ABDUL RAZAAK Vs. MASHIRUDDIN AHMED

JUDGEMENT

(1.) This is a short appeal, arising out of a suit for dissolution of partnership and accounts. Briefly stated, the relevant facts are these:

(2.) On 7th Pous, 1356 B. S. corresponding to December, 22, 1949, the parties before us, who were the plaintiff and the defendant in the court below, entered into a partnership under an agreement, which is Ext. 1 in the case. At the time of entering into that partnership, the parties had already entered into a contract with the Government for supply of 35 lacs of bricks. Predominantly for the purpose of that supply, the partnership was entered into, but there are certain indications in the deed (Ext. 1) itself, under which inter alia the plaintiff had 10 annas share and the defendant 6 annas share in the partnership business, that other works might be undertaken by the parties under and during the continuance of that partnership and there was also no specific term that the said partnership would come to an end on the completion of the above supply to the Government. The plain-tiff's case is that the above quantity of bricks, namely, 35 lacs was duly supplied to the Government by Bhadra 1357 B. S. and account was also taken and adjusted between the parties and distribution of profits made on the basis of that adjustment for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. There was, thereafter, some trouble between the parties and there was a salish, under which the shares were altered to 8 annas for each of the two parties. The plaintiffs complaint is that, in May, 1951, the defendant purported to have supplied a quantity of bricks, namely, 5 lacs 84 thousand and 8 hundred to the Government professing to act only for himself, and withdrew money on that account separately and appropriated the same. It was inter alia the plaintiff's case that that supply was made out of the excess bricks which had been manufactured in connection with the prior supply of 35 lacs of bricks to the Government. The plaintiff also contended that the defendant fraudulently took the payment under a misrepresentation from the Government that it was his own supply or a supply on his own behalf and not on behalf of the partnership or on behalf of the parties jointly. Upon that footing and upon that allegation, inter alia, he brought the present suit on. March 10, 1952, for dissolution of the partnership and for accounts stating inter alia that the accounts between the parties for the period between the 7th of Pous 1356 B. S. and Bhadra 1357 B. S. having already been adjusted and settled between them, accounts will have to be taken only from after that period; in other words, the plaintiff demanded accounts from the defendant in respect of the manufacture and supply of the 5 lacs 84 thousand 8 hundred bricks, as mentioned thereinbefore.

(3.) The suit was resisted by the defendant and his principal defence was that the above supply of 5 lacs 84 thousand and 8 hundred bricks was out of bricks, manufactured by the defendant alone and not on behalf of both the parties or of the partnership between them; that the said partnership had ended with the original supply or transaction, namely, the supply of the 35 lacs of bricks, and that the supply of 5 lacs 84 thousand and 8 hundred bricks was made out of bricks, manufactured by the defendant on his own account upon a distinct understanding to that effect with the plaintiff. To these defences a further point was added--and that was very strenuously urged--in this Court, namely, that the suit was barred under Section 69 of the Indian Partnership Act. This point does not appear to have been specifically taken in the written statement, though paragraph 22 thereof may be read somehow to cover it but, at any rate, it was not raised in the issues before the trial Court nor urged before the learned Subordinate Judge at the hearing and we find no reference to it in the judgment of the said Court below. There was also a further defence specifically to the effect that no accounts had at all been taken or adjusted or settled between the parties and the plaintiffs allegation that there was such settlement and adjustment of accounts for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. was specifically denied. Except this last defence, all the other defences were overruled by the learned Subordinate Judge who passed a decree in favour of the plaintiff, decreeing the suit preliminarily for dissolution of partnership and for accounts for the entire period from the commencement of the partnership till the date of the suit--such accounts being directed to be taken by a Commissioner, to be appointed for the purpose,--holding inter alia that the supply of 5 lacs 84 thousand and 8 hundred bricks, as made by the defendant, was on behalf of the partnership and out of the partnership assets, and, in any event, under Sections 16 and 17 of the Indian Partnership Act, the benefit of that supply also would enure to both parties and the defendant was liable to account for the same to the plaintiff. Against this decree, the present appeal was preferred by the defendant and the plaintiff, in his turn, filed a cross-objection, objecting to the disallowance of his claim or contention that accounts for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. had been settled and adjusted between the parties and profits distributed on such settlement and adjustment and that, accordingly, accounts were to be taken only for the period thereafter. This appeal and the cross-objection are now before as for disposal.