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Sait Balakishan Lal Hanuman Prasad Firm, Marwadi and Co. Vs. Mandala Venkateswara Rao and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in164Ind.Cas.1064
AppellantSait Balakishan Lal Hanuman Prasad Firm, Marwadi and Co.
RespondentMandala Venkateswara Rao and anr.
Cases Referred and Mahabir Prasad Misir v. Amla Prasad Rai
Excerpt:
.....of proof of necessity to borrow--binding nature of debt--plying motor buses, whether a trade--money borrowed by agent for obtaining license for motor bus, whether binding on minor. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police..........necessity can be drawn. the main argument in revision is that plying a bus for hire is a form of family trade and that when any money is borrowed in respect of carrying on a family trade there is no need for the creditor, to prove that any real necessity far the borrowing in fact existed, and all that he need show is that there was a family trade carried on bona fide for the benefit of all the members, of the family. certain rulings have been cited in support of this proposition raghunathji tarachand v. the bank of bombay 34 b 72 : 2 ind. cas. 173 : 11 bom.lr 255, thamana chinna lakshminarasimha v. akarapu venkinna chinniah 38 mlj 55 : 55 ind. cas. 64 : 11 lw 55 : (1920) mwn 112 : 27 mlt 83 and mahabir prasad misir v. amla prasad rai 46 a 364 : 79 ind. cas. 517 : 22 alj 295 : air 1924.....
Judgment:

King, J.

1. The petitioner in this case is the promisee of a promissory note executed in September 1930, for Rs. 600 by the 2nd defendant, who had been given a general power-of-attorney by the mother of the 1st defendant to carry on a business in running buses. The 1st defendant at the time the note was executed was a minor. His father had died and his mother was his guardian. The purpose recited in the note for the borrowing of the sum of Rs. 600 was that the amount was required to renew licences to be issued by the District Board in order that two buses might ply for trade. The learned Subordinate Judge of Guntur tried this claim as a small cause suit. Though he gives no definite findings, on the facts he is prepared to assume that the mother had a right to execute this power-of-attorney to the 2nd defendant for the conduct of the business. The learned Subordinate Judge goes on to say that if only there were some evidence of necessity, evidence that this money was really unable to be made available from any other source, he would have given a decree to the petitioner; but in the absence of any such evidence he was constrained to dismiss the petitioner's suit.

2. There is of course no doubt that this evidence was not forthcoming. Although a certain amount of oral evidence was given on behalf of the petitioner, no one has stated any facts from which any presumption of necessity can be drawn. The main argument in revision is that plying a bus for hire is a form of family trade and that when any money is borrowed in respect of carrying on a family trade there is no need for the creditor, to prove that any real necessity far the borrowing in fact existed, and all that he need show is that there was a family trade carried on bona fide for the benefit of all the members, of the family. Certain rulings have been cited in support of this proposition Raghunathji Tarachand v. The Bank of Bombay 34 B 72 : 2 Ind. Cas. 173 : 11 Bom.LR 255, Thamana Chinna Lakshminarasimha v. Akarapu Venkinna Chinniah 38 MLJ 55 : 55 Ind. Cas. 64 : 11 LW 55 : (1920) MWN 112 : 27 MLT 83 and Mahabir Prasad Misir v. Amla Prasad Rai 46 A 364 : 79 Ind. Cas. 517 : 22 ALJ 295 : AIR 1924 All. 379 : LR 5 A 264 Civ. It will be noted, however, on an examination of those rulings that they dealt with trade in its ordinary sense. They dealt with cases where very frequent occasions were bound to arise for the borrowing of money and in fact it is held quite clearly in those rulings that without such borrowing it would be impossible to carry on the trades in question. In one case there is a family engaged in cloth business and in another the business was the buying and selling of elephants. There is also another feature of these cases that there was an adult manager of the family who was in charge of the various businesses. In the present case there is only a minor boy as the sole proprietor of the business with his mother and her agent to run it for him. Without, however, stressing too far the differences between the constitution of the joint families in the ruling cited and the joint family here which has now reduced itself to a single member, there is to my mind this essential difference between those trades and the carrying on of the business of plying buses. If you ply a bus for hire it is part of your ordinary recurring expenses to obtain a licence from a District Board. It is an expense which like the wages of the driver or the conductor or like the ordinary repairs of a bus ought properly to be met from revenue and therefore there can be no presumption that if money is borrowed for the express purpose of obtaining a licence from the District Board, the borrowing was either necessary or for the benefit of the proprietor of the business. This difference seems to me fundamental. In the cases quoted it was assumed and assumed quite naturally that the businesses themselves could not be carried on without frequent recourse to borrowing. In the present case there can be no such presumption. The presumption is indeed the other way that the ordinary expenses of maintenance should be met out of the ordinary revenue of the business. It is, therefore, significant and important that no actual evidence has been adduced to show that any necessity arose at the time the money was borrowed or that the borrowing of the money and the prolongation of the business was really to the benefit of the minor. In these circumstances, it seems to me that there are no good reasons for interfering with the judgment of the learned Subordinate Judge and I dismiss this petition with costs.


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