BEDABAR SAHU Vs. KHETRAMANI BANK

JUDGEMENT

(1.) THE plaintiff brought a money suit for realisation of Rs. 286.75 paise from the defendant (petitioner) on the allegation that the defendant was doing contract business and the plaintiff advanced him a sum of Rs. 2,000/- by instalments on condition that the defendant would pay half the profit of the business together with the amount advanced in case of profit, but in case of loss the defendant would refund the amount advanced. THE plaintiffs case was that ultimately this agreement failed and there was an accounting. On 7-8-64 there was an agreement that the defendant would pay a sum of Rs. 375/- and that he would pay a further sum of 2/3rd out of the security deposit with the Government after deduction of costs. THE defendant did not pay up any amount in accordance with the agreement THE defendant admitted the original agreement and advance of money by the plaintiff. He also accepted the position that after accounts were taken an agreement was executed on 7-8-64 fixing up the liability of the defendant as stated in the plaint. He however took the plea that he had paid up the entire amount and that the suit was hit by Section 8 of the Orissa Money Lenders Act and Section 69 of the Indian Partnership Act. Both the courts below negatived all the contentions of the defendant. This Civil Revision has been filed against the appellate decree.

(2.) THE only point urged by Mr. Sinha is that Section 69 of the Indian Partnership Act is a bar to such a claim. S. 69, sub-section (3), Clause (a) runs thus :"( 3) THE provisions of sub-sections (1) and (2) shall apply also to a claim of set off or other proceeding to enforce a right arising from a contract, but shall not affect (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm." x x x" THE present claim of the plaintiff is directly covered by the last clause in sub-section (3) (a). Non-registration of the firm would not thus stand as a bar in respect of any right or power to realise the property of a dissolved firm. THE question for consideration is whether the dues of the plaintiff against the defendant after accounts being taken retain the character of the property of a dissolved firm. In one sense it can be, namely, this property had belonged to the firm before dissolution and after dissolution and accounting it came to the hands of the plaintiff who has the right to realise it from the defendant. THE present case comes within this exception. THE matter is also covered by a decision of this Court reported in 25 Cut LT 34 : AIR 1959 Orissa 110, Daitari Mohapatra v. Brundaban Hatia.