Kulathu Iyer Harihara Sivaramakrishna Iyer vs Annaswamy

The second pltf. who is the legal representative of the original pltf. is the applt. The suit was based upon a business relationship between the original pltf. & the deft, who was employed in his shop as a clerk for a number of years. In the plaint it was alleged that after the lapse of 18 years pltf. 1 took the deft, as a working patnr. in his business, the arrangement being that he was to get eight annas in the rupee out of the net profits of the business. The pltf. seems for have gone away to his native place in the Tinnevelly District after entrusting his retail shop in Trivandrum to the deft, in this manner. There was also a wholesale shop belonging to the pltf. which does not come within the scope of this litigation except incidentally. The prayer in the plaint was for return of moneys advanced & for accounts. It is unfortunate that in the course of. the trial everybody lost sight of the fact that is ''working partner" is not necessarily a patnr. in the business. He may be merely an employee under the capitalist patnr. although the working patnr. is to get a share in the net profits as remuneration for the services rendered by him. The learned trial Judge concentrated on the question whether the deft was a patnr. of the pltf. in the ordinary meaning of the term & reached the conclusion that he was not. The liability to account mentioned in the plaint was considered to be a question which depended solely upon the finding regarding the relationship between the pltf. & the deft, patnr. as understood by the learned trial Judge. The period during which the deft, was put in charge of the pltf''s. retail shop, according to the pltf. extended form 1-1-1096 to 17-7-1100. The suit was filed on 26-6 1103. On the finding that the legal relationship of patnrs. relied upon by the pltf. had not been established, the learned trial Judge reached the conclusion that the pltf. was not entitled to ask the deft to account for the transactions to carried on in the retail shop, of which he was in charge.

On behalf of the applt. stress is laid upon certain averments in the plaint which relate to the circumstances in which the deft, became liable to account & the learned Advocate General who appears for the applt. invites the attention of the Ct. to additional issue 9 which was raised in the course of the trial which is worded as follows:

"What is the amount, if any, that is due to the pltf. from the deft, on settlement of accounts?" It appears from the documents in this Case that this additional issue was specifically raised as the result of a petn. filed by the p1 of in the course of the trial before evidence was recorded This was C. M. P. No. 1614 of 1105. Notice was given on that petn. to the deft, before this additional issue was raised. The learned Advocate General on the strength of the averments in the plaint & the written statement which he has read in Ct. invites the attention of the Ct. to ground No. 13 in the grounds of appeal filed in this Ct. where he has stated as follows:

In any view the deft, is bound to account for shop goods & amounts received & the Ct. below wrongly refused to go into the extent of money & goods misappropriated & unaccounted for.

There was warrant for raising this as a specific ground of appeal in this Ct, in view of certain admissions made by the deft, in the course of his evidence. The deft, although he denied that he was pltf''s. patnr., did admit in his evidence that he had filed suits on behalf of the pltf. in respect of the retail business & obtained decrees. He had admitted in terms which are not very clear that he had advanced loans out of the moneys in the shop. It is argued on behalf of the resp. that this statement can only be understood as supplying goods on credit & not giving loans to outsiders. There is also a little confusion with regard to the exact value of the goods which were in the retail shop when the deft, was put in charge of the shop on 1-1-1096. According to the pltf. goods of the value of nearly Rs. 4196-6-6 were in the shop & during the relevant period already adverted to, other goods were supplied from the pltfs. wholesale shop to the deft, for carrying on business in the retail shop. The deft, seems to have made a statement in the course of his evidence about the value of the goods when the business was stopped as a result of illness of the deft. In view of this evidence, we are not prepared to accept the finding of the Ct. below that there was no liability on the part of the deft, to account for the dealings for which he was responsible. Although ho was not a patnr. in the technical sense of the term, he was liable to account to the pltf. in respect of some of the matters which are specifically admitted by him in his evidence. In the circumstances, we are constrained to Set aside the decree dismissing the suit & to remand the suit for disposal to the Ct. below with a direction that findings should be recorded on the following points & if as a result of these findings, the Ct. below is satisfied that the accounts must be scrutinized, a preliminary decree may be passed & a Comr. appointed for scrutinizing the accounts & reporting about the correct state of accounts between the parties. The parties shall not, however, be at liberty to adduce any fresh evidence. The case shall be disposed of on the evidence already on record. The points on which we want the Ct. below to record specific findings before disposing of the suit are the following:

Suits filed by the deft, on behalf of the pltf''s. business for collecting outstandings with special reference to the amounts realized from the debtors.

Loans, if any, granted by the deft, from out of the moneys belonging to the pltf. in the retail business to outsiders.

The value of the goods in the retail shop on 1-1-1096 when the deft, is alleged to have been put in charge of the business. How were those goods disposed of by the deft.

The pltf. undertakes to file a statement containing a list of all the items of goods supplied by him from his wholesale shop to the retail business. The Ct. below shall inquire into the question from the evidence on record as to whether these supplies were actually made & if so how these items were disposed of by the deft.

What was the value of the goods in the retail shop when the deft discontinued the business in that shop & how were they disposed of ?

On these five points, the Ct. below shall record findings on the basis of which the question hag to be decided as to whether the pltf. is entitled to a preliminary decree or not. The suit shall be disposed of on the basis of these findings as agreed to by the parties. Since this litigation has been going on for a very long time, the Ct. below shall give special precedence to it & since the points that are formulated above have to be decided on the evidence already on record, the matter shall be disposed of as expeditiously as possible, preferably before the commencement of the summer vacation. The coats of this appeal shall abide & follow the result & shall be provided for in the decree that will be passed by the trial Ct. The pltf. shall in the first instance be liable to pay the C. F. in respect of this appeal to the Govt.; but if he ultimately succeeds in the Ct. below, then suitable direction will lave to be made for making the deft responsible for the payment of this C. F. Return the records to the trial Ct. as expeditiously as possible.