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Su. Ellappa Mudaliar Vs. A. Swaminatha Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad755; 145Ind.Cas.858
AppellantSu. Ellappa Mudaliar
RespondentA. Swaminatha Mudaliar
Cases ReferredIn Arunachalam Servai v. Nottam Beer Vavu Rowther
Excerpt:
- .....that if the plaintiff was entitled to a decree, it would be for one third of the amount of the decree obtained against the plaintiff and the defendant and not for half this last finding of the subordinate judge was not questioned by the learned advocate for the petitioner. the plaintiff files this revision petition. on the findings of the subordinate judge, we must take it that the decree represents a partnership debt. but this fact does not conclude the question whether the suit is maintainable. as pointed out in subbarayudu v. adinarayudu (1895) 18 mad 134, to the general rule, that advances made by one partner to the partnership concern can only result in matters of account and cannot be made the subject of a separate suit, there are exceptions. one of the exceptions mentioned in.....
Judgment:

Ramesam, J.

1. This is a revision petition against the decree of the Court of the Subordinate Judge of Chingleput, dismissing the plaintiff's suit in S.C.S. No. 187 of 1929. The plaintiff alleged that he and the defendant had dealings with another firm and in connexion with those dealings, that firm obtained a joint and several decree against the plaintiff and the defendant to the extent of Rs. 612-3-0. Execution was taken against the plaintiff alone and the plaintiff had to pay up the whole decree amount. He therefore brings the suit for contribution of half the decree amount against the defendant. The defendant pleaded that the plaintiff, the defendant and a third party, named Balasubramania Mudali, carried on business as partners and the liability incurred by the plaintiff, and the defendant was in connexion with the business of that partnership. He also pleaded that the plaintiff discharged the debt out of the assets of the partnership which he had in his hands. But as to this plea he took no issue nor adduced any evidence. He contended that the partnership was still subsisting and is not dissolved and that the present suit is not maintainable, the plaintiff's only remedy being to claim the suit item in a general suit for taking the accounts of the partnership.

2. The Subordinate Judge found that the matter in respect of which the decree was obtained against the plaintiff and the defendant was really a matter connected with the partnership of the plaintiff, the defendant and Balasubramania Mudali. Having come to this conclusion he held that the suit was not maintainable and so he dismissed the suit. He also found that if the plaintiff was entitled to a decree, it would be for one third of the amount of the decree obtained against the plaintiff and the defendant and not for half This last finding of the Subordinate Judge was not questioned by the learned advocate for the petitioner. The plaintiff files this revision petition. On the findings of the Subordinate Judge, we must take it that the decree represents a partnership debt. But this fact does not conclude the question whether the suit is maintainable. As pointed out in Subbarayudu v. Adinarayudu (1895) 18 Mad 134, to the general rule, that advances made by one partner to the partnership concern can only result in matters of account and cannot be made the subject of a separate suit, there are exceptions. One of the exceptions mentioned in that case is:

When two partners borrow from a bank on their joint promissory note and apply the money borrowed to the partnership concern and one of the partners is compelled to pay more than his share of the debt, the transactions have been considered to be separate.

3. In the present case the decree has been obtained by a stranger in respect of a partnership debt and the plaintiff alone had to pay up the whole of the decree amount. Prima facie therefore he is entitled to recover one-third of the decree amount from the defendant. The learned advocate for the respondent relied on a judgment of Sadasiva Ayyar, J., in Damodara Shanabhagga v. Subraya Pai (1917) 43 IC 217. In that case the District Munsif found as a fact that if the partnership account was fully gone into nothing would be due to the plaintiff's assignor from the defendant even making allowance for the item which was the subject of dispute. The case in Sadhu Narayana Ayyangar v. Ramaswami Ayyangar (1909) 32 Mad 203, has no bearing on the present point because it is a case of partnership at will. The case in Santhanakrishna Naidu v. Chelluppa Ayyar : AIR1927Mad650 , was a suit for damages for breach of covenant contained in one of the terms of the partnership. In Arunachalam Servai v. Nottam Beer Vavu Rowther : AIR1928Mad588 , the suit was held to be maintainable because, after the partnership was dissolved, the debt was borrowed by the partners and a decree was obtained on it.

4. In my opinion in the present case the suit is maintainable and the plaintiff is entitled to a decree for one-third of the amount which he had to pay to the decree-holder in E.P. No. 110 of 1929. Reversing the decree of the Subordinate Judge, I give a decree to the plaintiff for Rs. 204-1-0 with further interest at 6 per cant from 12th February 1929, up to the date of payment. In the Court below the parties will give and take proportionate costs. In this Court the petitioner will have his costs.


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