Case: Narayanlal Bansilal Pittie Vs. Tarabai Motilal (Dead) By L.Rs

a claim could naturally have been made in the curse of the settlement. The conduct of Tarabai and the great delay in institution of the suit coupled with the absence of any documentary evidence which may even indirectly support the case plaintiffs raise great doubt upon the truth of the story set up in her plaint.19. for the plaintiffs said that Tarabai did not make a counter-claim in the Bombay suit for her dues in respect of the partnership because she was advised that under the Indian Limitation Act, 1908, applicable to the counter-claim filed in Bombay the claim for Rs. 93, 827-4-6 if made by Tarabai was barred. That contention may be technically correct, but there is no reason why a reference should not have been made in the written statement of the counter-claim that there was such a claim in respect of which Tarabai intended to take proceedings in the appropriate court where the claim may be within limitation. In any case, there is no reason for not insisting upon settlement of that claim when negotiations were held in respect of the claim made in the Bombay suit. On February 2, 1944, the suit was agreed to be settled and it was one of the terms that it should not be disposed of till the date of the second instalment. Tarabai would naturally have, if there was any truth in her claim, set up her claim at one or more of the various stages of the suit, but that was to done.20. Counsel for the plaintiffs submitted that Pittie did not enter the witness-box to deny the claim made in the plaint and he examined no witnesses in support of his defence nor did he produce his books of account to support his case. Counsel urged that even on the case of Pittie the partnership had earned in the first two years profit and in respect of that profit no claim was made by Pittie at any time. That conduct according to counsel for the plaintiffs supports Tarabais claim that the profit was wiped out be the losses suffered by the partnership in the later three years. On behalf of Pittie it is urged that he could not give evidence due to ill health. Pittie had applied before the Trial Court that he be examined on commission, because he had suffered a coronary attack. The application made by him at the trial was rejected by the Civil Judge. In his application, dated April 18, 1961, Pittie stated that his case was fixed on April 18, 1961, for evidence of the parties and the parties were ordered to call for their witnesses and keep them present on that date, but Tarabai had not called any witnesses and it was therefore difficult for him to consider whether he was required to tender any rebuttal evidence since the burden of proof was wholly on Tarabai. He further stated that he desired to give evidence in Court, but as he was "sick and bedridden since last three months and was under the treatment of doctors" he was not in a position to undergo journey from Bombay to Aurangabad, and he prayed that he should be examined on commission. The application was supported by a "certificate" of a leading physician in Bombay who stated that Pittie "was under treatment for heart and blood pressure and for the sake of his health he had been advised to stay in Bombay for 2 months for rest and treatment". The application filed by Pittie was rejected by the Court.21. On November 21, 1962, when the case was on board for hearing before the Court, Pittie applied for an adjournment on the ground that as his nephew Madanlal, son of Govindlal, had died a few days before that date at Bombay, he could not come to Aurangabad from Bombay to give evidence and he therefore prayed that the case may be adjourned for three weeks. The application was supported by a letter addressed by Pittie to his lawyer. This application was rejected by the Court and the case was heard. We do not think that Pitties absence from the witness-box was deliberate. He was unable on account of circumstances beyond his control to remain present in the Court to be examined.22. The contention that Pittie had not produced his books of account is not accurate. The lawyer for the plaintiffs was giver an opportunity to inspect Pitties books, under the order of the Court. It is true that the inspection was restricted to the question whether Pittie was between 1930 and 1945 in the Hyderabad State. The order related primarily to the bar of limitation pleaded by Pittie. The books of account were inspected by the plaintiffs and were available in Court. It is not the case of the plaintiffs that there was any Khata in the books of account of Pittie which related to the partnership account.23. It is true that an amount of Rs. 32, 000/- odd was the profit of partnership earned during the first two Samvat Years 1982 and 1983 approximately an amount of Rs. 12, 000/- was earned by Pittie. There is no clear evidence on record why Pittie did not make a demand. But from this circumstance alone, we are unable to infer that the partnership was continued after Samvat year 1983 and the profit payable to Pittie for the first two years was set off against the losses suffered by the partnership in the subsequent three years.24. We have carefully considered the evidence on the record and we are of the view that the High Court was in error in holding that the settlement alleged between Tarabai and Pittie in November, 1927, in which Pittie agreed to continue to remain a partner in the business of the Jalna firm to the extent to which it related to the business in cotton, cotton-seed and cotton bales and that he agreed to pay in November, 1930, Rs. 93, 827-4-6 is not proved.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. A clinching circumstance is that Tarabai made no claim, when the parties negotiated a settlement of the suit filed by Pittie on the mutual, open and current account and paid the amount settled in two instalments without demanding that her claim against Pittie may be given credit for. If there was truth in the story of Tarabai and Pittie had agreed to pay Rs. 93,with interest, such a claim could naturally have been made in the curse of the settlement. The conduct of Tarabai and the great delay in institution of the suit coupled with the absence of any documentary evidence which may even indirectly support the case plaintiffs raise great doubt upon the truth of the story set up in her plaint.for the plaintiffs said that Tarabai did not make ain the Bombay suit for her dues in respect of the partnership because she was advised that under the Indian Limitation Act, 1908, applicable to thefiled in Bombay the claim for Rs. 93,f made by Tarabai was barred.That contention may be technically correct, but there is no reason why a reference should not have been made in the written statement of thethat there was such a claim in respect of which Tarabai intended to take proceedings in the appropriate court where the claim may be within limitation. In any case, there is no reason for not insisting upon settlement of that claim when negotiations were held in respect of the claim made in the Bombay suit. On February 2, 1944, the suit was agreed to be settled and it was one of the terms that it should not be disposed of till the date of the second instalment. Tarabai would naturally have, if there was any truth in her claim, set up her claim at one or more of the various stages of the suit, but that was to done.The contention that Pittie had not produced his books of account is not accurate. The lawyer for the plaintiffs was giver an opportunity to inspect Pitties books, under the order of the Court. It is true that the inspection was restricted to the question whether Pittie was between 1930 and 1945 in the Hyderabad State. The order related primarily to the bar of limitation pleaded by Pittie. The books of account were inspected by the plaintiffs and were available in Court. It is not the case of the plaintiffs that there was any Khata in the books of account of Pittie which related to the partnership account.23. It is true that an amount of Rs. 32, 000/odd was the profit of partnership earned during the first two Samvat Years 1982 and 1983  approximately an amount of Rs. 12, 000/was earned by Pittie. There is no clear evidence on record why Pittie did not make a demand. But from this circumstance alone, we are unable to infer that the partnership was continued after Samvat year 1983 and the profit payable to Pittie for the first two years was set off against the losses suffered by the partnership in the subsequent three years.24. We have carefully considered the evidence on the record and we are of the view that the High Court was in error in holding that the settlement alleged between Tarabai and Pittie in November, 1927, in which Pittie agreed to continue to remain a partner in the business of the Jalna firm to the extent to which it related to the business in cotton,and cotton bales and that he agreed to pay in November, 1930, Rs. 93,is not proved.