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1962 DIGILAW 226 (KER)

Poulose v. Ollur St Joseph Union Tile Works And Sons

1962-08-06

S.VELU PILLAI

body1962
JUDGMENT S. Velu Pillai, J. 1. The plaintiff was a partner in a firm called the Ollur St. Joseph's Union Tile Works and had assigned his interest in it. He sued the defendants who are the other partners for the realisation of a sum of Rs. 417-10-5 and interest thereon, being the amount of dividend and sitting fees to which he was entitled before the assignment. The defendants admitted the amount by way of dividend and sitting fees and pleaded that it was adjusted towards the plaintiff's liability to the firm on other accounts. This plea was negatived by the Trial Court and was not pressed in appeal. The defendants had also pleaded limitation as a bar to the suit. The Trial Court applied Article 120 of the Indian Limitation Act and held in I favour of the plaintiff, but in appeal by the defendants, the Subordinate Judge considered that though the six years' period of limitation may be applicable to the claim for dividend, there was no proof as to the exact amount of the dividend, the amount sued for being inclusive of sitting fees as to which different considerations might apply. The suit was dismissed. 2. In this second appeal by the plaintiff, the first point to consider is whether the six years' period is applicable to the entire claim. The dividend accrued is in the nature of a debt and on this ground the Madras High Court in Rama Seshayya v. T. Cotton Press (AIR 1926 Madras 615) held that Article 120 would apply. But sitting fee cannot be treated as a debt. The exact nature of the claim for sitting fee can be understood only with reference to the agreement of partnership, in the absence of other materials. No accepted definition of the term "sitting fee" has been brought to my notice, and all that is possible to say is that it might well fall within the scope of Article 102 of the Indian Limitation Act, under which as held by the Federal Court in Punjab Province v. Tara Chand (AIR 1947 F. C. 23) the term "wages" has to be given an extended meaning, as covering all claims for wages, pay or salary, not otherwise expressly provided for in any other Article. Wages are not restricted to remuneration for physical or muscular labour. 3. Wages are not restricted to remuneration for physical or muscular labour. 3. Therefore the plaintiff is confronted with the difficulty, that while the claim for dividend is not barred, the amount of the dividend is not ascertainable and the claim for sitting fees has not been shown to be within time. The statement of D. W. 3 that the entry in the account book of a particular date for Rs. 2/- relates to sitting fee, does not apply to the other entries as to which he had nothing to say. It is not permissible to hold that the entire balance is dividend. 4. The defendants had no duty to produce the account books and registers of the firm without being called upon to do so. They had admitted the amount of the claim, the plea being that it was adjusted. According to them, the whole claim was barred. The plaintiff did not make any distinction between dividend and sitting fee in the Trial Court. In Hiralal v. Badkulal (AIR 1953 S. C. 225) relied on, the defendant denied the correctness of the amount and he was held bound to produce account books to prove the correctness of his amount. That case is distinguishable. 5. The last prayer, for remanding the case to the Trial Court for ascertaining the amount of the dividend and for production of the agreement of partnership cannot be entertained at this late stage. The decree under appeal is affirmed, but in the circumstances I do not order