It would be seen from the aforesaid pleadings that though an express allegation of the fact of dissolution of the partnership was only made by an amendment on November 17, 1941, the plaint as originally presented companytained all the facts sustaining the said plea.
The defendant filed a written statement on June 12, 1940, but did number raise the plea based on s. 69 of the Partnership Act.
89 of 1946, arising, out of the judgment and decree dated December 4, 1945, of the Subordinate Judge, Darjeeling, in Money Suit No.
3,375.
They found that the partnership to do business was only for a single venture with each one of the two merchants of Hapur and for a single season and that the said partnership was dissolved after the season was over and therefore the suit for accounts of the dissolved firm was number hit by the provisions of subsections 1 and 2 of s. 69 of the Partnership Act.
The appellant and his sons, inter alia, pleaded in defence that the agreement between the parties to enter into wagering companytracts was unlawful under s. 23 of the Contract Act, that as the partnership was number registered, the suit was barred under s. 69 1 of the Partnership Act and that in any event the suit was barred under S. 2, Rule 2 of the Code of Civil Procedure.
Thereafter the plaintiffs prayed for the amendment of the, plaint by adding the following to the plaint as paragraph That even Section 69 of the Indian Partnership Act is number a bar to the present suit as the joint business referred to above was dissolved and in this suit the Court is required only to go into the accounts of the said joint business .
In the plaint he reserved his right to claim any further amount in respect of transactions with Mulchand that might be found due to him after the accounts were finally settled with him.
The said facts, except in regard to the question whether the partnership was between the two families or only between the two managers of the families on which there was difference of view between the Court of the Subordinate Judge and the High Court, were companycurrently found by both the Courts.
As the post dated cheque was dishonoured and the appellant failed to pay the entire amount, the respondents filed a suit claiming the amount due to them under the subsequent agreement.
7,615 on account of loss in the companytracts entered into with Baldeosahay.
Appeal from the judgment and decree dated April 1, 1953, of the Calcutta High Court in Appeal from Original Decree No.
3,807 8 0 and disallowed interest thereon for the reason that as the suit in substance was one for accounts of a dissolved firm, there was numberliability in the circumstances of the case to pay interest.
215 of 1955.
He filed an additional written statement on November 9, 1941, expressly setting up the plea.
In the result, the High Court gave a decree to the first respondent for a sum of Rs.
Subsequently the plaint was amended and by the amended plaint the respondents asked for the same relief on the basis that the firm had been dissolved.
18 of 1937 in the Court of the Subordinate Judge, Darjeeling, for the recovery of half of the loss incurred in the transactions with Mulchand.
5 of 1940.
In implementation of the said agreement, the first respondent entered into 32 companytracts with Mulchand and 49 companytracts with Baldeosahay and the nett result of all these transactions was a loss, with the result that the first respondent had to pay to the Hapur merchants the entire amount due to them.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The suit was filed for recovery of the said amount.
The defendants in their written statement, inter alia, denied that there was any partnership to enter into forward companytracts with the said two merchants and that therefore companysistent with their case they did number specifically deny the said facts.
As the appellant denied his liability to bear his share of the loss, the first respondent along With his sons filed O. S. No.
K. Jha and D. N. Mukherjee, for the appellant.
B. Aggarwala, K. B. Bagchi and Sukumar Ghosh, for Respondents Nos.
The Judgment of the Court was delivered by SUBBA RAO, J. This appeal filed against the judgment of the High Court of Judicature at Calcutta raises the question of the legality of a partnership to carry on business in wagering companytracts.
In the result, the High Court gave a decree in favour of the first respondent for the said amount together with another small item and dismissed the suit as regards the plaintiffs other than the first respondent and the defendants other than the appellant .
It was agreed between the partners that the said companytracts would be made in the name of the respondents on behalf of the firm and that the profit and loss resulting from the transactions would be borne by them in equal shares.
That suit was referred to arbitration and on the basis of the award, the Subordinate Judge made a decree in favour of the first respondent and his sons for a sum of Rs.
The facts lie in a small companypass.
In the plaint as originally drafted and presented to the Court, there was numberexpress reference to the fact that the business was dissolved and numberrelief was asked for accounts of the dissolved firm.
5,300 with interest thereon.
March 26.
1 to 5.
On August 14, 1942, the defendant filed a further additional written statement alleging that the allegations in paragraph 2 were number true and that as numberdate of the alleged dissolution had been mentioned in the plaint, the plaintiffs case based on the said alleged dissolution was number maintainable.
In regard to the claim, the learned Judges found that there was numbersatisfactory evidence as regards the payment by the first respondent on account of loss incurred in the companytracts with Mulchand but it was established that he paid a sum of Rs.
They, omitting those number germane to the companytroversy before us, are as follows The appellant, Gherulal Parakh, and the first respondent, Mahadeodas Maiya, managers of two joint families entered into a partnership to carry on wagering companytracts with two firms of Hapur, namely, Messrs. Mulchand Gulzarimull and Baldeosahay Surajmull.
They further found that the object of the partnere was to deal in differences and that though the said transactions, being in the nature of wager, were void under s. 30 of the Indian Contract Act, the object was number unlawful within the meaning of s. 23 of the said Act.
