Bhagat Singh vs Pritam Singh

N.K. Kapoor, J.—This is defendant''s second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the plaintiff was accepted thereby decreeing their suit.

It is the case of the plaintiffs that they were Partners in M/s Manku Foundry Works having 4/7th share and the remaining 3/7th share was of the defendants. This partnership was dissolved on 31.3.1969 vide dissolution deed of the same date. Accordingly, the plaintiffs retired from the partnership and the partnership business was exclusively taken over by the defendants. It is further the case of the plaintiffs that assets of the partnership business were actually divided between the two branches of the partnership representing plaintiffs and defendants. There was a difference of price of two lots allotted to each branch and so Phuman Singh representing the defendants agreed to pay a sum of Rs. 3,5000/- in cash to Maluk Singh representing the plaintiffs so as to make up the difference of price of machinery and the accessories allotted to them. It was also agreed that the ''Kapas Belini'' would remain joint as before and the same has now been used by the defendants. The plaintiffs thus claimed a sum of Rs. 3,500/- as admitted by the defendants and their share in ''Kapas Belni'' valued at Rs. 571.43. Since the defendants refused to accept the claim of the plaintiffs, hence the suit.

On the pleadings of the parties following issues were framed:-

Whether the suit as framed is not maintainable ?

Whether the suit is within time ?

Whether the partnership was dissolved on 31.3.1969. If so, what were its terms and to what effect ?

Whether there was any agreement between the parties dated 7.4.1969 and what were its terms ?

Whether the plaintiffs are entitled to decree of Rs. 4,071.43?

Relief.

Issue No. 1 was decided in favour of the plaintiffs. Issue No. 2 was also decided in favour of the plaintiffs. Under issue No. 3 it was held that the partnership was dissolved on 31.3.1969 and the terms of the dissolution of partnership were duly incorporated in the writing Exhibit DW7/A. Under issue No. 4, the trial Court held that there was no valid agreement between the plaintiffs. The trial Court also decided issue No. 5 against the plaintiffs in view of its decision on issue No. 4 Resultantly, the suit of the plaintiffs was dismissed.

Additional District Judge on perusal of documentary evidence as well as oral evidence adduced by the respective parties formed a view that the execution of agreement between Sarv. Sh. Maluk Singh and Phuman Singh representing two separate branches is proved on record. For this, reference was made to the statement of Shankar Dass PW1 scribe of the agreement and Mohan Singh another witness to the agreement. In addition thereto, the appellant Court made mention of the fact that the defendants in their written statement have denied the execution of agreement only in a general way. Since the agreement has been proved as per statement of the scribe and the witness to the agreement and otherwise also it was found that the same bears the signatures of Phuman Singh which when compared with the signatures on power of attorney and the written statement tally, appellate Court came to the conclusion that the agreement stands proved. Accordingly, the finding of the trail court in this respect was reversed. As regard the second item i.e. share of the plaintiffs in ''Kapas Belni'', the Court came to the conclusion that the same was kept joint and so was used by the defendants. Its value was assessed at Rs. 1,000/- Since the plaintiffs share was 4/7th in this item, the amount payable by the defendants was determined at Rs. 571.43. Accordingly, the appeal was accepted and the suit of the plaintiffs was decreed for a sum of Rs. 4,071.43.

Learned counsel for the appellants after referring to the factual aspects noticed above once again highlighted the submission made by the counsel for the appellants before the Court below. According to the counsel, the finding of the Additional District Judge that the agreement executed by Maluk Singh on behalf of the defendants cannot per se bind the other defendants who are not signatories to the agreement and so the judgment and decree of the Additional District Judge is liable to be modified on this ground. This submission needs to be examined in the context of case set up by the defendants. As per stand in the written statement, defendants merely denied the execution of agreement as set up the plaintiffs. This specific plea that such an agreement entered into on behalf of the remaining defendants by Maluk Singh was not taken up and the thus there was no issue before the Courts. This being the position, the appellants cannot set up a new plea at this stage.

The matter needs to be examined from another angle. In the present case, parties were partners in a joint venture under the name and style of M/s Manku Foundry Works. On the dissolution of partnership, there was dispute about the partitioning of machinery between the partners and so the same was referred to arbitration of two arbitrators, namely, Shankar Dass and Tara Singh. The arbitrators divided the assets between the partners in pursuance to which a writing came into existence vide which Maluk Singh agreed to pay in case a sum of Rs. 3,500/- on Account of difference in value of assets shared by the respective parties. As regards the ''Kapas Belni'', the defendants have, in fact, admitted that the same was kept joint but being put to use by them alone. It is for this reason that the additional District Judge relied upon the agreement duly executed between the two set of partners in decreeing the claim of the plaintiff. Thus, finding is based on legal evidence and is not vitiated in any manner. Finding no merit in this appeal, the same is consequently dismissed. No costs.