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TMI Blog1935 (2) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... a bepari business, while the defendants second party are said to do arhatdar and charge an arhat or commission of recognised percentage to vendors or to purchasers who do business through them. 3. In the course of his bepari business the defendant first party from time to time purchased chillies from the plaintiff's firm and made payments at Dalsingserai. The case alleged in the plaint is that a certain contract for sale of chillies was arranged between the plaintiffs and the defendant first party and the defendant second party stood surety for the liabilities of the defendant first party to the plaintiffs. The consideration for this contract, that is to say, the advantage moving from the plaintiffs to the defendants second party for entering into this alleged contract is not stated in the plaint. It is said that there was an adjustment of accounts and that a sum of ₹ 5,700 odd was due by the defendant first party to the plaintiffs for goods supplied. The defendant first party admits the indebtedness The defendants second party deny the alleged contract of surety ship though they are not prepared to dispute the liability of the defendant first party to the plaintiffs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of Jankinath Paul has occurred in his denial of certain documents. This is an, instance of the prevalent and stupid practice of setting up a false and dishonest case when a simple and straightforward defence could successfully have been maintained. It was no doubt due to his dishonesty in this matter that the defendant second party lost his case in the Court below. 5. Contracts of guarantee that is to say contracts to perform the promise or discharge the liability of a third person in a case of his default should, If relied on, be proved strictly. Under English Law writing is required to evidence such a contract. It is true that this is not the case under Indian Law but the need for strictness of proof is as great if not greater in India than in England. I have said that the plaint does not state that the plaintiffs agreed to supply defendant 1 with goods in consideration of defendant 2 guaranteeing his account, and indeed the evidence itself discloses no consideration to defendant 2 of this or any other kind for his entering into the alleged surety ship. The learned Subordinate judge in dealing with the alleged contract of surety ship was constrained to admit that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would suggest that in consideration of this offer the plaintiffs gave time to the defendant first party and indeed the offer seems to have been of no avail in arresting the legal proceedings against the two defendant. It was not until he was cross-examined with the usual inaptitude that Moti Singh made any mention of the contract actually sued upon and he then apparently remembered the way in which the plaint had been drawn and then and not before set up a case that the defendants second party had proposed to the plaintiffs that the purchases should be made by the defendant first party and that the defendants second party would guarantee the account. Moreover the two supposed contracts, if there ever were two contracts, differ completely the one from the other. The contract sued upon is one said to have been entered into by the plaintiffs with the defendants second party that the plaintiffs would supply goods to the defendants first party on credit (it may possibly be implied in consideration for a contract of guarantee by the defendants second party. The second alleged contract was one in which the plaintiffs refrained from suing the defendant first party on consideration of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the costs taxed in their favour. Sankara Balaji Dhavle, J. 11. The deed of gift executed by Sarda Sundari De Pal in favour of Janki Nath De Pal and his brothers in January 1926, Ex. 1, shows that a business was carried on under the name of Sitanath Paul jankinath Paul by Sitanath and his brothers after their father's death in 1305 B.S. Sitanath, the eldest son died in 1326, and the business was then carried on by the surviving brothers. In 1331 there was another business started in the name of Sarda Sundari Pal, and by the deed of gift the mother, Sarda Sundari, transferred her interest in it to five sons. Whether or not the business carried on in the name of Sitanath Paul Jankinath Paul was formally wound up seems immaterial so far as the liability sought to be enforced in this suit is concerned, because the evidence shows that the same brothers were carrying on business under either name indifferently, and continued to receive invoices and consignments and send out communications, in the old firm name, down to the institution of the suit. The finding of the learned Subordinate Judge is amply borne out by the evidence that: the truth seems to he that although the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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