sa299-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.299 of 2010 Prakash Narhari Gowardhan ..Appellant V/s. Narhari Govind Gowardhan, deceased His Lrs. ..Respondents Mr.Sanjay D.Thodake, for appellant. Mr.A.B.Tajane, for respondent No.1F. CORAM : R.G.KETKAR, J. DATE : 7th July, 2010 P.C. This appeal is preferred by the original plaintiff challenging the judgment and decree dated 13 th July, 2009 passed by the Ad-hoc District Judge-3, Solapur in Civil Appeal No.176 of 2002 arising from the judgment and decree dated 20 th February, 2002 passed by the 2 nd Jt. Civil Judge, Senior Division, Solapur in RCS No.1862 of 2002. By these judgments, the suit instituted by the appellant was dismissed and the counter claim of Rs.48,296.65 made by the respondents-original defendants was decreed along with future interest at the rate of 12% per annum from the date of filing of suit till the actual realisation. The parties will hereinafter be referred as per their original status in the trial. sa299-10.sxw 2] Plaintiff instituted suit for recovery of Rs.76,900.58 ps from defendants. It is the case of plaintiff that the firm namely M/s.Narhari Govind Govardhan was a registered partnership firm. The said firm started its business on 28 th January, 1980 and was engaged in purchase and sale of gold and silver. The said firm was also accepting deposits on interest payable to the depositors. One of the partners of the said firm namely Umakant retired from 24 th October, 1984 and to that effect, retirement deed was executed. Lateron, defendants and plaintiff’s brothers Bhagwan and Manik became partners. Subsequently, on 10 th October, 1988, the said firm came to be dissolved and, to that effect, a deed of dissolution was executed on 18 th November, 1988. The head office of the firm was at Vairag and its branch office was at Barshi. Till 1988, defendants were looking after the business at Vairag and the business at Barshi was looked after by plaintiff Prakash under the supervision of defendants. While the business was in progress, two accounts were opened in the name of defendants, one account was of gold and another was independent account. Since defendants were looking after the business at Vairag, they were maintaining its account including daily cash book. On 31 st March, 1990 all the accounts and amounts of business at Vairag came to be transferred at the head office at Barshi. After the firm was dissolved from 13 th January, 1985, plaintiff was having account books of the said firm. Since defendants received the amounts from time to time, they are liable to pay the interest to plaintiff at the rate of 12 per cent per annum as per the agreement. Defendants are liable to pay Rs.2,30,214.90 to plaintiff along with interest for the period from 1 st April, 1990 to 21 st February, 1991 namely Rs.24,438.11 ps. Thus, in aggregate, defendants are liable to pay sa299-10.sxw amount of Rs.2,54,963.10 ps. As per accounts of gold and silver of both branches, as of 31 st March, 1990, defendants have credit of Rs.1,60,778.78 ps. They are also entitled to interest at the rate of 12 per cent per annum amounting to Rs.17,283.74 ps. Thus, the total amount comes to Rs.1,78,065.52 ps. After deducting this amount from the amounts due from defendants to plaintiff, the balance amount of Rs.76,958/- is recoverable to the plaintiff (Rs.2,54,963.10 – Rs.1,78,065.52). It is the case of plaintiff that on 10 th February, 1991 when plaintiff asked the defendants for the recoverable amount, defendant asked plaintiff to withdraw the suit against Manik or else they would withdraw the amount due. On these among grounds, plaintiff instituted present suit. 3] Defendants resisted the suit by filing written statement as also filed counter claim. Defendant Narhari Govind Gowardhan filed written statement at exhibit 28 denying the contentions and averments made in the plaint. He also set up counter claim. It was contended that the business at Vairag was looked after by him at the instance of plaintiff and his brother Bhagwan. The business at Barshi was looked after by plaintiff and Bhagwan independently. The individual accounts of Narhari of gold sale as well as amount received by him after partition with his brother Chandrakant from which they ran money lending business under the name and style as M/s.Pandharinath Appaji Govardhan, was looked after by plaintiff and his brother Bhagwan. The ornaments of gold and silver as well as individual ornaments were in the custody of plaintiff. He also disputed the correctness of the accounts of business at Vairag maintained by defendants. According to defendant Narhari, amount of Rs.35,854.65 is due sa299-10.sxw from plaintiff together with interest at the rate of 12 per cent per annum which comes to Rs.12,442.00, and in all, amount of Rs.48,295.65 ps is due from plaintiff. Plaintiff filed written statement to this counter claim and denied the assertions made by defendant Narhari. Bhagwan filed written statement at exhibit 26 denying the claim made by plaintiff. It was also denied that the business at Vairag was looked after by defendants and the business at Barshi was looked after by plaintiff and Bhagwan. It was contended that plaintiff was alone looking after both the businesses and Bhagwan was nothing to do with those businesses. He further contended that he is not liable either of gold account or of individual account to pay amount to plaintiff. He further asserted that the suit is not within limitation. The learned trial Judge framed necessary issues and on the basis of the evidence on record, dismissed the suit instituted by plaintiff and allowed the counter claim. Against this decision, plaintiff preferred appeal which came to be dismissed. It is against this judgment, the present Second Appeal is preferred. 4] Mr.Thokade, learned counsel for the appellant, submitted that the agreement dated 18 th November, 1988 at exhibit 148 is not proved. Defendant No.1-C Bhagwan herein was also defendant in RCS No.212 of 1990. He filed written statement in RCS No.212 of 1990 wherein he denied the signature on the said agreement. He further submitted that, even otherwise, the counter claim made by defendant is barred by limitation and, therefore, the courts below committed error in dismissing his suit and allowing the counter claim. sa299-10.sxw 5] Mr.Tajane, learned counsel for the respondent no.1F, supported the impugned decree. He submitted that agreement dated 18 th November, 1948 exhibit 148 is duly proved not only by leading oral evidence of Bhagwan and Manik, but, also by examining hand writing expert. Apart from this, he submitted that the firm was dissolved by a deed of dissolution dated 18 th November, 1988 and the counter claim was made on 25 th September, 1991 and, therefore, the same is within limitation. 6] With the assistance of the learned counsel for the parties, I have gone through the record. In so far as the exhibit 148 agreement dated 18 th November, 1988 is concerned, Bhagwan deposed that it bears the signature of his father, Prakash and Manik. He further deposed that the plaintiff Prakash signed in his presence and its contents are true and correct. The other witness Manik also deposed to the same effect. The contentions raised by Mr.Thokade is that in the written statement filed in RCS No.212 of 1990, Bhagwan denied his signature and, therefore, it cannot be said that exhibit 148 is proved. Even keeping aside the evidence of Bhagwan, in my opinion, exhibit 148 is duly proved not only by evidence of Manik but also by the evidence of the hand writing expert. Saleem Khan was examined as PW 2 exhibit 176. It therefore cannot be said that the courts below either misred the evidence or their findings are based upon no evidence. 7] In so far as the contention that the counter claim is time barred, in my opinion, the court below rightly came to the conclusion that the firm was sa299-10.sxw dissolved by a deed of dissolution dated 18 th November, 1988 and the counter claim was filed on 25 th September, 1991. Therefore, it cannot be said that the counter claim was time barred. Taking over all view of the matter, I do not find any error committed by the courts below. Second Appeal does not raise any substantial question of law. Second Appeal is dismissed with no order as to the costs. In view of the dismissal of the appeal, no orders are necessary on Civil Application. Civil Application No.497 of 2010 stands disposed of with no order as to the costs. ( R.G.KETKAR, J. )