Case: Hari Singh Darbar Vs. Mahant Vaishnavadas Guru Mahant Rajarangadas

3. The plaintiff is a banker and money lender and the defendant is a merchant. Early in October, 1949, the appellant who was building a cinema house and wanted to equip the same with necessary furniture and machinery for the purpose of conducting cinema shows, approached the respondent for a loan to enable him to complete the work. The respondent agreed to give a loan up to Rs.Accordingly from October 4, 1949 to September 20, 1950 on different dates he advanced various amounts totaling Rs.Details of the dates and the amounts so advanced were all given in the schedule to the plaint. In particular, according to the plaintiff, he lent Rs. 900/on September 26, 1950. No repayments had been made by the defendant in spite of demands. Accordingly, the suit was instituted for the recovery of the amount, mentioned earlier.4. The defendant in his written statement dated June 30, 1953 pleaded as follows: He admitted having taken a loan of Rs.but denied having received Rs. 900/on September 26, 1950 as alleged by the plaintiff. He pleaded that a partnership had been entered into between himself, the plaintiff and one Shambhu Dayal Shukla on October 4, 1949. He referred to some of the clauses in the partnership deed, particularly Cl. 10. The partnership was for the purpose of exhibiting cinema films in the building concerned. The partnership was to pay rent for his building at Rs.According to the terms of the partnership deed the plaintiff was to appropriate towards the loan the share of profits of the defendant in the partnership as well as the monthly rent payable by the partnership to him. The partnership continued till March 22, 1953 and no accounts of the partnership had been taken. Therefore, it was impossible to determine the profits that have accrued to his share as well as the credit that should have been made in his favour to respect of the rent of the building. Taking into account his share of profits and the rents payable to him, the plaintiffs claim should be deemed to have been fully satisfied. The loan was advanced by the plaintiff to the defendant as a partner under the partnership deed and as the loan has to be adjusted in the manner referred to in the said deed, the suit for recovery of the loan is not maintainable. In any event, as the correct picture regarding the credit of the share of profit and the rent due to the defendant will be available only on accounts being taken, the plaintiffs remedy was to file a suit for dissolution of partnership and for taking accounts. The amount of interest claimed by the plaintiff was erroneous and the correct amount would be only Rs. 3098/14/9.5. The plaintiff filed on September 25, 1953 an application for the amendment of the plaint. The amendment sought was for introducing an averment to the effect that the amount sued upon was loan advanced to the defendant and that it had nothing to do with the partnership. Clause 10 of the partnership agreement only indicated one made by which the plaintiff was enabled to recover his dues. As the partnership business was running at a loss, there was no question of the defendant having got any profits as and for his share and no credits have been made for rent. It is seen that the Court by its order dated November 28, 1953 permitted this amendment to be carried out in the plaint.6. The defendant in turn applied for amendment of the written statement on April 16, 1956. He wanted to amend the written statement in two respects: (1) by pleading that the moneys advanced from time to time by the plaintiff belonged to Dudhadhari Math of which the plaintiff was the sole Mahant and hence he was not entitled to file the suit and (2) that the said Math was a Public Religious Endowment and it not having been registered under the Madhya Pradesh Public Trusts Act, 1951 (Act 30 of 1951) the suit is barred under Section 32 of the said Act.7. The plaintiff opposed the amendment asked for but it is seen that on May 2, 1956 the written statement has been permitted to be amended only to the effect that the amount advanced belonged to the Math of which the plaintiff is the Mahant and the latter is not entitled to maintain the suit. This has been incorporated in Paragraph 13 of the written statement.

Reasoning:
15. A perusal of the partnership deed clearly shows that the partnership is only for the purpose of running and exhibiting cinema films, but that object could not be achieved unless the defendant has completed the building which be was constructing and installed the necessary machinery etc. It is for the purpose of enabling the defendant to complete the construction of the building and to equip it so as to enable the partnership to conduct film shows, that the plaintiff has agreed to advance the amount as loan to the defendant. There is no indication in Ex. P. 1 that the plaintiff was advancing those amounts as partner to the defendant as a partner. The loan transaction is a purely personal one between the plaintiff and the defendant. That the partnership has no interest in the building and the machinery etc. is made clear in the recitals in Ex. P. 1 that the defendant continues to be and will continue to be the owner of those10, in our opinion, and as rightly pointed out by the High Court, is only a provision to enable the plaintiff to recover his dues from the defendant and it indicates the made in which it may be so recovered or adjusted. The significant expression used in clause 10, namely, the share of profit accruing to the defendant in the partnership and the rent paid to him for the building per month by the partnership clearly shows that the plaintiff will be able to adjust towards his dues only if the partnership has earned profits in which the defendant had a share and if the partnership had credited the defendant with the rent. If no profit accrued to the partnership, there is no question of any share of the defendant in the profits being available for adjustment by the plaintiff. Similarly, unless it is borne out from the evidence that the defendant was credited with the rent due in respect of the bulling by the partnership, that amount again would not have been available to the plaintiff for adjustment towards the defendants liability. That is all the purpose that is sought to be served by clause 10. It does not, in any manner, bar the plaintiff from filing a suit for recovery of the amount due to him, unless the defendant is able to establish that the amounts were available either from the credits made in his favour towards rent or from his share of the profits or fromobservation clearly shows that the defendant did not attack the finding recorded against him under issue No. 2. Again in the concluding part of its judgment in paragraph 18, the High Court says that there is no dispute between the parties with regard to the quantum of the principal amount being Rs. 46,900/and the amount of interest upto the date of suit being Rs.The High Court has further stated that the findings of the trial court in favour of the plaintiff were not challenged before them. The finding of the trial court under issue No. 2, as well as the finding recorded by the High Court referred to above, clearly show that the plea of the defendant that he did not receive the sum of Rs. 900/on September 26, 1950 has been rejected, specially when he has not raised an dispute before the High Court, it is no longer open to the appellants revive the dispute regarding this amount before this Court. The second contention will also standhave already referred to the application made by the defendant for amending the written statement in this regard and the limited permission given foramending the writtenit is not open to the appellant to raise the contention regarding the bar of S. 32 of the Madhya Pradesh Public Trusts Act, 1951. This contention also standis not necessary for us even to express any opinion whether the plaintiff has or has not complied with any of the provisions of the Act as such an investigation, in our opinion, is totally unnecessary for the reason mentioned above. All the contentions urged on behalf of the appellant have to beare not inclined to accede to this request. We find from a reference to the judgment of the High Court that a similar request was made by the appellant. It is also seen that the appellant was not prepared to create a charge on the building or the cinema house or other property to ensure payment of the decretal amount. In view of this the High Court rejected the request of the appellant for staying the execution of the decree. Therefore, we cannot entertain any further request in this regard, again, by the appellant.