Bishwanath and ors. Vs. Jagannath Prasad and ors. - Court Judgment

Excerpt:
commercial - power to correct error - section 19 (2) ( c ) of partnership act, 1932 - claim due and realizable from the debtor by the firm - one partner of a firm has no implied authority to relinquish a part of that claim by compromise or otherwise, except if there is any usage or custom to the contrary. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - he was satisfied that the rice was of inferior quality and therefore he reduced the amount of the bill by a sum of rs. further more upon the finding of the court below that the rice supplied was indeed of bad quality, the amount was bound to be reduced.agarwala, j. 1. this is a defendants' appeal arising out of a suit for recovery of money. the plaintiffs-respondents deal in grain and cloth. they used to purchase rice from the defendants-appellants firm. they alleged that there were transactions between the plaintiffs and the defendants firm, as a result of which the plaintiffs said that rs. 880/ 18/6 was the balance due to them and filed a suit for the recovery of the same, 2. the defendants contested the suit and according to them nothing was due to the plaintiff. on one occasion certain quantity of rice was sent by the defendants to the plaintiffs and a bill was made out. when the plaintiffs received the rice, they found that it was of an inferior quality than was ordered for. they brought this to the notice of the defendants firm. one sarju prasad, a partner of the defendants firm, was the person dealing with these matters. he was satisfied that the rice was of inferior quality and therefore he reduced the amount of the bill by a sum of rs. 628/8/-. the defendants challenged this reduction by sarju prasad and said that they were not bound by the act of sarju prasad. the defendants' reliance was upon section 19(2)(c), partnership act. sub-section (1) of section 19 oi the act lays down: '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. the authority of a partner to bind the firm con-ferred by this section is called his 'implied authority'. then sub-section (2) lays down: 'in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not earpower him to-- (a) ..... (b) ..... (c) compromise or relinquish any claim on portion of a claim by a firm'. according to the defendants-appellants this reduction by sarju prasad, one of their partners, in the amount of the bill was a compromise or a relinquishment of a claim or a portion of a claim by the firm, which sarju prasad had no authority to do. 3. the court below held that this was not a case of compromise or relinquishment of a claim or a portion of a claim, but that it was a case of correction of a bona fide mistake in the bill or bijak submitted to the plaintiffs on behalf of the defendants. 4. i am in entire agreement with the view taken by the learned judge of the court below. the court below has found that the rice supplied was of an inferior quality and that the amount of rs. 628/8/- was properly reduced by sri sarju prasad from the bill. in the ordinary course of business where a firm deals in purchase or sale of goods according to orders of its customers and the goods supplied happen to be of an inferior quality or short in weight and the mistake is pointed out by the customer, the partner who is dealing with the matter must of necessity have the power of correcting the mistake, otherwise the day to day business of the firm cannot be carried on. the case contemplated in clause (c) of sec-tion 19 (2) is a case of a claim made by the firm which was due and realizable by the firm from the debtor. where a certain amount is validly due to the firm, one partner has no implied authority, unless there be a custom or usage to the contrary, to relinquish a portion of that claim by compromise 01 otherwise. the claim here referred to is a claim which is lawfully due and not an obvious error in a bill or other document made out on behalf of the firm by its servants or partners. learned counsel has relied upon a ruling in -- 'krishnaji bharrnalji and co. v. abduirazak ahmadbhoy air 1942 bom 22 (a). that was a case of an assignment of a decree in favour of a firm by one of its partners for an amount less than the decretal amount. it was held that the partner had no authority to do this in the absence of any express authority or trade usage. that case in fact lends support to what i have stated above. it is a claim of the nature referred to in that case that cannot be relinquished or compromised and not the kind of correction or adjustment that was made by sarju prasad in the present case. further more upon the finding of the court below that the rice supplied was indeed of bad quality, the amount was bound to be reduced. 5. there is no force in this appeal. it is dismissed under order 41, rule 11, civil p. c.