MAGNAMOYI RAI Vs. BROJENDRA LAL DAS CHOWDHURY

JUDGEMENT

(1.) The plaintiff and defendants 6 to 8 in the first suit who are defendants 2 to 4 in the second suit, were partners in a business. They fell out and the present suits were brought by the plaintiff. The first suit which we will call the money suit was for recovery of a sum of money, being one-third share of the plaintiff in certain ornaments and cash which were in the iron safe of the firm and were wrongly taken away by the defendants. Her case against defendant 1 was that he in collusion with the partners, misappropriated the ornaments and cash taken out of the iron safe. There were four more defendants, the neighbouring shop- keepers, who were said to have helped the other defendants in the taking out of the money and articles. The defence was that the plaintiff's brother Rama Charan was at one time acting as the manager of the firm and he was dismissed because 01 his defalcations, and defendant 1 was requested by the other partners to help them in the payment of creditors and for that purpose money was taken out of the safe and applied in the payment of the debts of the firm. As regards the ornaments the defendants were willing to produce them in Court and to abide by the order of the Court with regard to their disposal. The Munsif who tried the case found that the defendant's version of the story was true and the suit for money was dismissed and it was decreed in respect of the one-third share of the plaintiff in the ornaments. The lower appellate Court upheld the decree of the trial Court and hence this appeal by the plaintiff. At the hearing the suit was withdrawn as against defendants 6 to 8 (partners,) who were dismissed from the suit. On the findings of the trial Court which were endorsed by the lower appellate Court we do not think that there is any question in this case which entitles us to interfere with the decree. The finding is that defendant 1 who is a highly respectable man under the authority of the other partners took out the money and paid the debts of the firm with great advantage to the firm, the debts being paid off at 55 per cent. That there was no misappropriation by defendant 1 and that the present suit was instituted apparently at the instigation of Rama Charan, the brother of the plaintiff. On these findings no question of law arises and the suit was rightly dismissed. Appeal No. 84 is dismissed with costs.

(2.) The other suit which may be called the title suit was. brought by the plaintiff for recovery of one-third share in the sale proceeds of the stock-in-trade Defendant 1 is Brojendra Lal Das Chowdhury, who was defendant 1 in the other suit, and his defence is that he acted bona fide under instructions from the other partners. On the findings there can be no question that the suit was rightly dismissed against him.

(3.) As regards the claim against the partners the Munsif found that the amount of debt paid off by the other partners far exceeded the value of the stock-in-trade as put by the plaintiff. He also held that the suit was not maintainable without a general suit for accounts as between partners. In this view the suit was dismissed. The Subordinate Judge in appeal did not discuss the merits of the case, but dismissed the appeal on the ground that the suit in the form against the partners was not maintainable. The learned vakil for the appellant argues that the view of the lower appellate Court on law is wrong as the suit was maintainable. There can be no question that the general rule of law is that a suit by a partner after the dissolution of the partnership must be for a general account unless special circumstances exist which entitle one partner to bring a suit against another or others for a particular item. But if the suit relates to the loss and profits of the partnership business or to the stock-in-trade or capital employed in the business in respect of which all partners have equal rights, it must be one for a general account of the partnership business. But maintains the learned vakil for the appellant that an action for a specific sum, as for the price of the plaintiff's share in the sale proceeds of the stock-in-trade, is maintainable without a suit for accounts. He also contends that if in order to give proper relief if, is necessary to take accounts from the defendants the Court should take such accounts.