PUNJAB NATIONAL BANK Vs. BALIKRAM KISSENCHAND

JUDGEMENT

(1.) This is an application by the Punjab National Bank which has obtained a decree against a firm Balikram Kissen chand for leave to execute the decree against Beharilal Jhamb on the footing that he is a partner of the firm. Beharilal opposes the application on various grounds. When the matter came up for hearing two preliminary objections were taken on his behalf as to the maintainability of the application. First it was contended that the application is barred by the principle of res judicata by reason of a previous decision of this Court in its insolvency jurisdiction and that it is also barred by reason of that decision being a judgment in rem. The second objection is raised in the following manner. The suit out of which the application arises was instituted in accord-dance with the provisions laid down in Order 30, Civil P.C., against Balikram Kissenchand in its firm name. Belying on the decision of this Court in Lalchand Anonmal V/s. M.C. Boid & Co. and In re Gobindlal Mohata (1935) 39 CWN 275 it is pointed out that the procedure laid down in Order 30, Civil P.C., applies only to a contractual partnership and has no application to a Hindu joint family business. Then it is contended that as Balikram Kissenchand is not a contractual partnership but a Hindu joint family business, Beharilal, even if he be a member of this joint family firm, cannot be proceeded against in execution as if he were a partner of a contractual firm.

(2.) I shall deal with the second objection first. In order to succeed, the respondent must establish that Balikram Kissenchand is not a contractual partnership. If this fact has to be decided, after going into evidence then the objection cannot be disposed of as a preliminary one. On behalf of Behari Lal, it is pointed out that in a document dated 2 May, 1933 which is annexure B to the affidavit in opposition it is stated that Balikram Kissenchand is a Hindu joint family business and it is contended that the Punjab National Bank is bound by this statement inasmuch as it was a party to the document. In my opinion this is not a correct view. The document relied upon is an agreement to which several persons including the Punjab National Bank were parties. By this agreement certain claims and matters between the parties were settled. In that document Rai Bahadur Sukhram Jhamb was a party and he is described as the karta or managing member of the joint Hindu tracing family carrying on business at amongst other places 118 Cross Street in the town of Calcutta in the name and style of Balikram Kissenchand.

(3.) Now this description may be binding on Rai Bahadur Sukhram Jhamb but I do not see how it can be binding on the Punjab National Bank except for the purposes of that particular agreement. This document may be a piece of evidence in favour of Beharilal, but it is not conclusive against the Punjab National Bank so as to prevent the Bank from asserting that the firm was a co-partnership firm. In this connexion I might as well mention that in this document certain persons are stated to be adult members of the firm and among those names the name of Beharilal does not appear. My remarks about the effect of the description of the firm would apply equally to the statement regarding the members of the firm. In my opinion this document does not preclude the Punjab National Bank from asserting that this is a contractual partnership or from asserting that Beharilal is a member of the firm. This preliminary objection fails.