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Gudlavellaru Venkataratnam Vs. Vellathambi Venkataratnam - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in15Ind.Cas.218
AppellantGudlavellaru Venkataratnam
RespondentVellathambi Venkataratnam
Cases ReferredSadhu Narayana v. Ramaswami Iyengar
Excerpt:
.....borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the..........the plaintiff himself had received a larger portion of the debt collected from him in the former suit, the suit is not entertainable by the small cause court.3. now, assuming that the suit for contribution would lie at all; my attention is not drawn to any article in the provincial small cause courts act, which would prevent a small cause court from trying it. article 41 which was relied on for the petitioner does not cover this case, and no other article is relied on. on account of the view taken by the defendant's pleader, no attempt seems to have been made to prove at the trial that on the merits the plaintiff was not entitled to a decree. it is not stated that the lower court refused to receive any evidence that was offered. 1 have very little doubt that the pleader was not content.....
Judgment:

Sundara Aiyar, J.

1. The suit in this case was for contribution. The plaintiff alleged that a decree for money was passed against him and the defendant jointly, that in execution the whole of the amount was levied from him and that the defendant is, therefore, liable to pay him half of the amount. The defendant set up the contention that the debt for which the former decree was passed related to a partnership trade conducted by the plaintiff and the defendant jointly, that the plaintiff was, therefore, not entitled to recover the amount without an account being taken of the partnership transaction and that the suit was, therefore, not maintainable on the Small Cause side. The defendant did not say definitely in his written statement whether the partnership was a continuing one or not. As far as I am able to make out, his plea seems to have been that the partnership itself was dissolved, but that the account of the partnership had not been taken. If his case were that the debt sued for was only one item in a continuing partnership business, then probably he would be entitled to say that a suit is not maintainable for it separately, and that the plaintiff's remedy would be to ask for a dissolution of the partnership and the taking of its account. In the case of a dissolved partnership, this Court has held, in Sadhu Narayana Iyengar v. Ramaswami Iyengar 32 M.P 203 : 4 M.L.T. 475 : 3 Ind. Cas. 486 that a suit is maintainable for contribution by a partner who has paid the whole of a debt. No doubt, as pointed out in that case, it would be open to the defendant to show that nothing was really due to the plaintiff according to the accounts of the partnership as they stand. The decision in Sadhu Narayana Iyengar v. Ramaswami Iyengar 32 M.P 203 : 4 M.L.T. 475 : 3 Ind. Cas. 486 seems to me, if I may say so, to be in accordance with the current of recent decisions.

2. In this case, the defendant's Pleader seems to have taken the view that, if his client was entitled to show that the plaintiff should not have a decree because the partnership accounts would show that he could not claim the amount sued for then, the plaintiff would be bound to sue for an account of the partnership transactions, and he not being entitled to do so in a Small Cause Court, the suit for contribution would not lie in a Small Cause Court. This is apparently the reason why the written statement states that, as the plaintiff himself had received a larger portion of the debt collected from him in the former suit, the suit is not entertainable by the Small Cause Court.

3. Now, assuming that the suit for contribution would lie at all; my attention is not drawn to any Article in the Provincial Small Cause Courts Act, which would prevent a Small Cause Court from trying it. Article 41 which was relied on for the petitioner does not cover this case, and no other Article is relied on. On account of the view taken by the defendant's Pleader, no attempt seems to have been made to prove at the trial that on the merits the plaintiff was not entitled to a decree. It is not stated that the lower Court refused to receive any evidence that was offered. 1 have very little doubt that the Pleader was not content to take up the position that if the defendant would be entitled to show that on the merits the plaintiff should not have a decree, then the plaintiff would have no right to have the suit tried by a Small Cause Court. It was for the defendant in this case to allege that the debt collected from the plaintiff was only an item in ah undissolved partnership. The plaintiff said nothing about a partnership, his allegation being that there having been a joint decree against him and the defendant and the amount of the decree having been collected from him solely, he was entitled to contribution against the defendant. This allegation is prima facie sound legally. The defendant has to disprove it by stating facts which would put the plaintiff out of Court, for this purpose. According to the decision in Sadhu Narayana v. Ramaswami Iyengar 32 M.I 203 : 4 M.L.T. 475 : 3 Ind. Cas. 486 which is binding on me, the defendant would have to allege that the debt in question was a transaction in an undissolved partnership. If the partnership was dissolved, the defendant failed to allege and to prove that the plaintiff was not entitled to recover in the suit on the mertis. In this view. I must dismiss the petition.


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