BHAGWANT GENUJI GIRMEGANGABISAN RAMGOPAL AGARWAL Vs. GANGABISAN RAMGOPALYESHWANT BAPUJI

JUDGEMENT

(1.) THESE are two cross-appeals from a decree of the First Class Subordinate Judge at Ahmednagar in a suit to recover damages for breach of contract in the amount of Rs. 9,422-15-3 from the defendants. The alleged contract related to the collection of toll on public roads in the Ahmednagar District, one on the Ahmednagar-Poona road and the other Ahmednagar-Manmad road. The right to collect that toll for one year commencing from April 1, 1933, was publicly auctioned by the Collector on March 2, 1933. It is the plaintiff's case that on, the eve of that auction he with the defendants entered into a partnership to acquire the lease of the tolls from Government and to collect the toll for the benefit of the partnership. It was also agreed according to him that the partners should not bid against one another. It is said that at the auction the lease of thesetwo tolls was secured for the partnership, the bidders being the plaintiff and defendant No.1 for the Nagar-Poona road, and defendants Nos. 1 and 2 for the Nagar-Manmad road. The highest bids offered were Rs. 9,925 for the former and Rs. 14,000 for the latter. It was further alleged that subsequent thereto the partners considered it advisable to allow the tolls to be worked by one amongst them to whom it was agreed to assign the lease from Government, provided he was the highest bidder at a re-auction held among the partners themselves, and that accordingly the next day a re-auction, which is described in the record of these proceedings as ' Uchhat', was held, and the plaintiff was declared the highest bidder for the two tolls, he offering Rs. 16,575 for the Manmad road and Rs. 9,90.1 for the Poona road. The latter was less by Rs. 24 than the amount originally bid at the public auction held by the Collector. There was a profit of Rs. 2,551 on the former transaction which was divisible among the partners. According to the plaintiff that profit was distributed among the partners according to their respective shares and was paid partly in cash at the rate of Rs. 90 per share and partly in the form of promissory notes executed by the plaintiff in favour of the partners, there being a counter-writing by the latter not to charge interest on the promissory-notes and to accept repayment of the amount stated therein by instalments. In pursuance of that agreement a document reciting the arrangement arrived at was executed in favour of the plaintiff on the same day by defendants Nos. 1 and 2 who with the plaintiff were recognized as the ostensible bidders at the public auction by the Collector.

(2.) THE controversy in these appeals principally centres round the legality and admissibility of that document. THE material terms of that writing can be shortly stated. After reciting the fact of the bidding at the auction the document (exhibit 56) proceeds to say:- (We) Yeshwant Bapuji Kulkarni (defendant No.1) and Bhagwant Genuji Girme (defendant No.2) give up all our rights in the said contracts. Now (the said) Yeshwant Bapuji Kulkarni and Bhagwant Genuji Girme have got no right over the (tolls of the) said two roads. Gangabisan Ramgopal (plaintiff) should make Wahiwat in his capacity as sole owner (of the said contracts) and in the course of such Wahivat, should take all the income of the toll-Nakas in his right as owner and he should bear all the. expenses. THE responsibility of any profit or loss rests on the sole head of the plaintiff. THE profit derived at the private auction has been given by Gangabisan Ramgopal to (defendant No.1) Yeshwant and (defendant No.2) Bhagwant. THEre is no dispute left in that connection. Thus Yeahwant Bapuji Kulkarni (defendant No.1) and Bhagwant Genuji Girme (defendant No.2) have given up their right over the (tolls of the) two roads. (THE plaintiff) Gangabisan should make Wahiwat in his right as sole, owner and should take the income of the Nakas, pay the instalments due to the Government in the prescribed time, act according to the conditions of the toll contracts, and deposit 10 per cent (immediately). Security bonds-Kabulayats-have to be passed in favour of the Government. THEy should be completed by the respective persons in whose names the contracts are made with Government, and the sureties needed therefor should be Madhav Gangadhar Bagde (defendant No.3), Dada-bhai Velji (defendant No.4), Narayanrao Sopanrao Boravke and Ganeshlal Radha-kisan (plaintiff's nephew). If the plaintiff fails to pay the instalments due to Government and if the original contractors at the auction are constrained to pay the same, then the original contractors at the auction shall be entitled to recover the monies from Gangabisan Ramgopal with interest... In connection with Government work the original contractors should make signatures from time to time on applications and at: other times when such signatures are necessary and should be in person present whenever that is necessary. THE cost incidental to such acts should be borne by Gangabisan.

(3.) THE other defendants denied altogether the allegations made by the plaintiff and their liability to the plaintiff's claim.