VELLANKONDU SUBBIAH Vs. MALUPEDDI VENKATARAMIAH

JUDGEMENT

(1.) THIS is a suit by one partner against two other partners upon a promissory note given by them, and the members of their respective joint families have also been joined as defendants. The District Judge has found that accounts between the partners were settled and a balance found due to the plaintiff, and that the partnership was thereupon dissolved and the promissory note given to the plaintiff for the amount of the balance. For the appellants it is contended that the evidence for the defence shows clearly that this was not so, and that the promissory note was given in repayment of an advance made by the plaintiff to the partnership with interest, and that at the time it was given the general accounts of the partnership had not been taken. If this be so, then it is contended that one partner cannot maintain a suit against the other partners upon a promissory note so given. We are unable to agree with this contention. No doubt the proper remedy of one partner against the other members of the firm is ordinarily a suit for a dissolution of partnership, and one partner has been held not entitled to maintain a suit, other than a suit for dissolution, against the other members of the firm in respect of partnership transactions, on the ground that the plaintiff, as a member of the firm, would be a necessary defendant, and that a man cannot maintain a suit against himself Rustomji V/s. Sheth Purshotamdas (1901) I.L.R. 25 B. 606. THIS, however, is not a suit against a firm by one of the members of the firm, but a suit by one member of the firm, upon a promissory note given him by two other members of the firm in respect of an advance made by him to the firm and interest thereon. It is not contended that the note is without consideration or that the consideration has failed, but it is said that when the accounts are taken it may appear that there is nothing due to the plaintiff. If this had been so, the defendants would hardly have given the note; but, in any case, it only comes to this, that the defendants have an unliquidated claim against the plaintiff. They are not entitled in law to set off an unliquidated claim; indeed they have not pleaded set off. In our opinion, defendants Nos. 1 and 2, the makers of the note, have no answer to the suit. As regards the other defendants, the District Judge states that they are members of the undivided families of one or other of the defendants, and interested in their joint trade; but this appears to be merely a statement of the plaintiff's case, as there is no evidence to show that the joint families were interested in the joint trade, and it is not admitted but denied. Under these circumstances they cannot be made liable either on the note or under Hindu law as explained in Krishna Ayyar v. Krishnasami Ayyar (1900) I.L.R. 23 M. 597. As regards them the appeal must be allowed with costs. As against defendant No. 2, the second appeal must be dismissed with costs.