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Mahadev Vithu Patil Vs. Ganoo Changoo Patil - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberSecond Appeal No. 121 of 1924
Judge
Reported inAIR1925Bom324; (1925)27BOMLR500; 87Ind.Cas.735
AppellantMahadev Vithu Patil
RespondentGanoo Changoo Patil
DispositionAppeal dismissed
Excerpt:
.....depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - 225 to the plaintiffs on the ground that one partner is not liable in a suit for accounts upon a dissolution of partnership for the probable loss sustained by the firm owing to the neglect or failure of one partner to carry out the duties imposed upon him by the partnership agreement to the prejudice of the firm's business......account. the trial court came to a decision on those matters. it is contained in what is called a preliminary decree at page 11 of the print. that was not a real preliminary decree, as all the questions in dispute were actually decided, and nothing remained to be done except to make the necessary calculations to give effect to the court's findings.2. the defendant appealed and the court came to a different conclusion on certain items of the account, and passed a decree accordingly.3. the plaintiffs have appealed, and the first ground on which they rely is that the lower appellate court had no jurisdiction to interfere with the preliminary decree in an appeal from the final decree. as a matter of fact the decree was not a preliminary decree although the judge called it so. consequently.....
Judgment:

Norman Macleod, Kt., C.J.

1. This was a suit for accounts of a partnership entered into between the parties to the suit to ply a machawa for hire. The machawa itself has been sold, and the dispute now ranges about some minor matters in the account. The trial Court came to a decision on those matters. It is contained in what is called a preliminary decree at page 11 of the print. That was not a real preliminary decree, as all the questions in dispute were actually decided, and nothing remained to be done except to make the necessary calculations to give effect to the Court's findings.

2. The defendant appealed and the Court came to a different conclusion on certain items of the account, and passed a decree accordingly.

3. The plaintiffs have appealed, and the first ground on which they rely is that the lower appellate Court had no jurisdiction to interfere with the preliminary decree in an appeal from the final decree. As a matter of fact the decree was not a preliminary decree although the Judge called it so. Consequently that ground of appeal cannot be supported.

4. An objection is taken to the lower appellate Court's disallowing an item of Rs. 225 to the plaintiffs on the ground that one partner is not liable in a suit for accounts upon a dissolution of partnership for the probable loss sustained by the firm owing to the neglect or failure of one partner to carry out the duties imposed upon him by the partnership agreement to the prejudice of the firm's business.

5. It was contended that the defendant was negligent in not plying the boat for freight. The appellate Judge has considered that, and has come to the conclusion that there was no negligence on which an action could be founded, and so the plaintiff's would not be entitled to recover damages for negligence against their partner.

6. We have been referred to Lindley on Partnership, (9th Edn.), page 472. The passage runs :-

Before the Partnership Act, 1890, was passed, if a partner was guilty of a breach of his duty to the firm, and loss resulted therefrom, such loss fell on him alone. As was said by the Court in Bury v. Allen (1845) 1 Coll. 589, 604, ' Suppose the case of an act of fraud, or culpable negligence, or wilful default by a partner during the partnership to the damage of its property or interests, in breach of his duty to the partnership whether at law compellable or not compellable, he is certainly in equity compelable to compensate or indemnify the partnership in this respect.'

7. But it cannot be said that the defendant has been guilty of fraud, culpable negligence, or wilful default

8. Reference was also made to Thomas v. Atherton (1878) 10 Ch. D. 185 But in that case the managing partner of a mine carried on the workings beyond the boundary. An action was brought by the adjoining owner against the managing partner, and the proceedings before the arbitrators ended in an order against him. In a suit brought by the managing partner against the other partners for contribution, it was held that the other partners were not liable.

9. That would be an entirely different question from the one now argued before us, namely, that the defendant, owing to his not having plied the boat for freight, would be liable to bring into account the freight that could have been earned as contended for by the plaintiffs.

10. We think, therefore, that the decision was right and the appeal must be dismissed with costs. The cross-objections are dismissed with costs.


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