Judgment.- This is a second appeal against the decree and judgment of the learned Subordinate Judge of Kumbakonam, modifying those of the learned District Munsiff of Valangiman at Kumbakonam in O.S. No. 139 of 1945. The first respondent filed the suit for accounts of a dissolved partnership. A preliminary decree was made on the 10th July, 1946, holding that the partnership was dissolved on 15th September, 1944, and that the accounts of the partnership should be taken from 3rd February, 1943 to 15th September, 1944. Subsequent to the decree, a Commissioner had been appointed and he submitted a report. Various objections were taken to the Commissioner’s report by both the parties. It is not necessary to consider all the objections raised, as we are concerned in the second appeal only with four of such objections. The first objection is that the learned Subordinate Judge was wrong in disallowing compensation for collections made by the defendants. The Commissioner in his report stated that the defendants should be given 1 1/2per cent. of the collections as charges. The learned District Munsiff held that the defendants did not incur any expenses in regard to the collections and, therefore, they are not entitled to any collection charges. With this view, the learned Subordinate Judge agreed. Mr. Gopalaswami Aiyangar contended that the defendants had taken a grave risk in supplying goods to old constituents who owed sums to the partnership business, and that they did so only because they felt that that was the only method by which they could collect the amounts. He further stated that by so doing in effect, the defendants credited the amounts subsequently paid by the constituents against earlier debts, with the result that the debtors of the partnership business became their own debtors. But there is the other side of the picture. It is not suggested nor is there any evidence in the case, that the constituents were in involved circumstances and that the debts and outstandings would have to be written off. Instead, there is no evidence in this case to establish that the defendants, because of the course adopted by them, lost any money on that account. The defendants, who continued the business, necessarily would not give up the earlier constituents. The continuance of the business and its property would depend upon their keeping earlier constituents and carrying on the business with them.
The defendants, who continued the business, necessarily would not give up the earlier constituents. The continuance of the business and its property would depend upon their keeping earlier constituents and carrying on the business with them. In the circumstances of the case, what the defendants did was really to their advantage. The business they were carrying on in partnership with the plaintiff, they continued. There is also no evidence in the case to prove that the defendants had spent any additional amounts for the purpose of collecting the amounts due to the partnership before the plaintiff left it. In the circumstances, I agree with the Court below that there is no justification for giving compensation towards the alleged charges incurred’ by the defendants. The second objection relates to interest. The District Munsiff as well as the Subordinate Judge awarded interest from the date of the plaint. Learned counsel contended that the ordinary principle is that in a case of dissolution of partnership, the partners will be entitled to interest only from the date when the amounts due from the one to the other is ascertained. In support of his contention, he relied upon a decision of the Judicial Committee in Suleman v. Abdul Latif1. There their Lordships ruled that the decree in a suit for dissolution of partnership and accounts should provide for payment of the interest on the amount due only from the date of the final decree by which the amount (if any) is found due and not from the date of the plaint. Satyanarayana Rao, J., applied that principle in Palla Veerasami v. Bandaru Chitti Naidu2. There, the plaintiff filed the suit for dissolution of an existing partnership and for accounts. The learned Judge held that he was entitled to interest on the amount decreed only from the date of the final decree and not from the date of the plaint. The Privy Council distinguished their own decision Suleman v. Abdul Latiff1in Lala Hakim Rai v. Lala Gangarai3. In that case the suit was brought nearly two years after the dissolution of the partnership against a former managing partner, who had been retaining in his hands and for his own purposes, the assets of the firm, without accounting for them or their proceeds to his partner.
In that case the suit was brought nearly two years after the dissolution of the partnership against a former managing partner, who had been retaining in his hands and for his own purposes, the assets of the firm, without accounting for them or their proceeds to his partner. The Privy Council held that, in the circumstances, interest is properly chargeable against the accounting defendant, even though he has not acted fraudulently. They awarded interest to the plaintiff from the date of the plaint until realisation. When Suleman v. Abdul Latif1, was cited, the Privy Council distinguished that case on the following ground: “But that case was concerned with an ordinary suit for the dissolution and the winding up of the affairs of a going partnership. The present case is widely different. It is a suit brought nearly two years after the dissolution of the partnership against the former managing partner, who has been retaining in his hands and for his own purposes assets of the firm without accounting for them or their proceeds to his co-partner. In such a case interest is properly chargeable against the accounting defendant even though he has not acted fraudulently.” It is therefore, clear that though the ordinary rule in a suit for dissolution of partnership is to award interest only from the date when the amount due from the one to the other is ascertained, in a case where the suit is for an account in respect of a dissolved partnership, interest may be given even from the date of the filing of the plaint, if the circumstances in that case establish that the other partner was in possession of the assets or utilised them for the purpose of his business or was otherwise guilty of laches. In the present case, the learned Subordinate Judge found on the evidence that “though the partnership was dissolved on 15th September, 1944, the appellants did not take any steps to collect the outstanding or to pay off whatever was due to the plaintiff. Instead, they continued carrying on the business ignoring the severance of the plaintiff and took up an attitude even when the suit was filed which was absolutely unhelpful to the plaintiff.” On the aforesaid ground, the learned Subordinate Judge agreed with the learned District Munsiff that interest should be awarded from the date of the plaint.
Instead, they continued carrying on the business ignoring the severance of the plaintiff and took up an attitude even when the suit was filed which was absolutely unhelpful to the plaintiff.” On the aforesaid ground, the learned Subordinate Judge agreed with the learned District Munsiff that interest should be awarded from the date of the plaint. I cannot say that the direction of the learned Judge is inconsistent or otherwise contrary to the principle recognised in Lala Hakim Rai v. Lala Gangarai1. In my view interest has rightly been awarded to the plaintiff. The next objection relates to a sum of Rs. 332-4-6. It appears that this amount was due to the first defendant from the plaintiff in respect of their dealings prior to the starting of the suit business. Learned counsel for the appellants contended that this item is an item in the partnership accounts and, therefore, the Court should have allowed this item in his favour. But a scrutiny of the accounts discloses that this item was not brought into the partnership accounts at all. Ex. D-1 dated 12th April, 1943, is an-account of the plaintiff in the personal account of the first defendant. This amount finds a place in that account. That item was brought into the partnership account only under Ex. P-6, dated 21st May 1945. It was held that the partnership was dissolved on 15th September, 1944. This item therefore obviously cannot form an item in the accounting between the partners. The last objection relates to costs. Learned counsel contended that costs of the parties should have been directed to come out of the partnership assets and that the lower Court was wrong in directing the appellants to pay the costs of the plaintiff The learned Judge gave sufficient and valid reasons for awarding costs in the manner he did. He followed the correct principle and directed the appellants to pay the costs because in his view the appellants took up a hostile and unhelpful attitude, and even stated that the plaintiff could not maintain the suit. It is well settled law that the appellate Court will not interfere with an order of costs, unless the order of the Subordinate Court is contrary to any well recognised principle of law. In the circumstances, I do not see any reason for interference in second appeal. The second appeal is dismissed with costs. No leave.
It is well settled law that the appellate Court will not interfere with an order of costs, unless the order of the Subordinate Court is contrary to any well recognised principle of law. In the circumstances, I do not see any reason for interference in second appeal. The second appeal is dismissed with costs. No leave. K.S. ----- Appeal dismissed.