ARUMUGAM PILLAI Vs. AKADIR MOHIDEEN ROWTHER

JUDGEMENT

(1.) There has not been a proper trial in this case. The plaintiff sued defendants to recover what was due from them on accounts and what was due from others on defendants guarantee.

(2.) The 1 defendant counter-claimed, damages for arrest before judgment. He alleged that he was a partner with plaintiff and that he was not liable in this suit without taking an account of the partnership. The only issues framed by the Subordinate Judge were : (1) Is the claim true? (2) Are any of the defendants liable? Obviously there should have been-issues on the questions whether the plaintiff and the 1 defendant were partners in the business, in which these debts were incurred and secondly whether the 1 defendant had personally guaranteed payments of the accounts of all customers whom he recommended to deal in plaintiff's shop ; and lastly whether the plaintiff's application to arrest 1 defenant before judgment was justified upon the grounds stated in Order 38, E. 1, civil Procedure Code. No deed of partnership and no security bond were produced. The Judge has referred to some of the oral evidence, but not to the statement of plaintiff that the 1 defendant stood surety for four or five persons, but the accounts of about 90 persons had been debited to him. No attempt has been made to differentiate between articles shown in the accounts as taken by defendant and others taken by customers on his recommendation, or to distinguish between recommendations as to credit made without undertaking personal liability and a contract of guarantee. On this point there should be satisfactory proof that the defendant intended to make himself personally liable: Exs. 1, 1(a) and 1 (b) are consistent with either theory. The Judge observed that there was no evinceed as to damages sustained by 1 defendant's arrest. A Court may in such a case award "eneral damages (vide) Subraya Davay v. Venkatarama Aiyar [1911] 3 L.W. 30. It is difficult to believe that defendant, an employee under Government suffered no loss in reputation by the arrest.

(3.) The decree is set aside and the suit is remanded for retrial on the evidence already recorded and such additional evidence as the parties may adduce upon the points referred to above. The costs will abide and follow the result.