Judgment

VAIDIALINGAM, J.: The defendant appellant, in this appeal, by certificate, challenges the judgment and decree dated October 18, 1960 of the Madhya Pradesh High Court in First Appeal No. 71 of 1957 reversing the decree of the trial Court.

2. The circumstances leading up to the institution of the suit on September 4,1952 by the respondents, out of which these proceedings arise may be stated: The respondents instituted Civil Suit No. 7-B of 1955 in the Court of the Additional District Judge, Raipur, against the appellant for recovery of a sum of Rs. 55618/10/-comprised of Rs. 46900/- as principal and Rs. 8718/10/- in respect of interest on the said amount. The plaint allegations are briefly as follows:

3. The plaintiff is a banker and money lender and the defendant is a merchant. Early in October, 1949, the appellant who was building a cinema house and wanted to equip the same with necessary furniture and machinery for the purpose of conducting cinema shows, approached the respondent for a loan to enable him to complete the work. The respondent agreed to give a loan up to Rs. 50,000/-. Accordingly from October 4, 1949 to September 20, 1950 on different dates he advanced various amounts totaling Rs. 46,900/-. Details of the dates and the amounts so advanced were all given in the schedule to the plaint. In particular, according to the plaintiff, he lent Rs. 900/- on September 26, 1950. No repayments had been made by the defendant in spite of demands. Accordingly, the suit was instituted for the recovery of the amount, mentioned earlier.

4. The defendant in his written statement dated June 30, 1953 pleaded as follows: He admitted having taken a loan of Rs. 46000/-, but denied having received Rs. 900/- on September 26, 1950 as alleged by the plaintiff. He pleaded that a partnership had been entered into between himself, the plaintiff and one Shambhu Dayal Shukla on October 4, 1949. He referred to some of the clauses in the partnership deed, particularly Cl. 10. The partnership was for the purpose of exhibiting cinema films in the building concerned. The partnership was to pay rent for his building at Rs. 2125/-. According to the terms of the partnership deed the plaintiff was to appropriate towards the loan the share of profits of the defendant in the partnership as well as the monthly rent payable by the partnership to him. The partnership continued till March 22, 1953 and no accounts of the partnership had been taken. Therefore, it was impossible to determine the profits that have accrued to his share as well as the credit that should have been made in his favour to respect of the rent of the building. Taking into account his share of profits and the rents payable to him, the plaintiff s claim should be deemed to have been fully satisfied. The loan was advanced by the plaintiff to the defendant as a partner under the partnership deed and as the loan has to be adjusted in the manner referred to in the said deed, the suit for recovery of the loan is not maintainable. In any event, as the correct picture regarding the credit of the share of profit and the rent due to the defendant will be available only on accounts being taken, the plaintiff s remedy was to file a suit for dissolution of partnership and for taking accounts. The amount of interest claimed by the plaintiff was erroneous and the correct amount would be only Rs. 3098/14/9.

5. The plaintiff filed on September 25, 1953 an application for the amendment of the plaint. The amendment sought was for introducing an averment to the effect that the amount sued upon was loan advanced to the defendant and that it had nothing to do with the partnership. Clause 10 of the partnership agreement only indicated one made by which the plaintiff was enabled to recover his dues. As the partnership business was running at a loss, there was no question of the defendant having got any profits as and for his share and no credits have been made for rent. It is seen that the Court by its order