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1977 DIGILAW 73 (MP)

Somani Brothers v. Nandram

1977-03-08

P.D.MULYE

body1977
Short Note : 1. The short facts giving rise to this application are that M/s. Somani Brothers is a registered partnership firm carrying on its business in khali karasiya which came into existence on 22-10-68. Previous to this, the partners of the plaintiff-firm, along with one Bapulal, were carrying on business in the name and style of Messrs Bapulal Ramchandra which was a registered partnership firm. That firm was dissolved on 21-10-1968 and the present new firm M/s Somani Brothers came into existence on 22-10-1968. 2. The assets and liabilities of the previous firm Bapulal Ramchandra were taken over by the present firm However according to the plaintiff, the defendants opened a Khata with the firm Bapulal Ramchandra and, thereafter with the plaintiff firm and purchased goods from time to time on credit. But as they failed to pay the outstanding balance, the plaintiff had to file the present suit for its recovery. Held: The only question, therefore involved, in this revision petition is whether the learned trial Court was justified in dismissing the plaintiff's suit. 3. It has been held in Virbhandas v. Dasumal, AIR 1939 Sind 288, that the definition of transfer of property is sufficiently wide to cover cases in which on dissolution of a partnership certain partners are paid off and in return give up or assign their interest in the assets of the partnership. An arrangement by those partners that remaining partners are to be entitled to the debt due to the firm is an arrangement amounting to a transfer of an actionable claim, as defined in section 3 of the Transfer at Property Act and under section 130 such transfer can be made only by a writing signed by the other partners. 4. Similarly, it has been held in Takhatmal v. Bharat Nidhi Ltd. 1962 JLJ 957, that section 130 of the Transfer of Property Act, does not prescribe any particular form to effect an assignment. What is essential is that the words used in the instrument of transfer must clearly indicate the transferor's intention to transfer the claim due to him to the transferee. In order, therefore, that an instrument, purporting to be an instrument of assignment, should operate as such, it is essential that the language used must show that the right and the title of the transferor to the debt have been transferred. 5. In order, therefore, that an instrument, purporting to be an instrument of assignment, should operate as such, it is essential that the language used must show that the right and the title of the transferor to the debt have been transferred. 5. In the present case, though the previous firm M/s. Babulal Ramchandra was dissolved and its assets and liabilities were taken over by M/s. Somani Brothers, and initially notice was given to the defendants on 13-4-70 on behalf of M/s. Somani Brothers, but, subsequently, for the same amount another notice Ex. D-2 dated 12-7-71 has been given on behalf of the dissolved firm Babulal Ramchandra. That apart, Ex. P-3, on which reliance was placed by the plaintiff, is a deed of partnership of the new firm M/s. Somani Brothers. But Bapulal, the sole retiring partner of the old firm has not been examined in the present case to prove the alleged assignment. AIR 1964 All. 15 distinguished. AIR 1939 Sind 288 & 1962 JLJ 957, relied on. Revision dismissed.