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Judgment
Ravi R. Tripathi, J.
1.0. The Appellant - original Plaintiff is before this Court being aggrieved by judgment and decree dated 29th April 1988 in Civil Suit No. 1091 of 1983, passed by the learned City Civil Judge, Court No. 6, Ahmedabad. The learned advocate for the Appellant - original Plaintiff submitted that the facts leading to the present First Appeal are set out in Para 2 of the judgment and decree. Para 2 is reproduced for the ready perusal:
The facts leading to the institution of the suit shortly stated are that the Plaintiff is a partnership firm registered under the provisions of the Indian Partnership Act; that Defendant No. 2 is the karta of Defendant No. 1 H.U.F. doing business in the name of Defendant No. 3 and all the Defendants are liable for the suit dues; that the Plaintiff has been doing the labour work of pressing the plywood on the wooden frames and thus, prepare the flush doors; that the Defendants got executed from the Plaintiff labour work for the bill dated 8.7.1982 being No. S 11 for Rs. 24,620.46 ps. And also bill No. S/12 dated 30.7.1982 for Rs. 5,301.02 ps. in all Rs. 29,921.48 ps. that the bills have been served to the Defendants which have been debited in the Defendants'' accounts in the Plaintiff''s books of account; that there is an agreement to charge interest @ 15% per annum printed in the bill itself; that Rs. 2296.26 ps. by way of interest upto 31.8.1983 @ 15% for which debit note dated 10.2.1983 has been sent to the Defendant by registered post which has not been replied to. Thus, the Plaintiff prays for the reliefs afore stated described more particularly in plaint para 8. The Defendants vide written statement exh.25 refuted the say of the Plaintiff inter alia contending that there is no direct privity of contract with this Plaintiff and that the suit being legally not maintainable is liable to be dismissed; that the Defendants had entered into an agreement with one Mr. Chaturbhai Patel to supply the wooden flush doors to the Defendants for their foreign customers; that said Chaturbhai was doing the business in the name and style of Gujarat Wood Works, C.M. Patel & Co. and Vishal Traders that is the Plaintiff; that the Defendant had placed order for flush doors to said Chaturbhai Patel and he was sending the bills in the name of his various firms and that the amounts paid by the Defendants were also credited in his various firms; that the Defendants had to supply the wooden flush doors to their customers in foreign country and hence Chaturbhai Patel & Vishal Traders were told that they should supply wooden articles strictly in conformity with the specifications supplied by their customers, on assurance being given by said Chaturbhai who was trading in the name of Vishal Traders; the Defendants, therefore, placed orders and gave specifications to Chaturbhai who used to send the bills some times in the name of Gujarat Wood Works, some times in the name of Vishal Traders and the payments were also made by the Defendants accordingly, that said Chaturbhai and/or Vishal Traders have not supplied the goods in accordance with the specifications supplied by the Defendants; on the contrary, the pattern and design were changed after the specifications were given; that the said defects only came to be known to the Defendants when their foreign customer inspected the material and detected the faults committed by the Plaintiff and when they rejected the goods supplied have never entrusted any work for pressing of flush doors to the Plaintiff; but it was Chaturbhai who was entrusted with the work of manufacturing and supplying the flush doors and that the bills in the name of various firms were for his tax purpose and/or for some convenience and/or other problems; that after the flush doors were rejected by the foreign customer, Chaturbhai Patel was called and informed about the rejection and the needful in the matter. However, after the death of Chaturbhai, his son had backed out from the commitment for the replacement of the material as stated by Chaturbhai. It has been contended that once the doors are pressed unless and until they are ripped open, it is not possible for the Defendants to detect any defect in the doors. Hence, the Defendants had to rely upon the honesty, integrity and sincerity of the Plaintiff. Thus, according to the Defendants, the flush doors supplied by the Plaintiff were defective and the same has been rejected by their customer at Kuwait and that the work is not as per the specifications and instructions given by the Defendants and the Plaintiff is, therefore, not entitled to demand the suit amount by way of labour charges. That the workmanship and performance of the material supplied were also defective; with the result the Defendants have lost their profit; that the Defendants have not only lost their profit but have even lost much more greater amount than even the price of the material supplied; that the bank guarantee has been invoked by their foreign customer and the Defendants have been put to great financial loss. In substance, the Defendants deny the liability to pay the suit claim and pray for the dismissal of the suit with costs.
2.0 The learned advocate for the Appellant - original Plaintiff submitted that the learned Judge was pleased to frame Issues vide exh. 26, which are narrated in Para 3 of the judgment and decree along with findings of those Issues in Para 4. The same are material and therefore, Paras 3 and 4 are also reproduced for the ready perusal:
From the pleadings on record, following issues have been framed vide exh. 26:
(1) Whether the Plaintiff is a registered partnership firm under the provisions of the Indian Partnership Act?
(2) Whether the suit in the present form is maintainable?
(3) Whether the Plaintiff proves that it executed labour work for the Defendant to the tune of Rs. 29,921.48 ps. on labour contract basis?
(4) Whether the Plaintiff is entitled to interest? If yes, at what rate?
(5) Whether the Defendants proves that the workmanship of the Plaintiff is of inferior quality?
(6) Whether the suit against the Defendants by the Plaintiff is maintainable?
(7) Whether the Defendants prove that there was composite contract with the Plaintiff for the supply of suit doors?
(7A) Whether the work executed by the Plaintiff is not as per the design, specifications and pattern as alleged? If yes, what is the effect?
(8) To what relief, if any, the Plaintiff is entitled to?
(9) What order and decree?
My findings on the above issues for the following reasons are as under:
(1) In the negative
(2) In the affirmative
(3) In the affirmative
(4) In the negative; does not arise
(5) In the negative
(6) In the affirmative
(7) In the affirmative
(7A) In the negative as not arising - second part does not survive
(8) As per the final order
(9) As per the final order
2.1 The learned advocate for the Appellant - original Plaintiff submitted that so far as findings recorded by the learned Judge are concerned, the same are in favour of the Plaintiff, except Issue No. 1, wherein, the Issue was to the effect that, ''whether the Plaintiff is a registered partnership firm under the provisions of the Indian Partnership Act'', which is answered in ''negative''.
2.2 The learned advocate for the Appellant - original Plaintiff vehemently submitted that the Court below has erred in appreciating the record of the case and has committed an error in recording the finding, which is contrary to the record. The learned advocate for the Appellant - original Plaintiff submitted that the Plaintiff, in support of its case, produced document at exh. 241. It is extract from the Register maintained by the Registrar of Partnership Firm (Form ''G'').
2.3 The learned advocate for the Appellant - original Plaintiff submitted that on account of some typographical error, an ambiguity crept in and it was causing serious prejudice to the Appellant - original Plaintiff and therefore, the Plaintiff produced another copy of the same Form ''G'' from the Register kept by the Registrar of Partnership Firm, at exh. 252. The learned advocate for the Appellant - original Plaintiff submitted that if the Court had perused these two documents with little more diligence, the error could have been avoided. In this regard, he made available the zerox copies of both these documents, which are the only material documents, required to be appreciated by this Court in this First Appeal. Copies of exhs. 241 and 252 are produced for perusal, which are taken on record.
2.4 The learned advocate for the Appellant - original Plaintiff submitted that after having answered Issue No. 1 in Negative, the Court ''non-suited'' the original Plaintiff - Appellant herein on the ground that the plaint filed by the present Appellant was signed by one Shri Niranjanbhai Chaturbhai Patel as a ''Partner'' of C.M. Patel and Co. and on the date of filing of suit i.e. 17th March 1983 said Shri Niranjanbhai was not a partner of the C. M. Patel and Co. and therefore, the suit of the Plaintiff has to fail.
2.5 The learned advocate for the Appellant - original Plaintiff invited attention of the Court firstly to the discussion about the Issue No. 1, whereby, the Court held that the Plaintiff is not a ''Registered Partnership Firm'' under the provisions of the Indian Partnership Act. This discussion is found in Paras 9, 10, and 11. The learned advocate for the Appellant - original Plaintiff submitted that on perusal of these three paragraphs it will be clear that inadvertent errors have crept in, in the matter of appreciation of the contents of exhs. 241 and 252. The learned advocate for the Appellant - original Plaintiff submitted that the documents, which are made available for perusal, if perused, it will be clear that:
Entry No. Date To the effect that EXHIBIT 241 2. 15.12.67 See Ent. 3 (1) Mahendra Manubhai Patel
(2) Minor Niranjan Chaturbhai who attains majority on 27.6.1968
(3) Minor Bipin Bhupendrabhai Patel who attains majority on 15.12.1977
Address of 1, 2 and 3 is Madhyam Varga Co. op. Housing Society, Kankaria, Ahmedabad have joined the firm as new partners on 3.11.67.
As per appl. Received on 4.12.67.
sd/- Registrar of Firms, Gujarat State, Ahmedabad.
3.
13.9.68
Niranjan Chaturbhai Patel attained majority on 27th day of June 1968 and have elected to become a partner in the above mentioned firm. As per appl. Received on 28.8.68.
sd/- Registrar of Firms, Gujarat State, Ahmedabad.
5.
12.10.83
As per party''s ''E'' appli. Received on 12.10.83 Shri Niranjan Chaturbhai Patel, Trustee of Shri Chaturbhai Bhikhubhai family Trust of Madhyam Varga Society, Gitamandir Road, A''bad has joined the firm as new partner on 15.1.1983.
b. Chaturbhai Bhikhubhai Patel has retired as partner of the firm w.e.f. 14.1.83.
sd/- Registrar of Firms, Ahmedabad City, Ahmedabad.
6.
15.11.84
(15-11-84)
As per party''s ''E'' appl.recd. on 15.11.84 Mahendrakumar Manubhai Patel, Niranjan Chaturbhai and Niranjan Chaturbhai, Trustee of Chatur Bhikhubhai family Trust have retired as partner of the firm w.e.f. 4.11.1983 (4-11-83)
sd/- Registrar of Firms, Ahmedabad City, Ahmedabad.
Entry No. Date To the effect that EXHIBIT 252 2. 15.12.67 See Ent. 3 (1) Mahendra Manubhai Patel
(2) Minor Niranjan Chaturbhai who attains majority on 27.6.1968
(3) Minor Bipin Bhupendrabhai Patel who attains majority on 15.12.1977
Address of 1, 2 and 3 is Madhyam Varga Co. op. Housing Society, Kankaria, Ahmedabad have joined the firm as new partners on 3.11.67.
As per appl. Received on 4.12.67.
sd/ Registrar of Firms, Gujarat State, Ahmedabad.
3.
13.9.68
Niranjan Chaturbhai Patel attained majority on 27th day of June 1968 and have elected to become a partner in the above mentioned firm. As per appl. Received on 28.8.68.
sd/- Registrar of Firms, Gujarat State, Ahmedabad.
5.
12.10.83
As per party''s ''E'' appli. Received on 12.10.83 Shri Niranjan Chaturbhai Patel, Trustee of Shri Chaturbhai Bhikhubhai family Trust of Madhyam Varga Society, Gitamandir Road, A''bad has joined the firm as new partner on 15.1.1983.
b. Chaturbhai Bhikhubhai Patel has retired as partner of the firm w.e.f. 14.1.83.
sd/- Registrar of Firms, Gujarat State, Ahmedabad.
6.
15.11.84
As per party''s ''E'' appl. recd. on 15.11.84 Mahendrakumar Manubhai Patel, Niranjan Chaturbhai and Niranjan Chaturbhai, Trustee of Chatur Bhikhubhai family Trust have retired as partner of the firm w.e.f. 4.11.1983.
sd/- Registrar of Firms, Gujarat State, Ahmedabad.
2.6 The learned advocate for the Appellant - original Plaintiff submitted that if Entry No. 3 is perused, it is dated 13th September 1968 and the gist of Entry is that, ''Niranjan Chaturbhai Patel, in his ''individual capacity'' became partner after attaining majority on 27th June 1968, as after attaining majority, he elected to be a partner in the said firm''.
2.7 The learned advocate for the Appellant - original Plaintiff submitted that, similarly, Entry No. 5 is dated 12th October 1983 and the gist of the Entry is that, ''on that day, Niranjan Chaturbhai Patel again became a partner but that was in the capacity of a ''Trustee'' of Shri Chaturbhai Bhikhubhai Patel family and the date of his becoming a partner in the capacity of a Trustee is 15th January 1983''.
2.8 The Entry No. 6 is most material according to the learned advocate for the Appellant - original Plaintiff. The learned advocate for the Appellant - original Plaintiff submitted that the Entry is dated ''15th November 1984''. Niranjan Chaturbhai Patel retired as a partner in both the capacities i.e. as an ''Individual'' and also as a ''Trustee'' of Chaturbhai Bhikhubhai family. What is important is the date of retirement, which is 4th November 1983. The learned advocate for the Appellant - original Plaintiff submitted that the entire confusion is created only because of a typographical error, whereby, the date typed was 4.11.1981, which is subsequently corrected to be 4.11.1983. As the learned Judge read the same to be the earlier one i.e. ''4.11.1981'', the Court answered Issue No. 1 in ''Negative'' and also continued carrying on the same impression and ''non-suited'' the Plaintiff on the ground that, ''on the date of filing of suit i.e. 17th March 1983, said Niranjan Chaturbhai Patel was not a parter'', as the Court took it that, he retired from the partnership on ''4.11.1981''.
2.9 The learned advocate for the Appellant - original Plaintiff, for that purpose, invited attention of the Court once again closely to both these documents i.e. exhs. 241 and 252.
3.0 Learned advocate Mr. Mehta, appearing for opponents, tried to dislodge the submissions made by the learned advocate for the Appellant - original Plaintiff. On perusal of these two documents viz. Exhs. 241 and 252, the scope of submissions of the learned advocate for the opponents was narrowed down. It was not possible for the learned advocate for the opponents, despite his best efforts, to dislodge the submissions made by the learned advocate for the Appellant - original Plaintiff. The fact that by Entry No. 2, it is recorded on 15th December 1967 that ''Niranjan Chaturbhai is a minor and he is to attain majority on 27th June 1968'', by Entry No. 3, dated 13th September 1968, it is specifically mentioned that ''on Niranjan Chaturbhai attaining majority on 27th June 1968, opted to be a partner in the said firm'', the confusion seems to have arisen only because in Entry No. 6, in Exh. 241, a typographical error had taken place, which was corrected by overwriting with counter signature of the person correcting the same. This confusion could have been avoided if the documents i.e. exhs. 241 and 252 were appreciated taking them together. In the opinion of this Court, once these two documents are perused, it is not possible to have any doubt whatsoever because, by Entry No. 5, same person was entered as a partner in the capacity of a ''Trustee'' of a family and by Entry No. 6, he retired in both his capacities, as a partner but the date of retirement is ''4.11.1983'' and not ''4.11.1981''. Once this fact is not dislodged, the finding recorded by the learned Judge is required to be reversed and Issue No. 1 is required to be answered in ''Affirmative''.
3.1 Coming to the question of ''non-suiting the Appellant'' - original Plaintiff on the ground that on the date of filing of the suit i.e. on ''17th March 1983'', Niranjan Chaturbhai was not a partner, also does not survive and therefore, the suit is required to be decreed. In the last paragraph i.e. Para 26, the learned Judge has observed as under:
In the result, the suit fails. Since the suit fails on the technical ground of the non-registration of the Plaintiff firm under the provisions of the Indian Partnership Act, I do not propose to saddle the Plaintiff with the cost of the suit and it would be in fitness of things to direct the parties to bear their own costs....
3.2 This observation will also stand altered because this Court has altered the finding recorded in response to Issue No. 1.
3.3 The learned advocate for the Appellant - original Plaintiff submitted that so far as interest part is concerned, the learned Judge has raised a specific Issue being Issue No. 4 but did not believe the case of the Appellant - original Plaintiff that there was an oral agreement between the parties and rate of interest was agreed at 15%. The learned advocate for the Appellant submitted that, therefore, the court answered Issue No. 4 in ''Negative'' and second part of Issue No. 4 by saying that, ''does not arise''.
3.4 The learned advocate for the Appellant - original Plaintiff submitted that it being a commercial transaction there being an oral agreement was required to be accepted by the learned Judge more so when the factum of the relationship of the parties was believed. The learned advocate submitted that there was no reason for not believing the agreement on the point of interest between the parties. The learned advocate for the Appellant - original Plaintiff submitted that it is a matter, of which, judicial notice can be taken that in commercial transactions, the parties do agree orally for rate of interest. The learned advocate for the Appellant submitted that an amount of Rs. 3,000/- is claimed by way of interest calculating the same at the rate of 15%. He requested that the opponents be directed to pay this amount with 15% interest.
3.5 The learned advocate for the opponents submitted that the Court has rightly not believed the oral agreement between the parties and has rightly answered the second part of Issue No. 4 by saying ''does not arise''.
3.6 Taking into consideration the rival submissions of the learned advocates for the parties, this Court deems it proper to take judicial notice of the fact that in commercial transactions, miscellaneous terms and conditions are agreed between them without reducing them in writing. In commercial transactions, ''interest'' is not an ''unknown thing'', which cannot be believed. Similarly, having an oral agreement for ''interest'' is not a strange thing for the commercial transactions and therefore, the claim of the Plaintiff for the interest is accepted. Once that is done, the question comes, as to what should be the rate of interest. Taking into consideration the fluctuations in the rate of interest for all these years, it is deemed fit that 9% be prescribed as rate of interest. The same shall be paid from the date of filing of the suit.
3.7 The learned advocate for the Appellant - original Plaintiff also submitted that against any of the finding recorded by the learned Judge, the opponents have not chosen to file any cross-objections and therefore, nothing further is required to be done and all those findings automatically stand approved by this Court.
4.0 The First Appeal is accordingly allowed with costs.