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1997 DIGILAW 1231 (MAD)

R. Subramaniam v. Dena Bank, Tondiarpet Branch

1997-11-04

A.R.LAKSHMANAN, R.R.JAIN

body1997
Judgment :- AR. LAKSHMANAN, J. 1. This appeal is directed by the 3rd defendant against the judgment and decree dated 7.4.1984 of a learned single Judge of this Court in C.S. No. 4 of 1980, decreeing the suit against all the defendants except the 4th defendant. 2. It is the case of the 3rd defendant that he was a partner of the 1st defendant firm till 31.10.1997 and then after his retirement, the 2nd defendant has become of the proprietor of the 1st defendant firm and arranged with defendants 5 to 7 as co-obligants with the 1st defendant to pay the dues to the plaintiff-bank on the express understanding that the 3rd defendant would be released. But, in the written statement, defendants 1 and 2 contended that the signatures of defendants 5 to 7 were obtained by the 1st defendant on various dates and were handed over to the plaintiff. The documents handed over to the plaintiff are the promissory notes executed by defendants 5 to 7. It is the specific case of the 3rd defendant that he retired from the 1st defendant firm and a release deed was executed between him and the 2nd defendant, and in pursuance to the agreement between them, a letter was sent on 15.11.1977 enclosing a copy of the release deed to the plaintiff and that the plaintiff has also sent a reply under Ex.P-49 acknowledging the receipt of the release deed and the letter dated 15.11.1997 but stating that the 3rd defendant cannot absolve himself of the liabilities of the partnership firm till the date of his alleged release. Ex.D-4 is the letter written by the 1st defendant to the plaintiff. In that letter, the 1st defendant has stated that it has no objection for the release of the 3rd defendant from all encumbrances, but would furnish further security if so required by the plaintiff. The said letter is marked as Ex.D-4. In another letter, he requested the plaintiff to release the 3rd defendant from all the liabilities as he has furnished substituted sureties. However, the plaintiff has not released the 3rd defendant but filed the suit against the 3rd defendant as well. 3. The learned single Judge, however, rejected the contention of the 3rd defendant and has passed a decree against all the defendants except the 4th defendant. However, the plaintiff has not released the 3rd defendant but filed the suit against the 3rd defendant as well. 3. The learned single Judge, however, rejected the contention of the 3rd defendant and has passed a decree against all the defendants except the 4th defendant. Aggrieved by the said judgment and decree, the 3rd defendant has preferred the above appeal. 4. Mr. A.P.S. Kasturi Rangan, learned counsel for the appellant/3rd defendant, submitted that the plaintiff-bank after accepting the promissory notes executed by defendants 5 to 7, ought not to have filed the suit against the 3rd defendant and therefore, the decree passed by the learned single Judge against the 3rd defendant as well cannot at all be maintained. In support of his contention, he invited our attention to the evidence of P.W.1 in cross-examination. 5. P.W.1 has deposed that he was aware of that the 3rd defendant has retired from the 1st defendant firm and that the plaintiff-bank has also released him from all the liabilities.. It is his further evidence that the plaintiff has accepted the guarantees furnished by defendants 5 to 7, that they have signed the guarantee and that the same could be seen from the records given to the plaintiff. To a further question he has answered in the affirmative that on the basis of the guarantees furnished, defendants 5 to 7 were impleaded as parties in the suit. 6. The above evidence of P.W.1 is very clear that the plaintiff has accepted the guarantees offered by defendants 5 to 7 and that the plaintiff was also aware that on the date of the filing of the suit, the 3rd defendant has no interest in the 1st defendant firm and that he has retired from that firm. Under such circumstances, the plaintiff should have filed the suit only against defendant 1, 2 and 4 to 7 and not against the 3rd defendant. 7. It is now represented that the plaintiff pursuant to the decree levied execution against the other defendants and has realised the entire claim and that no money is due to it pursuant to the decree. This apart, defendants 5 to 7 were also not examined. Further, they have not filed any appeal. Therefore, we are of the opinion that the decree passed against the 3rd defendant by the learned single Judge is not sustainable in law. This apart, defendants 5 to 7 were also not examined. Further, they have not filed any appeal. Therefore, we are of the opinion that the decree passed against the 3rd defendant by the learned single Judge is not sustainable in law. The plaintiff after releasing the 3rd defendant from the liability ought not to have filed the suit against him also. The learned single Judge has not appreciated the evidence let in by P.W.1 in cross-examination in its proper perspective. The finding of the learned Judge that the 3rd defendant is also liable is not sustainable either on facts or on law. The decree against the 3rd defendant is a nullity. 8. For all the foregoing reasons, we allow the appeal filed by the 3rd defendant with costs throughout and set aside the decree passed by the learned single Judge against the 3rd defendant. Since the appeal has been filed by the 3rd defendant as an indigent person, he is directed to pay the Court fee due on the memorandum of appeal.