OHLA NAGENDRIER Vs. THOOMATHI MUTHIAH BAGAVATHAR

JUDGEMENT

(1.) This second appeal arises out of the suit by five plaintiffs members of a certain firm called N. A. P. S. R. M. Venkatarama Aiyar & Co., to recover certain amounts due from the defendants who are the partners of another firm known as T. M. R. S. Muthiah Bagavathar & Co. The District Munsif gave a decree. On appeal the Subordinate Judge reversed the decree and dismissed the plaintiff's suit. Plaintiffs 2 and 3 are the appellants before me. The other plaintiffs had been made respondents.

(2.) The facts of the case will now be stated. One Perumal Aiyar, whose widow is the 4th plaintiff and daughter-in-law is plaintiff 5, and defendant 2 Ranga Aiyar are the members of the firm N. A. P. S. R. M. While that firm was going on, defendant 2 wanted to start another firm. But as the new firm would require some capital he arranged that the N. A. P. S. R. M. firm should lend up to the limit of Rs. 1,000, to the new firm to enable it to carry on its business. It was agreed that at the end of three years accounts should be taken of the new firm and that the N. A. P. S. R. N. firm should get one-third of the. profits of the new firm. To evidence this arrangement Ex. 1 was executed on 10 October 1917. It is conceded before me that the new firm took shape on 1 Arpisi 1917, that is 17 October. A week before the formation of the new firm the plaintiffs firm advanced Rs. 100, to defendant 2 for being used as capital of the new firm. Again on 29 October 1917, the plaintiff's firm advanced cloths to the value of Rs. 653, to be used for similar purpose. Two days later, on 31 October, a sum of Rs. 400, was similarly advanced. All these items, the moneys and the cloths were handed over to defendant 2 who handed them to the new firm. The present suit is virtually a suit to recover the value of three sums minus Rs. 180, which was the value of some cloths which were returned out of the cloths advanced by the plaintiffs firm. The defendants plea in the written statement was that there was no dealings between the plaintiffs firm and the defendants firm and that the plaintiffs lent money or sold goods to Rangaier, defendant 2, and that defendant 2 sold these goods or advanced these moneys to the defendants firm, or in other words there were two distinct contracts, one between the plaintiffs firm and defendant 2 and the other between defendant 2 and the defendants firm and that there was no privity between the plaintiffs firm and the defendants firm and therefore the suit was not maintainable. It is true that there was a further plea in para. 7 of the written statement with reference to the notice sent by the plaintiffs prior to suit on 25 October 1920, and where they say that the suit is not also maintainable on the ground that a suit for the capital alone is not sustainable in law. That plea no doubt implies that the plaintiffs firm was a partner in the defendants firm. But they have not actually pleaded that the plaintiffs firm was such a partner. That plea merely amounted to saying that on the facts alleged in the plaintiffs notice, whatever they may legally amount to, the suit is not maintainable.

(3.) Five issues were framed. We are not concerned with the first and the fourth issues as there is no dispute about them,