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Gottipati China Kondian Vs. Gottipati Narasappa Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai
Decided On
Reported inAIR1914Mad295; (1914)26MLJ221
AppellantGottipati China Kondian
RespondentGottipati Narasappa Naidu and ors.
Cases ReferredMudaliar v. Sadagopa Mudaliar I.L.R.
Excerpt:
- - i think the plaint is not worded as clearly as it might have been. ' having in mind the difficult nature of the question of law involved and seeing that it is not unreasonable to suppose that the plaintiff and his legal advisers had only vague ideas of their legal rights in a case of dissolved partnership and of collections made and amounts received by some of the partners after dissolution, i think that it is not improper to allow the plaintiff an opportunity to adduce evidence on that question giving of course a like opportunity to defendants nos......found not to be entitled to the shire he claims of the amounts received within the 3 years before suit by defendants nos. 1 and 2. it must be admitted that this aspect of the case was not pointedly put forward by the plaintiff before the munsif and no issue was raised on this question in the munsif's court. but the point seems to have been taken in the grounds of appeal to the lower appellate court-6th ground-and though there is no definite statement that evidence was shut out by the district munsiff on the question as to what amounts, had been received by defendants nos. 1 and 2 between november 1903 and may 1904, it is contended in the appeal memo that ' the district munsif should have tried that question and ought to have given a finding on it.' having in mind the difficult nature of.....
Judgment:

Sadasiva Aiyar, J.

1. The plaintiff is the appellant before us. His suit, as I understand it (especially from the 10th paragraph of the plaint), is based on the allegations that the partnership between himself and the defendants was dissolved by consent in October 1903 and that between October 1903 and May 1904, the plaintiff's and 3rd defendant's men collected the debts due to the partnership and paid the moneys so collected to defendants Nos. 1 and 2. The reliefs prayed for in the plaint are that ' all the accounts relating to the partnership trade may be sent for to the Court and the accounts settled and that a decree may be passed directing recovery from defendants 1 and 2 and from their family property of the amount of Rs. 846-4-0 which the plaintiff believes, should be due to him for his share of the amount collected and paid to defendants 1 and 2 or of any larger amount which will be found upon settlement of accounts.'

2. In the 16th paragraph of the plaint the cause of action is stated to have arisen from November 1903 and I take this to mean that the cause of action arose on the several dates between November 1903 and May 1904 referred to in the 10th paragraph of the plaint as the period during which the collectionswere made by the plaintiff's and the 3rd defendant's men,

3. The Lower Courts dismissed the suit Ton the ground that the dissolution really took place in May 1903 and not in October 1903 as alleged in the plaint and as the suit was brought in July 1906 more than 3 years from the date of the dissolution of the partnership and as the suit was one for a settlement of accounts on the dissolution of a partnership it was barred. I think the plaint is not worded as clearly as it might have been. A reading of the paragraphs Nos. 10 and 16 of the plaint with the relief portion in the 17th paragraph and the schedule thereto shows in my opinion that the plaintiff wanted to get his share of the sums which he alleges were collected by the plaintiff's and the 3rd defendant's men and were received by defendants Nos. 1 and 2 between November 1903 and May 1904. If, then, besides the general prayer for the settlement of accounts of a dissolved partnership there is also a prayer for the recovery of the plaintiff's share of the sums received by two of the partners within 3 years before the suit, the following decisions namely Sokkanada Vaminundar v. Sokkanda Vamunindar I.L.R. (1904) M. 344 Sadhu Narayana Aiyangar v. Ramasami Aiyangar I.L.R. (1908) m 203 and Thiru-vengada Mudaliar v. Sadagopa Mudaliar I.L.R. (1910) M. 112, seem to apply to such. A prayer and the plaintiff would be entitled to prove what sums have been received by defendants Nos. 1 and 2 within the 3 years before the suit leaving, however an opportunity to defendants Nos. 1 and 2 to show that, if a general account of the partnership transactions is taken, the plaintiff would be found not to be entitled to the shire he claims of the amounts received within the 3 years before suit by defendants Nos. 1 and 2. It must be admitted that this aspect of the case was not pointedly put forward by the plaintiff before the Munsif and no issue was raised on this question in the Munsif's Court. But the point seems to have been taken in the grounds of appeal to the Lower Appellate Court-6th ground-and though there is no definite statement that evidence was shut out by the District Munsiff on the question as to what amounts, had been received by defendants Nos. 1 and 2 between November 1903 and May 1904, it is contended in the appeal memo that ' the District Munsif should have tried that question and ought to have given a finding on it.' Having in mind the difficult nature of the question of law involved and seeing that it is not unreasonable to suppose that the plaintiff and his legal advisers had only vague ideas of their legal rights in a case of dissolved partnership and of collections made and amounts received by some of the partners after dissolution, I think that it is not improper to allow the plaintiff an opportunity to adduce evidence on that question giving of course a like opportunity to defendants Nos. 1 and 2 not only to meet the evidence which may be adduced by the plaintiff in regard to these alleged collections but also to prove that the plaintiff's share of those collections cannot be recovered by him having regard to the state and result of the general accounts of the partnership. We therefore set aside the decree of the Lower Courts and remand the suit to the Court of first instance for a decision de novo not only on the questions arising in the case including the question relating to the amounts received by defendants Nos. 1 and 2 as alleged in the 10th paragraph of the plaint and in the schedule thereto, but on the question of the general state of the accounts if it is necessary to go into that question also.

4. The Court fees paid by the appellant on the Memorandum of appeal will be refunded to him. Costs incurred in all the Courts will be provided for by the District Munsif in the fresh decision.

Spencer, J.

5. I concur and have nothing to add.


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