BHAIROBUX MANGILAL Vs. DEOKARAN

JUDGEMENT

(1.) This suit is a commercial case and, but for unforeseen events would have been tried by the Judge taking commercial caes. I desire to remind attorneys and the public that commercial cases that have come into this list, can on application to me be always marked as such, and it is better that all these cases should be tried as commercial cases.

(2.) There are three real points in the case. The first is a technical point, that of parties. The second is whether there was a dissolution of a firm carrying on business under the name of Deokran Ramkissen in May 1926 coupled with an adjustment of accounts of that firm and the third is whether, if there was such an adjustment, the debt found due upon that adjustment was guaranteed by another firm Sumburam Protabmull in July 1928. There is a subsidiary point, whether the question of guarantee has not been already decided by the Jodhpur Court and whether that decision is binding under the provision of Section 13, Civil P. C.

(3.) I will deal with the first point last because the parties are entitled to have my decision upon the questions of fact. I will dispose first of the question of guarantee. This depends upon the oral evidence of Bhairobux and upon the document Ex. F which I referred to at various times as the pink paper, signed by Ramcoomar, the gomastha of Sumburam Protabmull. The onus is undoubtedly upon the plaintiffs to prove both the fact of the guarantee and also authority. As to authority, there is little evidence, assuming I am not bound by the decision of the Jodhpur Court. I do not think that Ramcoomar was merely the cashier. He had authority to do whatever business was done by the firm. On the other hand there is in fact no evidence to show that it was part of the business of this firm to give guarantees. (After examining the facts of the case and the evidence His Lordship proceeded). This is my conclusion. I find therefore there was that no adjustment of the accounts of the firm of Deokaran Ramkissen as a whole in respect of the liability of Deokaran Ramkissen bo Bhairobux Mangilal, for which Deokaran and Ramkissen had agreed to be responsible. Bhairobux, I do not believe.