ABDULALLI BADRUDIN Vs. EANCHODLAL TRIKAMLAL

JUDGEMENT

(1.) The plaintiff sued to recover Rs. 11,817-14-6, with further interest at six per cent, from date of suit until realization, and costs from the estate of the defendants, being the parties interested in the firm of Farjulla Nurbhai, a dissolution of which had been decreed by the Court at Godhra in a partnership suit in the year 1909. The claim was based upon an original liability of the firm of Farjulla Nurbhai to the plaintiffs father Tricumlal Damodardas for Rs. 9,826 which is found credited in the firm s books to Tricumlal Damodardas under date Shravan Vad 3rd 1950, and debited in the firm s accounts of Farjulla Nurbhai. The details of the cash entry show that it was paid on account of the Ras or joint account of four persons Tricumlal Damodar and Jalalbhai Karmulabhai and Sulemanjj. Lukmanji and Badruddin Sarafali. That was a joint account in which Tricumlal Damodar and Jalalbhai Karmulabhai. were entitled to the 1/4th share each, and Sulemanji Lukmanji and Badruddin Sarafali, which was the name under which the partners of Farjulla Nurbhai went for the purpose of this particular joint transaction, were interested in the 1/4th share each. The joint account was in respect of a sum of Rs. 33,000 and odd advanced to a certain Thakor, Rs. 24,000 of which was payable to his creditor one Jethalal, in respect of which Jethalal was satisfied by the persons interested in the joint account. Rs. 9,826 represents apparently the sura advanced by Tricumlal Damodar to the firm of Farjulla Nurbhai to enable them to satisfy their liability as participants in this joint transaction. It does not appear to us upon the entries which have been referred to that the contention advanced for the appellants should be accepted, namely that Rs. 9,826 was advanced not only to the firm of Farjulla Nurbhai, but to them jointly with Tricumlal Damodar, the person to whom the money is credited, and his other co-lenders in the transaction with the Thakor. We read the accounts as showing that the liability of Rs. 9,826 rested upon the firm of Farjulla Nurbhai, and that Tricumlal Damodar remained the creditor for the whole amount. The firm of Farjulla Nurbhai never paid the sum due to Tricumlal, but as is abundantly proved to have .been the custom in their firm, they executed acknowledgments from time to time to save limitation, such acknowledgments being signed by one or other of the partners. The practice was not confined to transactions with Tricumlal Damodar, for the evidence of the witness No. 77 shows that it was followed with regard to various other creditors, and that the Bakees were signed by different members of the partnership.

(2.) Carrying on the history of this transaction of Rs. 9,826 we find a Bakee, Exhibit 119, entered in the Interest book of the plaintiff s firm for Rs. 9,179-13-9 found to be due on taking accounts signed in the name of the firm Farjulla Nurbhai, by the hand of Sulemanji Lukmanji, with a promise to pay the sum on demand. That is in 1952. There is another similar Bakee in 1955, the 3rd in 1958 and the 4th in 1961. That Bakee of 1961 was the Bakee which was outstanding at the time of the so-called promissory note sued upon by the plaintiffs in this suit. The promissory note was executed in 1908, after the institution of a suit for the dissolution of the partnership of Earjulla Nurbhai. It is in similar terms to the Bakee which was at that time outstanding, being an acknowledgment of indebtedness upon taking accounts with a promise to pay on demand.

(3.) The question is whether the person making that so-called promissory note at that time had authority to bind the partners, who are defendants in this suit, or their representatives. A charge of fraud was put forward in the written statements that Haideralli, the person making the promissory note, had colluded with the plaintiff s to pass it and got a balance struck by the plaintiffs for the amount that was stolen from the Pitha-Khata. We do not find, however, that any issue was raised upon this allegation, and no charge of fraud was specifically made or gone into in the lower Court, although there was a quantity of evidence recorded, which might possibly have some bearing on the question of fraud or no fraud, if that were the question before the Court. We do not think that having regard to the issues in the case, we should allow the question of fraud to be gone into at this stage.