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Patel Vinubhai Nathubhai Vs. Thakkar Jayantilal Chhaganlal - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 83 of 1982
Judge
Reported inAIR1984Guj86; (1983)2GLR1326
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 1 - Order 20, Rule 15; Partnership Act, 1932 - Sections 40
AppellantPatel Vinubhai Nathubhai
RespondentThakkar Jayantilal Chhaganlal
Appellant Advocate J.D. Ajmera, Adv.
Respondent Advocate K.H. Baxi, Adv. for A.P. Medh, Adv.
Excerpt:
- - the plaintiff claimed that the defendant after agreeing to pay to him half the amount of the net profit at the foot of the accounts had gone back on his words and had failed to pay the amount legally due to him. however, copious evidence was led before the trial court-both documentary as well as oral which showed that in fact the plaintiff and the defendant were running a business called 'gita lodge'.the plaintiff also produced several note books (exhs. in a case like this, if the defendant takes up a stand where not only he denies the existence of partnership but even pretends not to know the plaintiff personally, it can be well imagined how difficult it would be for the plaintiff who in fact worked as a cook to produce the books of accounts......imagined how difficult it would be for the plaintiff who in fact worked as a cook to produce the books of accounts. in fact no books of accounts were necessary in this case as the partnership had already been dissolved and he accounts were taken. it was only the liquidated sum representing the share of the plaintiff which was to be recovered. hence in the absence of any evidence adduced by the defendant as regards the partnership, accounts and what was due at the foot of those accounts, the lower appellate court ought to have accepted the evidence of the plaintiff and could have passed a decree thereof without calling for accounts of the partnership which was previously dissolved.6. this appeal is partially allowed to the extent that the order of the lower appellate court remanding the.....
Judgment:

1. In this second appeal the substantial question of law as framed by this court is that when the suit is for a specified amount due at the foot of partnership accounts, whether a decree for rendering partnership accounts could be passed at law without there being any prayer for it in the plaint. The plaintiff had filed a suit for recovery of Rupees 5,901.06 P. due to him from the defendant. The said amount was claimed on the basis of the partnership accounts between the parties having been settled and at the foot of accounts a net profit of Rs. 11,702.16 P. was arrived at which was to be equally divided between the Plaintiff and the defendant. The plaintiff claimed that the defendant after agreeing to pay to him half the amount of the net Profit at the foot of the accounts had gone back on his words and had failed to pay the amount legally due to him.

2. The defendant took up a stand that he was not liable to pay the said amount or any other amount as according to him there was no partnership between him and the plaintiff and he even went to the extent of saying that he did not know the plaintiff at all. However, copious evidence was led before the trial court-both documentary as well as oral which showed that in fact the plaintiff and the defendant were running a business called 'Gita Lodge'. The plaintiff also produced several note books (Exhs.18 to 34) which he claimed to be in the handwriting of the defendant from which the plaintiff wanted the court to infer that the accounts were in fact settled between the parties on the dissolution of the partnership.

3. The trial court held that the alleged accounts represented by the, aforesaid note books (Exhs. 18 to 34) were written at random and did not show as to who incurred the expenses how and when the amounts were spent or received. The trial Court also held that it is not proved that the said note books were in the handwriting of the defendant. The trial Court even did not believe the plaintiff as regards the existence of partnership.

4. The lower appellate court however, after going through all the oral and' the documentary evidence, came to the conclusion that there was sufficient evidence to establish that there was a partnership between the plaintiff and the defendant. As regards accounts the lower appellate court held that the note books Exhs. 18 to 34 did not prove that the accounts were settled between the parties; but having held that there was a partnership, the lower appellate court felt that the matter should be remanded back to the trial court for taking proper accounts of the partnership.

5. Mr. J. D. Ajmera, the learned counsel for the appellant submits that the lower appellate court is in clear error in remanding the matter back to the trial court for taking accounts as no such relief was asked for by the plaintiff, He submitted that the court has no power to grant relief which is not prayed for. Mr. K. H. Baxi for Mr. A. P. Medh, the learned counsel for the respondent concedes that no relief was claimed in the suit for taking accounts of the partnership, even as an alternative relief. Mr. Baxi also admits that no application for amending the plaint was submitted either before the trial court or the lower appellate court Thus, it is quite obvious that in remanding the matter back to the trial court, the lower appellate court has made a legal error. As the plaintiff has not claimed the relief of accounts either originally or by the amendment of the plaint, the relief for taking accounts cannot be granted. However, the lower appellate court has not applied its mind to a very important aspect of the matter which is that in a suit for recovery of the liquidated amount based on the partnership accounts, the court ought to have accepted the accounts presented before the court as correct in absence of the other side producing any accounts at all. In the circumstances of this case in, which the defendant had taken up a stand that there was no partnership at all and that he even did not know the plaintiff personally which is proved to be palpably false on the, evidence on record. In this case the plaintiff was taken by the defendant as a partner to work in the partnership business of running a Lodge and the plaintiff was to work as a cook and the defendant who is an educated person was presumably to run the business day-to-day, deal with the finances of the firm and to carry out the management. In a case like this, if the defendant takes up a stand where not only he denies the existence of partnership but even pretends not to know the plaintiff personally, it can be well imagined how difficult it would be for the plaintiff who in fact worked as a cook to produce the books of accounts. In fact no books of accounts were necessary in this case as the partnership had already been dissolved and he accounts were taken. It was only the liquidated sum representing the share of the plaintiff which was to be recovered. Hence in the absence of any evidence adduced by the defendant as regards the partnership, accounts and what was due at the foot of those accounts, the lower appellate court ought to have accepted the evidence of the plaintiff and could have passed a decree thereof without calling for accounts of the partnership which was previously dissolved.

6. This appeal is partially allowed to the extent that the order of the lower appellate court remanding the matter to the trial court for taking accounts is set aside and the matter is remanded back to the lower appellate court to dispose of the appeal according to law in the light of the observations made above. The lower appellate court would consider the question whether on the facts and in the circumstances of this case the plaintiff has proved that the amount claimed by him is due to him or not. The remaining part of the judgment of the lower appellate court is upheld.

7. Order accordingly. In the facts and circumstances of the case, there shall be no order as to Costs all-throughout.

8. Appeal partly allowed.


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