- (1.)THIS suit was originally instituted by the firm of Ramdhandas Bhagwandas on March 23, 1957. Subsequently, the plaint was amended and the plaintiff firm was described as the firm of Ramdhandas Biharilal carrying on business inter alia under the name of Ramdhandas Bhagwandas at 56, Netaji Subhas Road in the town of Calcutta. The plaintiff firm sues to recover a sum of Rs. 10,000/-and interest thereon said to be due to the plaintiff firm for moneys lent and advanced by the plaintiff firm to the defendant No. 1 Tiloke Chand Chopra and in respect of which the defendant No. 1 is said to have executed a Rukka dated Chait Badi 5 Sambat year 2010 corresponding to March 24, 1954 in favour of the defendant No. 2 Ramjivan Saraf, one of the partners of the plaintiff firm. Both Tilokechand Chopra and Ramjiban Saraf are impleaded as defendants in the suit. The evidence of Jugraj Sharma shows that a certain firm carrying on business under the name of Ramdhandas Bhagwandas lent and advanced a sum of Rs. 10,000/- to the defendant Tiloke Chand Chopra sometime in Sambat year 2007 or 2008, that Tiloke Chand did not repay the money though the period of limitation was going to expire and that on being pressed for payment Tiloke Chand executed the rukka in question.
(2.)NOW the plaintiff firm of Ramdhandas Biharilal was not in existence on March 24, 1954 or on any earlier date when the loan was advanced. Ext. A, the copy of the entry in the register of firms as also Ext. 1, the copy of the application for registration of the firm by its partners show that this firm was established and came into existence on June 4, 1954. This is corroborated by the evidence of Gajanand Shroff (Q. 27 ). The partners of this firm are five in number. Their names are (1) Ramjibon Saraf, (2) Parameswarlal Saraf, (3) Kashi Prasad Saraf, (4) Gajanand Saraf and (5) Hanuman Prasad Saraf. It is plain beyond doubt that the firm of Ramdhandas Biharilal referred to in Ext. A and Ext. 1 is the plaintiff before us. The learned trial Judge held that the plaintiff firm was established long ago and was in existence when the loan was advanced and the rukka was executed. We regret that we are unable to share this view. The evidence of Jugraj Sharma undoubtedly shows that a certain firm of the name of Ramdhandas Bhagwandas advanced the loan, that, that firm of Ramdhandas Bhagwandas was in existence in Sambat year 2001 and even prior thereto and that the firm of the name of Ramdhandas Bhagwandas which advanced the loan was really the name and style in which a certain firm of Ramdhandas Biharilal carried on business in Calcutta But the evidence of Jugraj Sharma (Qq. 4, 5 and 24 to 26) also shows that the partners of the particular firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan were five in number and their names were (1) Bhagwanmal shroff, (2) Ramjibon Shroff, (3) Shova Chand Shroff, (4) Phokarmal Shroff and (5) Biswanath Shroff. The copy of the application for registration of the firm of Ramdhandas Bhagwandas (Ex. 2) however shows that the partners of that firm were four in number and their names were (1) Bhagwandas Saraf, (2) Ramjibon Saraf, (3) Hanumanbux Bajle and (4) Bhagwandas Jalan. It is not necessary to decide whether the persons referred to by Jugraj Sharma in his answer to question 24 or the persons referred to in Ext. 2 constituted the firm of Ramdhandas Bhagwandas on the date when the loan of Rs. 10,000/- was advanced to Tiloke Chand or on the date when the Rukka was executed. On the evidence it is plain enough that the firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan is distinct and separate from the plaintiff firm of Ramdhandas Biharilal carrying on business inter alia Under the name and style of Ramdhandas Bhagwandas which came into existence on June 4, 1954. Parameshwarlal Saraf, Kashiprasad Saraf, Gajanand Saraf and Hanumanprasad Saraf are partners of the plaintiff firm but those persons were not partners of the firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan. Again none of the persons referred to in Ext 2 or in the evidence of Jugraj Sharma (Q. 24) other than Ramjibon Saraf is a partner of the plaintiff firm. Some confusion has arisen between the firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan and the plaintiff firm because of the identity of name but the two firms are separate and distinct. There has been no assignment of the debt by the creditor firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal in favour of the plaintiff firm; nor has there been a novation or a substituted promise by the debtor to repay the loan to the plaintiff firm. The plaintiff firm was not in existence on the date of the loan or on the date of the rukka and is not entitled to recover the loan in this suit.
(3.)AN argument was advanced before us that the entry in the register of firms with regard to the date of the establishment of the plaintiff firm is conclusive as against the partners of the plaintiff firm having regard to section 68 (1) of the Indian Partnership Act and having regard to the fact that that date is also mentioned in Ext. 2 which was signed by the partners of the plaintiff firm. We do not think it necessary to examine this contention. On the evidence before us we are satisfied that the plaintiff firm of Ramdhandas Biharilal was established on June 4, 1954 and was not in existence on the date of the loan or on the date of the rukka. The decree passed by the learned trial Judge in favour of the plaintiff firm cannot be sustained.