FIRM RAM SAHAY MALL RAMESHWAR DAYAL Vs. BISHWANATH PRASAD

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit for recovery of Rs. 41,500/-, said to have been advanced through hundis and bank drafts to a firm known as Ram Sahay Mall Rameshwar Dayal (Defendant No. 1), besides compensation at 1 per cent per month from the different dates, respectively, of the hundis and the bank drafts. The case of the plaintiff, as made out at the time of hearing, was that the said amount was advanced as loan. It was further alleged that defendants 2 to 7 were members of a joint Hindu family governed by the Mitakshra School of Hindu Law, and the said firm Ram Sahay Mall Rameshwar Dayal, which is located at Konch in Uttar Pradesh, belonged to them. Defendants 8 and 9, who are alleged to belong to another joint Hindu family, are said to be partners, along with the aforesaid defendants 2 to 7, of an Ice Factory for which the loan in question is alleged to have been advanced.

(2.) Defendants 1, 5 and 8 filed one written statement, and denied all the allegations made by the plaintiff. They said that the plaintiff negotiated with these defendants to be a partner in their Ice Factory and also to start a grain business in partnership. It was agreed that the plaintiff would have four annas share in the Ice Factory, which was the sole concern of these defendants, and eight annas share in the grain business to be started in the name and style of Saligram Mohanlal, which was first started in the commission agency of defendant No. I, as the parties thought it proper to start independently the business of Saligram Mohanlal on an auspicious date, which fell on the 15th April, 1951. In pursuance of the agreement regarding partnership, the plaintiff began to send moneys from time to time through hundis and bank drafts towards his shares to Konch, where the Ice Factory and the grain business were situated. The total amount of advance, namely, Rs. 41,500/-, is admitted; but it is said that, out of the same, Rs. 25,000/- only was credited to the accounts of the Ice Factory against the four annas share of the plaintiff and the balance was credited towards the grain business against his eight annas share. As the lead of the Ice Factory cracked arid the Jai Engine failed, the factory was closed. Similarly, on account of restrictions imposed by the U. P. Government on the transport of gram and fear of seizure of stock, the grain business was also stopped by the plaintiff's agents who were in charge' thereof. The jurisdiction of the Patna Court was also challenged. The other defendants filed separate written statements but they substantially supported the case of defendants 1, 5 and 8. All the defendants asserted that defendants 2 to 4, 6, 7 and 9 had nothing to do with either the said firm Ram Sahay Mall Rameshwar Dayal or with the Ice Factory and the grain business.

(3.) Only the material issue was raised in the suit, namely, whether the plaintiff had advanced any loan to the defendants, and, if so, what amount and from which of the defendants he was entitled to recover. The learned Subordinate Judge accepted the case of the plaintiff that the amount of Rs. 41,500/- had been advanced as loan and that all the defendants were liable to pay the same, besides interest at the rate of 9 per centum per annum simple.