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Bedabar Sahu Vs. Khetramani Barik - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 93 of 1967
Judge
Reported inAIR1969Ori194; 35(1969)CLT858
ActsPartnership Act, 1932 - Sections 69 and 69(3)
AppellantBedabar Sahu
RespondentKhetramani Barik
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateH. Sen, Adv.
DispositionRevision dismissed
Cases ReferredDaitari Mohapatra v. Brundaban Hatia.
Excerpt:
.....v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the plaintiff's case was that ultimately this agreement failed and there was an accounting......- (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm.' xxx' the present claim of the plaintiff is directly covered by the last clause in sub-section (3) (a). non-registration of the firm would not thus stand as a bar in respect of any right or power to realise the pro-perty of a dissolved firm. the question for consideration is whether the dues of the plaintiff against the defendant after accounts being taken retain the character of the property of a dissolved firm. in one sense it can be, namely, this property had belonged to the firm before dissolution and after dissolution and accounting it came to the hands of the plaintiff who has the right to realise it.....
Judgment:
ORDER

G.K. Misra, J.

1. The plaintiff brought a money suit for realisation of Rs. 286.76 paise from the defendant (petitioner) on the allegation that the defendant was doing contract business and the plaintiff advanced him a sum of Rs. 2,000/- by instalments on condition that the defendant would pay half the profit of the business together with the amount advanced in case of profit, but in case of loss the defendant would refund the amount advanced. The plaintiff's case was that ultimately this agreement failed and there was an accounting. On 7-8-64 there was an agreement that the defendant would pay a sum of Rs. 375/- and that be would pay a further sum of 2/3rd out of the security deposit with the Government after deduction of costs. The defendant did not pay up any amount in accordance with the agreement. The defendant admitted the original agreement and advance of money by the plaintiff. He also accepted the position that after accounts were taken an agreement was executed on 7-8-64 fixing up the liability of the defendant as stated in the plaint. He however took the plea that he had paid up the entire amount and that the suit was hit by Section 8 of the Orissa Money Lenders Act and Section 69 of the Indian Partnership Act. Both the courts below negatived all the contentions of the defendant. This Civil Revision has been filed against the appellate decree.

2. The only point urged by Mr. Sinha is that Section 69 of the Indian Partnership Act is a bar to such a claim. Section 69, Sub-section (3), Clause (a) runs thus:--

'(3) The provisions of Sub-sections (1) and (2) shall apply also to a claim of set off or other proceeding to enforce a right arising from a contract, but shall not affect -

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm.'

XXX'

The present claim of the plaintiff is directly covered by the last clause in Sub-section (3) (a). Non-registration of the firm would not thus stand as a bar in respect of any right or power to realise the pro-perty of a dissolved firm. The question for consideration is whether the dues of the plaintiff against the defendant after accounts being taken retain the character Of the property of a dissolved firm. In one sense it can be, namely, this property had belonged to the firm before dissolution and after dissolution and accounting it came to the hands of the plaintiff who has the right to realise it from the defendant. The present case comes within this exception. The matter is also covered by a decision of this Court reported in 25 Cut LT 34 = AIR 1959 Orissa 110, Daitari Mohapatra v. Brundaban Hatia.

3. The plaintiff's case stands on a stronger footing from another analysis. The cause of action for recovery of the amount agreed to be paid by the defendant to the plaintiff has nothing to do with the property of the firm except that in its historical context it once belonged to the firm. After accounts were taken and an agreement was executed by the defendant in favour of the plaintiff acknowledging the liability to pay that amount, a different cause of action arises which has nothing to do with the dissolved firm. On such a view the plaintiff's suit is bound to succeed.

4. In any view of the matter, the point raised by Mr. Sinha has no merit. The revision is accordingly dismissed. But there will be no order as to costs of this Court.


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