P L D 1967 Dacca 35 (PLP)

HASAN J. This appeal is at the inst4nce of the defendant No.

2. The plaintiff‑Bank instituted the suit giving rise to this appeal for recovery of Rs. 1,79,924‑13‑3 with costs of the suit and subsequent interest at 6 percent per annum till realisation. The plaintiff's case in short is as follows. The plaintiff‑Bank is a banking Company registered under the Companies Act with its Principal Office in Pakistan at Dacca and branches at Choumuhani and several other places in East Pakistan. In a proceeding before the High Court an Advocate of this Court was appointed Special Officer and Receiver of the plaintiff‑Bank and as such he was managing the same since February, 1951. At sometime the High Court discharged the Special Officer and Receiver and appointed a Board of Directors, which is managing the business of the plaintiff Bank. Defendants Nos. 1 and 2 as partners used to carry on a joint business of jute, paddy and various other commodities at Chaumuhani under the name and style of firm Jogendra Kumar Majumdar Sachindra Kumar Saha. In order to facilitate the business, the defendants Nos. 1 and 2 opened a current account with the plaintiff‑Bank on 11th February 1943 under the name of "Jogendra Kumar Majumdar Account No. 1" and the said account bears No. 45 in the plaintiff's Account Ledger. The defendants Nos. 1 and 2 used to make deposit and withdrawal and up to 13th December 1943, had all along held a credit balance. In order to conduct the business of the Firm in a better way, the defendants Nos. 1 and 2 sometime in later part of 1943 applied for an overdraft accommodation in the aforesaid current account whereupon the second ‑ party defendant No. 5 who was then managing the plaintiff‑Bank allowed O. D. accommodation to the defendants Nos. 1 and 2 to the extent of 3J lacs. The said current account was thus overdrawn for the first time on 14‑12‑43, since then the defendants Nos. 1 and 2 had been overdrawing the account, the debit balance under account bearing an interest at 6 percent per annum. Subsequently this limit of overdraft accommodation was changed on an application of the defendants Nos. 1 and

2. The limit of the overdraft was raised to 5 lacs in November, 1944 which was reduced to Rs. 1 lacs in April 1945, under the Managing Director's (defendant No. 5) letter No. 872 dated 17‑4‑

45. The limit was again raised to 3 lacs under the said Managing Director's letter No. 1215 dated 15‑5‑45, which was further raised to Rs. 5 lacs in May 1947, and ultimately reduced again to Rs. 3 lacs in December 1948. The power of operating the Account was reserved to either of the defendant Nos. 1 and 2 till 13‑7‑47 when a special instruction was given to the Bank to the effect that the Account should thenceforth be countersigned by Ramani Moham Bhuya the defendant No. 3 who is a brother‑in‑law of the defendant No.

2. In December, 1950 on accounting the plaintiff‑Bank was found entitled to a sum of Rs. 1,74,487‑3‑6 from the defendants No. 1 and 2 as per the said account. A demand notice was sent from the bank to the defendant No. 1 on behalf of himself and his partner defendant No. 2 whereupon on behalf of himself and his partner defendant No. 2, the defendant No. 1 promised to pay by a letter dated 5th December 1950, the then outstanding debt found due under the said Account acknowledging their liability under that account and also offered Rs., 5,000 and handed over a demand draft No. A. M. 83086 dated 5th December 1950, for Rs. 5,000 upon the Imperial Bank of India, Dacca, in favour of the plaintiff which was realised and credited towards the balance, due from the defendants. Defendants Nos. 1 and 2 did not make any further payment after the 16th December 1950, and the plaintiff ‑Bank thereafter by a letter ‑dated 12th February 1951, demanded immediate payment of the amount which remained due till then but no heed was paid. As on several demands the money had not been paid, the plaintiff‑Bank was forced to institute the suit. Written statements were filed on behalf of the defendants Nos. 1, 2, 3 and

5. It was contended on behalf of the defendant No. 1 that the account in question was that of the Firm and not of the defendant No.

1. He also disclaimed any liability though he supported most of the allegations made in the plaint. Defendant No. 2 denied any liability and contended that for the account in suit defendant No. 2 was not liable; that there was no joint business as alleged by the plaintiff between the defendants Nos. 1 and 2 and that the suit was barred by limitation. Defendant No. 3 also filed a written statement denying all the allegations in the plaint and asserting that neither defendant No. 2 nor defendant No. 3 was liable but defendant No. 1 was liable for the transaction. Defendant No. 5 denied any liability though the plaintiff ‑made an allegation against the defendant No. 5 that the defendant No. 5 in collusion with other defendants allowed defendants Nos. 1 and 2 to withdraw a heavy sum of money without a cover of sufficient security and that a huge sum was taken from this Bank in Pakistan to Calcutta in order to deprive the plaintiff‑Bank. The parties led evidence in support of their respective cases and the learned Additional Subordinate Judge, Noakhali, on consideration and assessment of the evidence came to the finding that the account in suit was the account of the joint business of the defendants Nos. 1 and 2; that the suit was not barred by limitation and that the defendants Nos. 1 and 2 were liable. The learned Additional Subordinate Judge also made defendants Nos. 4 and 5 liable for the decretal dues as they were found guilty for defrauding the plaintiff‑Bank in collusion with the other defendants. Hence the appeal by the defendant No.

2. Other defendants have not preferred any appeal nor filed any cross‑ Mr. Bose, the learned Advocate for the appellant, has pressed only three grounds. The first is that there was no partnership business of defendants Nos. 1 and 2 at Choumuhani. The learned Additional Subordinate Judge on an elaborate and exhaustive discussion of the evidence had come to the finding that there was a partnership business. After going through the findings, the evidence and the records, we do not find any substantial materials to come to a different finding. At this stage we may observe that the learned Additional Subordinate Judge has taken great pains in ascertaining the issue in the subject‑matter and the judgment is well considered. So we accept the finding and as such we do not think it necessary to reiterate all the reasons and all the evidence adduced by the parties but only to show th t the contention of Mr. Bose is not correct, we propose to refer to some salient facts in the matter. Exh. A is the partnership deed. It was executed by the defendants Nos. 1 and 2 on 19th April 1946. There is a clear admission in the preamble admitting that the defendants Nos. 1 and 2 had a partnership business since the month of Asar, 1349 B. S. corresponding to June 1942, under the name and style of Jogendra Kumar Mazumdar and Sachindra Kumar Saha, at Calcutta, Noakhali and Choumuhani as Commission agents and dealers in kerosene oil, mustard oil, sugar, flour, etc. The state ment in paras. 1 and 2 of this document are also relevant in this connection as to show the above. Defendant No. 2 has deposed as defence witness No: 1 for defendant No. 2, as follows: "There was a partnership deed. It was 'executed in Calcutta. I signed that partnership deed. It, was kept in. the custody of the defendant

1. It was written in English . . . . . This is my signature in the partnership document." Witness No. 1 for the plaintiff has deposed that he is a Karmachari of the Nath Bank and was an accountant of the said Bank at the Choumuhani Branch; that he is posted at Dacca and he used to work at the Choumuhani Branch from 1944 to December, 1953 and that the partnership firm of the defendants Nos. 1 and 2 had its, branches at Calcutta and Chandpur. There is also some other evidence in support of the plaintiff's case that the defendants Nos. 1 and 2 had a partnership business at Choumuhani and we accordingly hold that there was a partnership business of the defendants 1 and 2 at Choumuhani and that was started in June 1942. , The second ground urged, by the learned Advocate for the appellant is that the account is not the account of the partnership but personal account of Jogendra Kumar Majumdar, defendant No.

1. In support it has been argued that Exh. 13 series will go to show that the account stands in the name of Jogendra Kumar Majumdar, namely, defendant No.

1. In those documents there is no mention of the name of the firm or that of the defendant No.

2. It is of course true that the account stands in the name of defendant No.

1. But it is the case of the defendant No. 1 which is also in evidence and originally defendant No. 1 had a current account with toe N1th Bank and subsequently when there was a current, account business entered into between defendants 1 and 2, in 1942, that account standing in the name of defendant No. 1 was treated by the parties as belonging to the partnership firm. The learned Additional Subordinate Judge after elaborate consideration of the matter had come to the finding that there was sufficient evidence to prove in support of the plaintiff's case that the account belonged to the firm and not to defendant No.

1. Witness No. 11 for the plaintiff has deposed that one current account was opened on behalf of the partnership business with the Nath Bank at Choumuhani; that there was an overdraft accommodation also; that that account was opened in the name of Jogendra Kumar Majumdar (defendant No. 1) for the partnership business of the defendants Nos. 1 and 2 though the same did not stand either in the name of joint business or in the name of defendants 1 and 2; that the defendants 1 and 2 had also another account with the Union Bank with regard to their partnership business, which stood in the name of Sachindra Kumar (defendant No. 2); that the amounts withdrawn from these two Banks were utilised for the partnership business and that the money of the partnership firm were deposited with the plaintiff Bank. Defendant No. 1 has also deposed in this case. He has deposed that there was an agreement between the defendants Nos. 1 and 2 that the separate accounts standing from before in the names of defendants 1 and 2 alone in the different Banks at Choumuhani will be utilised for and on behalf of the firm. Thereby he has also corroborated the evidence of witness No. 1 for the plaintiff. Now coming to the other evidence, we find that the defendant No. 2 was authorised by the defendant No. 1 to operate in the account in question, vide Exhs. 2 (b) and 2 (c). It. has not been disputed. There is also evidence coming from the plaintiff's side which has been admitted by the defendant No. 2 himself that some cheque books were handed over to him by the plaintiff Bank on the direction given by the defendant No. 1 to operate on the Bank account. It has also been admitted by the defendant No. 2 that he put in some money in the account in question and withdraw some money from the account in question. There is also sufficient evidence to show that the money withdrawn was utilised for the partnership firm. The learned Additional Subordinate Judge has elaborately dealt with the evidence; we have gone through the evidence and accept the finding of the learned Judge and we accordingly do not intend to mention specifically the evidence one by one. In this connection, it may be further pointed out that admittedly at some stage any cheque issued by the defendant No. 1 was to be countersigned by the defendant No.

3. The explanation from defendants Nos. 2 and 3 is that the defendant No. 3 was to countersign the defendant No. 1's cheque as he was his karmachari. This plea has been rightly rejected. In our opinion, this arrangement was only because the account in suit was the account of the firm; otherwise there could not have been any justification for defendant No. 3's countersigning the cheque drawn by the defendant No. 1 on the account in suit. Mr. Bose has argued in this connection that the finding of the learned Additional Subordinate Judge is based on inadmissible evidence namely, Exh. B series. We are of opinion that the documents cannot go into evidence but barring this evidence there is other sufficient evidence for the finding that the account was used, utilised and operated for the benefit of the firm and accordingly we find that it belonged to the firm. A legal objection has been taken by the learned Advocate for the appellant relying on the provision of sections 19, 20 and 22 of the Partnership Act. It has been contended that there is a legal bar for opening an account for the partnership business in the name of one of the partners and in support he has also relied on some decisions. We do not find any substance in this connection. According to the provisions of section 18 of the Partnership Act, subject to the provisions of the Partnership Act, a partner is the agent of the firm for the purpose of the business of the firm. Furthermore under the provisions of the Act, a partner is bound to look after the partnership firm and carry on business for the interest of the firm. If he is guilty of fraud or for negligence, he will be liable. Section 19 (1) of the Partnership Act provides: ‑ "Subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm". It has been further provided that the above authority of a partner to bind the firm conferred by this section is called his "implied authority". Subsection (2) (b) of section 19 has provided that "implied authority" of a partner does not empower him to open a Banking account in his own name. "Implied authority", in our opinion, means the truth of the thing not disclosed but it does not bar a contract between partners to do otherwise. A partner is authorised to open an account in the name of the partners. It is also worth noting that partnership being based on a contract, either oral or written, the partners can vary the terms of the contract itself. In this connection in Exh. A, we find the following statement in paragraph 3: "Each of the partners shall have power to open account or accounts in any Bank and to draw accept endorse or sign Bills, Hundi, Bill of Lading, contracts, agreements, letter and all other things for the proper conduct of the business and to receive payments either in cash or by cheques and grant valid receipts for all such payment singly for and on behalf of the Partnership." From this statement in paragraph 3 it is clear that each of the partners was authorised to open an account in his flame for the firm. So though clause (b) to subsection (2) of section 19 pro vides that the "implied authority" of a partner does not include opening a banking account on behalf .of the firm in his own name, yet by a contract between the parties each of the partners can open a banking account in his own name or on behalf of the firm.. The evidence of defendant No. 1 and the witness No. 1 for the plaintiff and also the dealing with the account in suit 69 the defendants Nos. 1 and 2 conclusively go to show that from certain stage this account became the account of the firm and heavy sums were drawn and paid for the purpose of the business, Mr. Bose has argued that paragraph 3 shows that the account must be for and on behalf of the partnership and that a similar provision has also been made in section 22 of the Partnership Act, namely, "shall be done or executed in the firm name". It has been argued that the above provision in paragraph 3 of the Partnership deed read with the above provision of lays goes to show that an account could have only been opened in the name of the firm. We are unable to accept this interpretation of paragraph 3 of Exh. A and the provision of section 22 of the Partnership Act. In paragraph 3 all that has been laid down is that the account must be opened by each of the partners for and on behalf of the partnership, namely, the account which will be opened will be for the partnership. That need not be in the name of firm but may be in the name of a partner alone. Then again the latter portion of section 22 to which Mr. Bose has not referred is; "or in any other manner expressing or implying an, intention to bind the firm", which expressly provides that the firm will be binding if it is shown that the intention in opening the account was to bind the firm either expressly or impliedly. Here the learned Additional Subordinate Judge has elaborately dealt with this matter. We have also gone through the evidence and we are satisfied that the intention of the parties was to bind the firm so for as the Bank account is concerned. In this connection reference may be made to the case of Karmali Abdulla Allarakhia v. Vora Karimji Jiwanji and others (42 I A 48). In the above case the following passage was quoted with approval; "Where goods are purchased or money raised for the joint adventure, and the dealing though ostensibly by an individual is truly and substantially a dealing of the joint adventure the adventurers are liable as partners." Mr. Bose relied on the case of Ram Chandra Sahu and another v. Kasem Khan and another (A I R 1925 Cal. 29), but that case does not at all help Mr. Bose, rather goes against him. The last ground urged by the learned Advocate for the appellant is that‑the suit is barred by limitation. It is contended that as the suit is based on pronote, which was executed on 2nd September 1948, the suit is barred by limitation as it is governed by Article 57 of the Limitation Act. We do not find any substance in this contention. The Suit is not based on the pronote but on the mutual, open and current account and as such it will be governed by Article 85 of the Limitation Act. There is sufficient evidence to show that in order to accommodate the business of the firm overdraft accommodation was made for the firm. We also find from the evidence of the plaintiff's witness No. I to the effect that accommodation was at first allowed on hypothecation of goods and subsequently clean accommodation was allowed at the instance of defendants Nos. 4 and 5 in collusion with defendants 1, 2 and 3 to take away the good money of the Bank against the interest of the Bank. So it appears that accommodation was at first allowed on hypothecation of goods. We accordingly find that on the basis of the pronote no money was advanced but it was taken as a security for advancing money on the overdraft account. It has been next argued that in order to be governed by Article 85 of the Limitation Act, the balance must be due on mutual, open and current account. It may be observed that there cannot be any dispute that any current account is an open account. There is no dispute that the account in suit is current but the dispute is as regards mutuality, Mr. Bose has argued that if there is always overdrawing, then there cannot be any mutuality between the parties and as such the account cannot be called mutual. For this proposition of law he has relied on the case of Ram Pershad and another v. Harbans Singh and others (6 C L J 158), the case of the Tea Financing Syndicate, Ltd. v. Chandra Kamal Bezbourah (34 C W N 1175), on the other hand, the learned Advocate for the respondent has relied on the case of Montosh Kumar Chatterjee and another v. Central Calcutta Bank Ltd. (In Liquidation) and others (57 C W N 852). In our opinion whether an account is mutual or not shall not be dependent only on the fact that there was always over draft there was always credit balance or sometime the Bank was a debtor and sometime a creditor and vice versa. It will depend upon the agreement between the Bank and the person who wants to open a current account. If by agreement each party makes himself liable to satisfy the demand of the other whenever occasion arises, then there is a mutuality. In the present case, the overdraft account was opened with a credit and according to the evidence of the plaintiff's witness No. 1 accommodation was first allowed against hypothecation of goods and subsequently clean accom modation was allowed by the defendants Nos. 4 and ‑5 in collusion with defendants 1, 2 and 3, which evidence we accept, as there is no reason for not believing that evidences it may be pointed out that all the necessary papers of this account were taken to Calcutta any how and never returned to the plaintiff Bank. Subsequently the firm allowed the defendants to overdraw but at the same time the defendants used to put in money in the account in satisfaction of the money overdrawn. So there was mutuality between the parties and as such we accordingly hold that the account in question is mutual, open and current account. It was next contended that account in question was closed on 27‑12‑1948 when the last transaction was made; and if not at least on 18‑2‑1950 when the Bank stopped payment and applied for moratorium. We are unable to accept this contention. By Exh. 1 (a) dated 5‑12‑1950, the defendant No. I demanded accounting and offered Rs. 5,000 which was paid to the plaintiff-Bank on 5‑12‑1950. The defendant No. 1 demanded accounting at the time of trial. By Exh. 2 (p) the plaintiff demanded further interest which was found due on accounting up to that date. From the above it appears the defendants demanded accounting reduction of interest, etc. and paid a sum of Rs. 5,000 while on the other hand the plaintiff realised, counted interest and demanded realisation. We accordingly find no substance in any of the contentions raised by the learned Advocate for the appellant. We accordingly dismiss the appeal with costs. Before we part with the matter, it may be pointed out that the appellant has not included and printed in the paper books most of the relevant Exhibits on which the judgment of the trial Court is based and as such, such findings of the trial Court cannot be challenged and stand binding on the appellant. This appeal is by a pauper. The Collector, Noakhali, is asked to realise the Court fees from the appellant as soon as possible. Let a copy of the order be sent to the Collector, Noakhali, without delay. A. SUBHAN CHOUDHURI J.‑I agree. K. B. A. Appeal dismissed.