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2002 DIGILAW 27 (GAU)

Assam Industries, Bokakhat v. Ladulal Jain

2002-01-11

RANJAN GOGOI

body2002
R. Gogou, J.— This First Appeal been filed by the defendants in the suit against the judgment and decree 4.9.93 passed by the learned Assistant District Judge (now Civil Judge, Sr. Division Golaghat in Money Suit No. 26 of 198! decreeing the plaintiffs suit. 2. A brief resume of the facts may be mad' as hereunder: 3. The plaintiff, a registered partnership firm, carrying on business amongst others a banker, dealer and distributor of petroleum products instituted Money Suit No. 26 o 1988 in the Court below praying for realization of a sum of Rs. 1,25,0007- along with interest at agreed rate of 18% thereon against the present appellants as defendants The short case of the plaintiff is that 01 24.12.85 the defendant No. 3(appellant No 2 herein), on behalf of the other defendants ii the suit had approached the plaintiff for grant of a loan of Rs. 1,25,0007- in the name o defendant No. 1, a partnership firm. The aforesaid loan amount was agreed to be repaid on 15.4.86 along with interest at the rate of 18% per annum. According to the plaintiff an account payee cheque bearing No 001622 dated 27.12.85 in favour of the defendant-firm/appellant No. 1 drawn or United Bank of India, Bokakhat Branch was issued by the plaintiff. The defendant acknowledged receipt of the said loan by« letter as also the terms and conditions o repayment as stated hereinabove. As the defendant had failed to repay the loan, the plaintiff issued letters of demand on 14.4.86 as well as on 28.6.86. The defendants 01 receipt of the said letters, by replies dated 28.4.86 and 2.7.86, while accepting the fact that the amount was due, requested the plaintiff to wait for some more time. As the subsequent communications of the plaintiff were not responded by the defendants, the instant suit was filed after giving due notice to the defendants. 4. The defendants contested the suit by filing a written statement denying the claims made by the plaintiff and contending that in the normal course of business, the plaintiff firm used to supply petrol, mobile and diesel to one Haultey Tea Estate owned by the defendant firm and because of such transactions an account payee cheque bearing No. 039676 dated 27.12.85 for Rs.1,25,000/- was issued to the plaintiff by the defendants. According to the defendants as the plaintiff had closed the accounting year on the date when the cheque was issued, the plaintiff on mutual understanding issued the cheque bearing No. 006122 dated 27.12.85 for the same amount namely, Rs. 1,25,000/-. On the aforesaid facts the defendants contested that the instant suit had been instituted for illegal gains and that the claim, if any, of the plaintiff was against Haultey Tea Estate. On the aforesaid grounds the defendants prayed for dismissal of the suit. 5. The learned Trial Court framed as many as five issues for trial. Both the plaintiff as well as the defendants examined one witness each in support of their respective cases. The learned Trial Court after an elaborate discussion on each of the issues framed came to the conclusion that the case of the defendants as set up in the written statement was not acceptable in view of the Exhibits-1, 2 and 3 proved in the suit. The learned Trial Court on consideration of the aforesaid Exhibits-1,2 and 3 came to the conclusion that the defendants having accepted the cheque in question on account of the loan granted by the plaintiff and the liability of the defendants to return the said loan along with interest having been admitted by the defendants by Exhibits-2 and 3, the denials made by the defendants in the suit, including the pleadings, regarding the account of Haultey Tea Estate are not worthy of credence. On the basis of the aforesaid findings the learned Trial Court thought it fit to decree the suit of the plaintiff for payment of Rs. 1,25,0007-along with interest at the rate Of 1^% per annum till the date of realisation of the principal amount. The correctness of the aforesaid judgment and decree is the subject matter of challenge in the present appeal. 6. A perusal of the judgment & decree passed by the learned Trial Court presently under challenge reveals an elaborate consideration of the case of the respective parties as pleaded. The learned Trial Court in its discussion under each of the issues framed in the suit took into account the oral evidence of the parties as well as the documents brought on record and on that basis came to the finding that the amount of Rs. The learned Trial Court in its discussion under each of the issues framed in the suit took into account the oral evidence of the parties as well as the documents brought on record and on that basis came to the finding that the amount of Rs. 1 ,'25,0007-admittedly received by the defendants from the plaintiff was by way of loan and not on account of adjustment of the cheque allegedly paid in respect of Hautley Tea Estate. The learned Trial Court by relying on Exhibit-2 and 3 had come to the conclusion that the defendants have acknowledged receipt of the loan and, therefore, the stand taken in the .written statement as unfolded by D.W.I, was not correct and cannot be accepted. 7. Exhibits-1,2 and 3 proved in the case amply demonstrates receipt of Rs. 1,25,000/ - by the defendants from the plaintiff on account of the loartadvanced by the plaintiff. Exhibit 2 and 3 namely, the replies given by the defendants to the plaintiff in response to the demands for payment of the loan would go to show that in the aforesaid communications the defendants had accepted receipt of the loan and they had requested the plaintiff for grant of further time/for re­payment of the same. In view of the aforesaid materials on record, it will be difficult for this court to hold that the findings arrived at by the learned Trial Court are in any way infirm requiring interference by the Appellatp Court. 8. Mr. PK Kalita, learned counsel for the appellants has made an attempt to persuade the Court to hold that the defendants' liability was wrongly determined by the learned Trial Court on a somewhat different issue. Mr. Kalita has submitted that the evidence of DW 1 has made it clear that the defendant No. 1, a partnership firm was constituted by two partners namely, defendant No. 2 and 3. The learned counsel submits that it has come on record that the defendant No. 2 died on 9.1.89 and though the legal heirs of the said deceased were brought on record, the defendant firm on the expiry of one of the partners has ceased to be in existence with effect from the said date. Mr. The learned counsel submits that it has come on record that the defendant No. 2 died on 9.1.89 and though the legal heirs of the said deceased were brought on record, the defendant firm on the expiry of one of the partners has ceased to be in existence with effect from the said date. Mr. Kalita therefore, contends that as soon as the defendant firm ceased to be in existence by dissolution operation of the liability against the defendant firm for re-payment of the loan amount ceased to have any effect and in the absence of any amendment to the plaint seeking any modified reliefs, the decree in so far it relates to the firms is patently illegal. 9. Mr. RK Jain, learned counsel for the respondent in the appeal has contested the aforesaid argument advanced on behalf of the appellants. Mr. Jain has drawn the attention of the Court to the provisions of Section 25 of the Indian Partnership Act, 1932 as well as the provisions of Order 3 Rule 4 of the CPC. Mr. Jain has also pressed into service a Division Bench Judgment of the Gujarat High Court in the case of Pt. Ram Prasad Chhotalal-Vs-Bai Reva reported in AIR 1970 Gujarat 269 in support of his contention that the defendant firm might have been dissolved on the death of the defendant No. 2 but for the limited purpose of the suit, such dissolution upon death of one of the partners, would not effect the rights of the third party in the suit and the defendant firm must be deemed to be in existence. 10. I have considered the submissions advanced by the learned counsel for both the parties. In the case of Ramprasad Chotalal(supra), the Gujarat High Court while dealing with a similar issue came to the conclusion that as per the provisions contained in the Indian Partnership Act, it cannot be said that the rights of the strangers to the partnership firm would be affected by dissolution of the firm on the death of a partner under Section 42(c) of the Act. The Gujarat High Court has further held that such a right continues in the creditor unless it is discharged by the firm or its partners. The Gujarat High Court has further held that such a right continues in the creditor unless it is discharged by the firm or its partners. The aforesaid law laid down by the Gujarat High Court appears to be in consonance with the provisions of Section 25 of the Indian Partnership Act and Order 30 Rule 4 of the CPC. The aforesaid issue, however, has become largely academic in as much as the decree under challenge has been passed against the partnership firm as well as the surviving partner namely, defendant No. 3(appellant No. 2 in the present appeal), both jointly as well as severally. 11. In view of the decision of the Gujarat High Court in the case of Ramprasad Chottalal(supra) with which this Court is in complete agreement, this Court finds no reason to interfere with the judgment and decree passed by the learned Trial Court presently under challenge. 12. This first appeal, therefore, stands dismissed but without any cost. The judgment and decree dated 4.9.93 passed by the learned Assistant District Judge(now Civil Judge, Senior Division) Golaghat in Money Suit No. 26 of 1988 shall stand affirmed. 13. Before parting with the record, it may be noticed that the decree presently under challenge is also against the defendant No. 2 in the suit who has in the meantime died. The legal heirs of the said deceased defendant having been brought on record, the names of the said legal heirs should have found place in the decree instead of the deceased defendant. One of the legal heirs of the deceased defendant No. 2 namely, the defendant No. 3(appellant No. 2 in the present appeal) is already on record in the decree. The names and particulars of the other two legal heirs as mentioned in the petition for substitution dated 14.3.89 i.e. Petition No. 472 be incorporated in the decree and the decree be corrected accordingly.