MIRZA NAJM EFFINDI Vs. FIRM KOHINOOR FOOTWEAR CO

JUDGEMENT

(1.) These two second appeals arise out of one and the same suit brought by the plaintiffs appellants for rendition of accounts. There is a shoe and boots manufacturing firm at Agra known as the Kohinoor Footwear Company. By an agreement dated 16 September 1983, the said firm appointed Mirza Najm Effindi and Shakoor Ahmad Rana, the two appellants in the two appeals before me, as their sole agents for sale of its goods. The agreement was for a term of five years and after the expiry of that term the agents instituted the suit out of which these appeals arise on 11 September 1939, in the Court of the Munsif at Agra for rendition of accounts. The suit was originally brought by Mirza Najm Effindi in his name and Shakoor Ahmad Rana was made a pro forma defendant, but at a Subsequent stage Shakoor Ahmad Rana was also transposed to the array of the plaintiffs. It was alleged in the plaint that all the accounts, vouchers and correspondence relating to the business of agency were in possession of the defendant company and were in Gujrati characters with which the plaintiffs were unfamiliar. The plaintiffs prayed that accounts be taken and a decree be passed in favour of the plaintiffs for the amount that may be found due to them in respect of their commission.

(2.) The defence among other things was that the plaintiffs were agents, and as such, they were not entitled to sue the defendant company for rendition of accounts, that the accounts were settled year after year and were signed by the plaintiffs, and that a large amount was really due to the defendant from the plaintiffs as the latter had taken advance from time to time far in excess of the commission that they earned. The learned Munsif who tried the suit framed a number of issues and finding that in the special circumstances of the case the plaintiffs were entitled to sue for rendition of accounts and that there was no proper settlement of accounts at least after 6 November 1934, he gave the plaintiffs a decree directing that accounts be taken of all transactions beginning from 6 November 1984. At a later stage the defendants made an application before the learned Munsif taking up a legal plea that the plaintiffs constituted a firm and as it was not registered they were debarred by Section 69, Partnership Act, from bringing the suit. The learned Munsif, however, held that this plea had no force. As against this decree the defendants filed an appeal to the District Judge and it was heard and decided by the Judge, Small Cause Court, exercising the powers of a Civil Judge. The learned Civil Judge agreed with the learned Munsif that in the circumstances of this case, the plaintiffs were entitled to bring a suit for rendition of accounts. He further held that Mirza Najm Effindi was bound by the admission of Shakoor Ahmad Rana which he made by signing the accounts year after year. He disagreed with the learned Munsif on the legal point and held that the plaintiffs being partners in a firm which was unregistered could not bring the suit. In the course of the arguments before the learned Civil Judge it was argued that under Section 92, Evidence Act, no oral evidence could be adduced to show any variation in the rate of commission, but it was not accepted by the learned Civil Judge. FINDINGS.

(3.) On the question whether Section 69, Partnership Act, was a bar to the suit, I agree with the learned Munsif and think that the learned Civil Judge did not come to a right conclusion on that point. In order to apply Section 69, Partnership Act, it shall have to be determined whether the plaintiffs were partners within the meaning of that Act. In Section 4 of the said Act it is laid down: Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with, one, another are called individually partners and collectively a firm , and the name under which their business is carried on is called the firm name .