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Surajratan Daga Vs. Debidutt Sharaff and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal218
AppellantSurajratan Daga
RespondentDebidutt Sharaff and ors.
Cases ReferredR.M.S. Chetty v. Mahomed Essa Saheb
Excerpt:
- .....to the firms of joburmull gambhirmull and harkiasendas pannalal.2. one of the matters which the learned referee had to determine therefore was whether or not the agreement, as set up by the defendants, was in existence and after hearing the evidence the learned referee came to the conclusion that the plaintiff was not in a position to succeed in the suit in that the arrangement which was pleaded by the defendants was actually made. the matter comes before us on appeal from a judgment given by panckridge j. on 28th may 1936 in connexion with an application to vary the report of the official referee which report is dated 9th december 1935. there was also an application for judgment in favour of the plaintiff for the sum which the learned referee found to be due, namely rupees.....
Judgment:

Costello, J.

1. In this case the plaintiff was admittedly a partner of the defendants, and he instituted the suit out of which this appeal has arisen for a declaration that the partnership had been dissolved for the taking of an account of the profits of the partnership, and for a decree in his favour for the amount to be found due to him. The suit came on for hearing before McNair J. on 12th July 1933, when a consent decree was made and it was one in the ordinary form in so far as it referred the case to the Registrar with liberty to allocate the reference to the Official Referee or the Assistant Referee to take accounts. The defendants had asserted that under an agreement which was made when the partnership was first entered into the plaintiff was not to get the profits to which he would be entitled otherwise but the profits were to be devoted to liquidating certain debts which the business known as Multanchand Lachminarain belonging to the family of which the plaintiff was a member had incurred to two firms known as Joharmull Gambirmull and Harkissendas Pannalal. This arrangement was set out in para (1) of the written statement in this way:

Certain other terms were arrived at between the parties, that is to say; (a) the plaintiff would be admitted as a partner in the firm of Madan Gopal Debidutt as representing the joint family consisting of his father, himself and his brothers; (b) the plaintiff's two annas share of the profits of the said firm would be applied in liquidation of the debts due by the said joint family to the firms of Joburmull Gambhirmull and Harkiasendas Pannalal.

2. One of the matters which the learned Referee had to determine therefore was whether or not the agreement, as set up by the defendants, was in existence and after hearing the evidence the learned Referee came to the conclusion that the plaintiff was not in a position to succeed in the suit in that the arrangement which was pleaded by the defendants was actually made. The matter comes before us on appeal from a judgment given by Panckridge J. on 28th May 1936 in connexion with an application to vary the report of the Official Referee which report is dated 9th December 1935. There was also an application for judgment in favour of the plaintiff for the sum which the learned Referee found to be due, namely Rupees 10,045.13-1. The learned Judge took the view that the findings arrived at by the Referee were so clear, findings on the question of fact as to whether there had been an arrangement of the kind pleaded by the defendants or not, that it was not right that the Court should do otherwise than confirm the report of the Referee. The learned Judge says however:

I do not profess to have weighed the evidence with any great care or thoroughness, but it seems to me that on general principles, in default of some admitted fact, the destructive character of which the Official Referee has failed to appreciate, his findings must be supported.

3. This case, the present appeal, is very similar to one which came before this Court a month ago-the case of Gambhir. mull Mahabirprosad v. Kunja Behary Ghose, decided by myself and Panck-ridge J. on 10th February 1937. In that case also, there had been a report by a Referee which had been upheld by McNair J. sitting on the Original Side, and I then pointed out that in effect the appellant was faced with a concurring finding of fact, that is to say, there was a finding of fact arrived at by the Referee and confirmed by the learned Judge before whom the report came for confirmation. It follows therefore that the matter was of the same nature in principle as that in R.M.S. Chetty v. Mahomed Essa Saheb (1901) 5 CWN 692. In my opinion this appeal should be decided upon in the light of the judgment of Sir Francis McLean, C. J. in that case (p. 696). Put quite shortly, the principle of law applicable to a matter of this kind is, in my opinion, this, that a Court of Appeal ought not to interfere unless it is satisfied that the judgment, which it is reviewing is clearly wrong. Now, the findings arrived at by the Referee in the present case are very definite in character and it is obvious that the learned Referee did not accept the plaintiff's version of the partnership arrangement, but on the other hand did accept; the defendant's version of that arrangement on the strength of the evidence given by Mr. Sew Kissen Bhattar in regard to whose evidence the learned Referee said:

He has given his evidence in a fairly convincing manner, and no sufficient version has been shown why he should have been a party to a conspiracy to defraud the plaintiff of the profits earned in his share in the firm of Madan Gopal Debidutt.

4. Then the learned Referee says quite definitely:

I accept the evidence of Sew Kissen Bhattar and Debidutt Shroff as regards the terms of the agreement upon which the plaintiff was admitted into the partnership.

5. There is a definite finding of facts stated in clear and unequivocal terms. It will therefore require a great deal of material and considerable argument before it would be befitting that another tribunal should interfere with the decision arrived at by the learned Referee, based as it obviously was upon the impression which he formed as to the credibility of the witnesses at the time when the oral evidence was given. The learned Judge at p. 11 of the paper book says with regard to the findings in the report:

Counsel for the applicant, that is to Bay, the plaintiff who is now appellant before us, has not attempted to disturb these findings, and he admits that he cannot ask me to rely on the evidence of his client. But he says that inasmuch as the burden of proving what I may call the additional and exceptional terms of the partnership agreement is upon the defendants he is entitled to submit that they have not discharged that burden. As a matter of law this is correct.

6. It appears that the learned Judge had clearly in his mind the principle he had to apply in deciding whether the report should be accepted or not. Lower down the learned Judge says:

It appears to me that as the Official Referee has accepted the oral evidence of the defendant and Sewkissendas Bhattar, after seeing them and hearing them examined and cross-examined, the chief obstacle in the plaintiff's path is this, that he must be able to point to some undeniable fact which is entirely destructive of and irreconcilable with the defendants' story. In my opinion he has not succeeded in doing so.

7. Then later the learned Judge says refer-ring to the argument advanced on behalf of the plaintiff:

Putting them at their highest, and bearing in mind the fact that oral evidence of the plaintiff must ex concessis be taken to be of no value, I could not possibly be justified in rejecting the findings of fact of the learned Official Referee. He has had the advantage of observing the witnesses. One of them, as I said before, is a gentleman of very high standing in the commercial world, for whose suggested perjury I have not been able to discover an adequate motive.

8. Then follows the passage that I have already read, 'I do not profess to have weighed the evidence with any great care or thoroughness.' It is perhaps a little unfortunate that the learned Judge used that expression but it seems certain beyond any doubt whatever that the learned Judge was of opinion that there was nothing put before him which could indicate that the decision arrived at by the learned Official Referee was clearly wrong. We have listened to learned Counsel for the appellant and we invited him to read anything in the evidence which might show that either the Referee or the learned Judge was wrong. We gave every opportunity to the learned Counsel of going into the evidence although in my opinion we in the circumstances were not bound to do so. The learned Counsel has utterly failed to show that there was anything either in the judgment or in the evidence upon which the findings of the Official Referee and the learned Judge are based which in any way indicates that either the judgment or the report was wrong in law. In these circumstances, the appeal must be dismissed. This judgment will govern the other appeal also. There will be one set of costs to the respondents for both the appeals.

Williams, J.

9. I agree.


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