OBALA NAGENDRA AIYAR Vs. THUMATTI MUTHIA BHAGAVATHAR

JUDGEMENT

(1.) This second appeal arises out of a suit by five plaintiffs, members of a certain firm called N.A.P. S.R.N. Venkatarama Aiyar and Co., to recover certain amounts due from the defendants who are the partners of another firm known as T.M.R. S. Muthia Bhagavathar and Co. The District Munsif gave a decree. On appeal the Subordinate Judge reversed the decree and dismissed the plaintiffs suit. Plaintiffs 2 and 3 are the appellants before me. The other plaintiffs have 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 the 5 plaintiff, and the 2nd defendant Rangaiyar are the members of the firm N.A.P. S.R.N. While that firm was going on the 2nd defendant wanted to start another firm. But as the new firm would require some capital he arranged that the N.A.P. S.R.N. 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 the N.A.P. S.R.N. firm should get one-third of the profits of the new firm. To evidence this arrangement Exhibit I 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 the 2nd defendant for being used as capital of the new firm. Again on 29 October 1917 the plaintiffs firm advanced cloths to the value of Rs. 653 to be used for a similar purpose. Two days later, on 31 October, a sum of Rs. 400 was similarly advanced. All these items, the moneys and cloths, were handed over to the 2nd defendant who handed them over to the new firm. The present suit is virtually a suit to recover the value of these three sums minus Rs. 185 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 Rangaiyar, the 2nd defendant, and that the 2nd defendant 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 the 2nd defendant and the other between the 2nd defendant 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 in which referring to the notice sent by plaintiffs prior to suit on 25 October 1920 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. The second issue is "If so, is the present suit as framed not maintainable?" The third issue is "Were the amounts referred to in paragraphs 5 and 6 of the written statement advanced by the 2nd defendant only and not by the plaintiffs as alleged by them?" This was really intended to raise the plea already stated by me. The fifth issue is merely a general issue.