GIOVANI GORIO Vs. VALLABHDAS KALIANJI

JUDGEMENT

(1.) This suit is brought by Messrs. B.G. Gorio & Co., a firm, against the three defendants, Vallabhdas Kalianji, Manilal Premchand and Dwarkadas Naranji, as members constituting the firm of Lakhmidas Vallabhdas and Co., to recover the losses on certain indent dealings. Defendants 1 and 2 appear and admit the plaintiffs claim in full.

(2.) The only question which I have been asked to try so far in this Court is, whether defendant No. 3, Dwarkadas Naranji, was a partner in the firm of Lakhmidas Vallabhdas, and, as such, was, and still is, liable to the plaintiffs.

(3.) We start from the admitted proposition that defendant No. 3 was a partner of the firm up to the 9th of November 1912 I say that this is admitted because there is nothing in the written statement to suggest the contrary and the fact has been explicitly admitted by defendant No. 3 in his own correspondence exhibited in the suit. It is true that at the trial his counsel sought to start an entirely new defence, namely, that he never was at any time a partner in this firm. I cannot encourage a deliberate falsehood of this kind, nor can I allow pleadings to be so far extended as to embrace an entirely new, and, on the face of it, an entirely false, defence. I, therefore, confined defendant No. 3 strictly to his pleadings and his admissions. In my opinion, the written statement itself could mean nothing else than that defendant No. 3 had never thought of denying that he had been a partner in Messrs. Lakhmidas Vallabhdas & Co., and that construction is amply borne out by the admissions contained in his letters, notably the letter of the 19th November 1914. When he decided to contest the suit, he evidently relied upon the special doctrine of the English law, namely, that, as a sleeping partner, of whose existence no indication was given by the name of the firm, he would not fall within the scope of Section 264 of the Indian Contract Act; and so advised he framed and limited his defence. Coming to trial, I suppose, after the usual consultations, his legal advisers probably thought that defence was not so sound as it might be, and, therefore, wished to supplement it by striking out an entirely new line and putting the plaintiffs to the proof of the fact that defendant No. 3 had at any time been a partner in the firm of Lakhmidas Vallabhdas.