, because it was a suit by some partners against other partners in the same firm and that the only way of adjusting the differences between them was by taking partnership accounts; and (7) that the suit was against the defendants in their firm name, and that they had ceased to carry on business prior to the issue of the writ. On the first point, viz. that of limitation, Section 14, Limitation Act provides that: In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of. first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.