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High Court Of Rajasthan
Judgename : Ranawat
KALYAN SAHAI - Appellant
Versus
FIRM LACHHMINARAIN SHAMBHULAL - Respondent
Case 78 Of 1949
Decided On : 10/27/1950
PARTNERSHIP ACT - REGISTRATION - SUIT BY UNREGISTERED FIRM - MAINTAINABILITY - SECTION 69 - FACT OF REGISTRATION - MIXED QUESTION OF LAW AND FACT - CANNOT BE RAISED FOR THE FIRST TIME IN SECOND APPEAL - INTEREST - DISCRETION OF COURT - INTERFERENCE BY APPELLATE COURT - REASONS TO BE GIVEN - PAYMENT OF MONEY - DOCUMENT EVIDENCING PAYMENT - LOST OR MISPLACED - ORAL EVIDENCE ADMISSIBLE - INTEREST ACT - INTEREST ON DEBTS OR SUMS CERTAIN - DATE FOR PAYMENT FIXED OR NOTICE OF DEMAND REQUIRED - SALE OF GOODS ACT - INTEREST ON PRICE OF GOODS SOLD - DATE OF PAYMENT MUST BE CERTAIN - CONTRACT ACT - INTEREST BY WAY OF DAMAGES - CONTRACT FOR PAYMENT OF MONEY ON SPECIFIED DATE NECESSARY.
Fact of the Case:
A suit was filed by a firm against another firm for an amount of Rs. 573-7-0, alleging that the defendants had taken cloth and cash from the plaintiffs firm and had paid only a part of the amount, leaving a balance of Rs. 557-7-0. The defendants disputed the claim, with one of them admitting the claim in full and the other denying the existence of a partnership firm and the dealings alleged by the plaintiff.
Finding of the Court:
The trial court granted a decree to the plaintiff against both defendants for Rs. 573-7-0 with future interest at 4 1/2% per annum. The lower appellate court reduced the amount of the decree to Rs. 422-12-0 but increased the rate of future interest to 6% per annum. The defendant who had denied the claim filed a second appeal.
Issues: 1. Whether the suit was maintainable by virtue of the provisions of Section 69, Partnership Act, as both the firms of the plaintiff and the defendant were not registered under the Partnership Act. 2. Whether the lower Appellate Court acted rightly in interfering with the discretion of the trial Court in the matter of awarding future interest under Section 34, Civil P. C. 3. Whether the payment of Rs. 250 was held to be proved by both the Courts below on the strength of the evidence of witnesses, but the plaintiff ought to have produced the document alleged to have been written by Kalyan Sahai, and under Section 61, Evidence Act, oral evidence was not admissible for the purposes of proving this payment. 4. Whether the plaintiff failed to prove the existence of any contract or any custom or usage for the payment of interest on the sums due from the defendants.
Ratio Decidendi: 1. The question of whether a firm is registered under the Partnership Act is a mixed question of law and fact and cannot be raised for the first time in second appeal. 2. The appellate court should not interfere with the discretion of the trial court in awarding future interest without good reasons. 3. Oral evidence relating to the fact of payment of Rs. 250 was admissible into evidence even though the document written by Kalyan Sahai requesting Lachhminarain to advance him a sum of Rs. 250 was not produced, as the fact of payment did not form part of the contents of that document. 4. The plaintiff is not entitled to claim interest from the defendants as there was no date fixed for the payment of the out standings, nor was there any notice served claiming interest thereon.
Final Decision: The second appeal was partially allowed. The decree of the court below was reduced by Rs. 52-4-0 and the future rate of interest was reduced from 6% per annum to 4 1/2% per annum.
RANAWAT, J.
( 1 ) THE firm of Lachhminarain Shambhulal acting through Lachhminarin filed a suit in the Court of the Munsif at Dausa on 20-10-1946, against Bhangwan sahai and Kalyan Sahai for an amount of Rs. 573-7-0 with the allegations that the defendants had a partnership firm at Ranoli which used to deal in cloth, and which from time to time took from the plaintiffs firm cloth and cash to the extent) of Rs. 1,115-7-0 out of which an amount of Rs. 558 was paid to the plaintiff, thus leaving a balance of Rs. 557-7-0 against the defendants. The plaintiff added Rs. 16 by way of interest to the amount of Rs. 557-7-0 and claimed Rs. 573-7-0 from the defendants.
( 2 ) KALYAN Sahai, one of the defendants, disputed the claim of the plaintiff but bhagwan Sahai admitted the claim in full. Kalyan Sahai alleged that there was no partnership firm of Bhagwan Sahai and Kalyan Sahai at Ranoli, and that the dealings alleged by the plaintiff did not take place.
( 3 ) AFTER trying the case the Munsif, on 29-4-1947, granted a decree to the plaintiff and against both the defendants for an amount of Rs. 573-7. 0 with future interest at the rate of 4 1/2 per cent. per annum.
( 4 ) ON an appeal filed by the defendant Kalyan Sahai, the District Judge, Sawai jaipur, on 31-5-1948, reduced the amount of the decree to Rs. 422-12-0, but increased the rate of future interest to 6 per cent, per annum. Kalyan Sahai has now filed this second appeal against the judgment and decree of the Court of the District Judge, Sawai Jaipur, with the prayer that the decretal amount may be reduced by Rs. 302-4-0.
( 5 ) AT the time of the hearing of this appeal, the learned counsel on behalf of the appellant has raised the following points: (1) that the suit of the plaintiff is not maintainable by virtue of the provisions of Section 69, Partnership Act. as both the firms of the plaintiff and the defendant were not registered under the partnership Act, (2) that the lower Appellate Court did not act rightly in interfering with the discretion of the trial Court in the matter of awarding future interest under Section 34, Civil P. C. (3) that the payment of Rs. 250 was held to be proved by both the Courts below on the strength of the evidence of witnesses, but the plaintiff ought to have produced the document alleged to have been written by Kalyan Sahai, and under Section 61, Evidence Act, oral evidence was not admissible for the purposes of proving this payment. According to the appellant, the finding relating to the payment of Rs. 250 was based on evidence which was not admissible in evidence according to law, and (4) that the plaintiff failed to prove the existence of any contract or any custom or usage for the payment of interest on the sums due from the defendants. Rs. 52-4-0 which were allowed to the plaintiff by way of interest should be deducted from the amount of the decree.
( 6 ) SECTION 69 (1), Partnership Act is as follows: "no suit to enforce a right arising from a contract or conferred by this act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. "
( 7 ) THIS suit was filed on behalf of the firm Lachhminarain Shambhulal against the partnership firm of Bhagwan Sahai Kalyan Sahai, and it is urged on behalf of the plaintiff that Lachhminarain in his statement has admitted that the firm of the plaintiff was a partnership firm but it may be pointed our, that nowhere in the Courts below did the defendant question the fact of registration of the two firms A new point has now been raised in this second appeal to the effect that the plaintiff firm and the firm of the defendants were not registered, and it is urged on this account that the suit was not maintainable by virtue of the provisions of Section 69, Partnersh
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