JUDGMENT: This Court ordered C.M.P.No.2125 of 2007 on 20.6.2008 and the dismissal order dated 21.3.2007 made in the second appeal was set aside and the second appeal was restored to file. The second appeal was heard and judgment was reserved on 20.6.2008. 2. Sri Agastya Sharma, learned counsel representing appellant had taken this Court through the substantial questions of law raised in the memorandum of grounds of second appeal and would point out that the appellate court totally erred in reversing the well considered judgment of the trial court. The learned counsel also had taken this Court through the oral evidence of P.W.1, D.Ws.1 and 2 and also the documentary evidence Exs.A-1 to A-3 and Exs.B-1 to B-5 and would maintain that in the facts and circumstances of the case when the Manager had issued Exs.A-1 to A-3, it may have to be taken that the amounts had been received on behalf of M/s. Orissa Transport Service and in fact the court of first instance appreciated the oral and documentary evidence available on record and came to the correct conclusion. Whereas, the appellate court, without appreciating the evidence available on record in proper perspective, had reversed the well considered judgment of the court of the first instance and allowed the appeal dismissing the suit. The learned counsel also would maintain that it is not as though the partners are available at Hyderabad. They are far away and the Manager alone will be looking after all the affairs of the transport service at Hyderabad and the Manager represents the firm as such and the acts of the Manager would be binding on the firm. The learned counsel also had drawn the attention of this Court to Section 25 of the Indian Partnership Act and also Section 2 (a) and 2 (b) of the said Act and would maintain that in the light of the said provisions, the decree of the court of first instance to be restored and the findings recorded by the appellate court to be disturbed by setting aside the decree and judgment made by the appellate court dismissing the suit. 3. 3. On the contrary, Sri P.V.A. Padmanabham, learned counsel representing respondents had taken this Court through the findings recorded by the appellate court and would maintain that the principal question to be decided is that whether the Manager was authorized to enter into these transactions and in the absence of any authority, the acts of said manager would be unauthorized and such acts will not be binding on the firm. In other words, the counsel would maintain that the firm cannot be made liable for such unauthorized acts of the Manager and if at all any receipts had been passed by the Manager even specifying the name of the firm, the Manager as such may be fastened with the liability and not the firm and even otherwise in the absence of the Manager, no relief as such can be granted and, hence, the appellate court is well justified in reversing the decree and judgment made by the trial court. 4. Heard the counsel on record, perused the oral and documentary evidence on record, the findings recorded by the court of first instance and also the findings recorded by the appellate court as well. 5. The substantial questions of law on the strength of which submissions had been made by the counsel on record are as hereunder: a) Whether the appellate court can reject Exs.A-1 to Ex.A-3 received and marked on behalf of the appellant having no evidential valuez b) Whether Ex.B-1 cash statement prepared by respondent No.1 is the valid and binding on the appellant herein and similarly statement of account marked as Ex.B-2 has any bearing to the suit transaction? c) Whether the act of the then Manager does not bind the respondents 1 and 2 herein, who accepted as their agent? d) Whether the evidence of D.W.1 and D.W.2 having no personal knowledge, can be believed? 6. The parties hereinafter would be referred to as shown in O.S.No.2591 of 1987 on the file of IX Assistant Judge, City Civil Court, Hyderabad. 7. The suit was filed by the plaintiff against the respondents herein, the defendants in the suit, for recovery of an amount of Rs.20,000/-. It was averred in the plaint as hereunder: Defendant No.1 is the branch office of defendant No.2 and they carry on transport business having its head office at Calcutta. The plaintiff was carrying on business at Hyderabad. The suit was filed by the plaintiff against the respondents herein, the defendants in the suit, for recovery of an amount of Rs.20,000/-. It was averred in the plaint as hereunder: Defendant No.1 is the branch office of defendant No.2 and they carry on transport business having its head office at Calcutta. The plaintiff was carrying on business at Hyderabad. Defendant No.1, for the sake of its business, used to obtain hand loans of and on from the plaintiff and also from other persons for a short period on returnable basis. On the earlier occasions, defendant No.1 borrowed and received hand loans from the plaintiff which were paid back within a short period. On 01.01.1987 defendant No.1 borrowed and received a sum of Rs.10,000/- under two separate receipts of Rs.5,000/- each from the plaintiff promising to repay the same as early as possible. On 04.01.1987 again defendant No.1 borrowed and received Rs.10,000/- from the plaintiff under a receipt dated 04.01.1987 promising to repay the same at the earliest. Defendant No.1 failed to repay the said amount in spite of repeated demands. It is also stated that plaintiff came to know that the defendants owe Rs.4.00 lakhs or 5.00 lakhs to their creditors at Hyderabad and were trying to wind up business in order to defraud their creditors. Defendant No.2, being the head office of defendant No.1, was also liable to be sued and both the defendants were jointly and severally liable to pay a sum of Rs.20,000/- to the plaintiff with costs and future interest at 18% per annum from the date of suit till the date of realization. 8. The first defendant filed adoption memo adopting the written statement of the second defendant. The second defendant filed written statement with the following averments: The partners of the defendants' firm were residents of Calcutta and the plaintiff was totally a stranger to the firm, hence, the question of borrowing money as hand loan does not arise at all. Defendant No.1 was being a registered concern always represented by its partners in business dealings as per law of Partnership. The erstwhile manager of defendant No.1 firm by name Govind Singh was only an employer of the firm and he had no authority or power to create liability by borrowing to bind the firm, therefore, the alleged receipts passed by Govind Singh cannot bind the firm or its partners. The erstwhile manager of defendant No.1 firm by name Govind Singh was only an employer of the firm and he had no authority or power to create liability by borrowing to bind the firm, therefore, the alleged receipts passed by Govind Singh cannot bind the firm or its partners. It is further averred that the said Govind Singh, who was erstwhile manager, was removed from service and a case of criminal breach of trust was filed against him and investigation was going on. The defendants being financially sound, they had not taken any amount from the plaintiff. It is also averred that only the acts of the partners bind the firm and no other person had authority to bind the firm by his acts, much less, an employee, hence the suit is liable for dismissal. 9. On the strength of these pleadings, the following issues were settled before the court of first instance: (1) Whether the suit is maintainable against the defendants? (2) Whether the plaintiff is entitled for the suit claim? (3) To what relief? 10. Plaintiff had examined himself as P.W.1 and Exs.A-1 to A-3 were marked. On behalf of respondents-defendants one of the partners Rajendrakumar Gupta was examined as D.W.1 and Branch Manager of defendant No.1 Company Bimalkumar Bansali was examined as D.W.2 and Exs.B-1 to B-5 were marked. 11. The trial court recorded findings that Govind Singh had worked as Branch Manager of the defendants' firm and the said Govind Singh was convicted to suffer R.I. for two years and also to pay a fine of Rs.1,000/-, in default to suffer S.I. for six months for misappropriation and Ex.B-5 is certified copy of judgment in C.C.No.353 of 1987 and further recorded that the misappropriation period is from 09.4.1987 to 30.4.1987. Whereas the borrowal dates of present suit are 01.01.1987 and 04.4.1987 and further had taken into consideration the evidence of P.W.1 and also Exs.A-1 to A-3 and also appreciated the evidence of D.Ws.1 and 2 and also Exs.B-1 to B-4 apart from Ex.B-5 and came to the conclusion that since the signatures of Govind Singh on the documents being on the letterheads of the firm, came to the conclusion that as manager he had authority to borrow the amount on behalf of the firm and further relied upon certain decisions and accordingly decreed the suit. Defendants, being aggrieved by the decree and judgment made by the court of first instance, carried the matter by way of appeal A.S.No.191 of 1990 on the file of the Additional Chief Judge-cum- Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, and the appellate court after framing the point for consideration at para 8 proceeded to discuss with the oral and documentary evidence at paras 9, 10, 11 and 12 and recorded a specific finding that the alleged amounts shown in Ex.A-1 to A-3 can be said to be for the personal use of executant of Exs.A-1 to A-3 and the said Govind Singh was not impleaded as a party to the suit and the said borrowal is not binding on the firm and ultimately negatived the relief to the plaintiff by setting aside the decree and judgment of the court of first instance by allowing the appeal. Aggrieved by the same, the present second appeal had been preferred. 12. The respective pleadings of the parties, the findings recorded by the courts below in nut-shell, the substantial questions of law on the strength of which submissions were made by the counsel on record already had been specified above. Though certain substantial questions of law had been pointed out, the principal question which had been argued in elaboration by the counsel on record is that whether the acts of the then manager are not binding on the firm who had accepted him as their agent. The counsel for appellant placed strong reliance on Section 25 of the Indian Partnership Act. Section 25 of the said Act deals with the liability of a partner for the acts of the firm and the said provision specifies that every partner is liable jointly with all the other partners and also severally, for all acts of the firm done while he is a partner. It is pertinent to note that if a particular act had to be taken as an act of a firm, it was being an act or omission of (1) all the partners; or (2) any one or some of the partners; or (3) an agent of the firm 13. It is not the case of either of the parties that all the partners or anyone of such partners are involved in these transactions. It is not the case of either of the parties that all the partners or anyone of such partners are involved in these transactions. The specific case is that the manager of the firm, as the agent of the firm, has the authority to represent the firm and to enter into the transactions and, hence, the firm is bound by such acts. The said agent of the firm had not been impleaded as a party. It may be that since the plaintiff might have thought that for the acts of the manager, the firm is liable the plaintiff had not thought of impleading such party. The conduct of the manager appears to be blameworthy as reflected by Ex.B-5. 14. Be that as it may, no doubt, the period of misappropriation appears to be different from the period of transactions relating to the present suit. However, submissions at length were made by Sri P.V.A. Padmanabham, representing respondents that manager cannot be equated with that of an agent and general principles relating to the agency cannot be totally ignored. Further, reliance also was placed on Section 2 (a) and (b) of the Act aforesaid. Section 2 of the Act deals with definitions and Section 2 (a) specifies that in this Act, unless there is anything repugnant in the subject or context an "act of a firm" means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. Section 2 (b) specifies that in this Act, unless there is anything repugnant in the subject or context "business" includes every trade, occupation and profession. No doubt Section 2 (e) specifies that in this Act, unless there is anything repugnant in the subject or context expressions used but not defined in this Act and defined in the Indian Contract Act, 1872 (9 of 1872) shall have the meaning assigned to them in that Act. 15. The evidence of P.W.1-appellant is clear and categorical about Exs.A-1 to A-3. It is not in serious controversy the same was signed by the then Manager and issued on behalf of M/s. Orissa Transport Service. 15. The evidence of P.W.1-appellant is clear and categorical about Exs.A-1 to A-3. It is not in serious controversy the same was signed by the then Manager and issued on behalf of M/s. Orissa Transport Service. Ex.B-1 is the cash statement issued by Orissa Transport Service; Ex.B-2 is the statement of account; Ex.B-3 is the original deed of partnership dated 01.4.1983; Ex.B-4 is the true copy of registration of the defendants' firm and Ex.B-5 is the certified copy of judgment in C.C.No.353 of 1987 on the file of III Metropolitan Magistrate, Hyderabad. 16. Lot of emphasis had been laid on Exs.A-1 to A-3. It is true that Exs.A-1 to A-3 contained the rubber stamp of the firm and the then Manager signed these documents. It is not in controversy that Govind Singh is an employee of the defendants and he was Branch Manager of D-1 at Hyderabad at a relevant point of time. The evidence of D.Ws.1 and 2 is categorical that Govind singh had withdrawn the cash of the defendants from the Bank of Baroda at Hyderabad and if there was any necessity for the business, the said Govind Singh was given bank cheques for borrowing the amounts from the bank and, hence, there was no necessity for Govind Singh to enter into any independent transaction of borrowing amounts. Further, it is not the specific case of the plaintiff that the firm as such had affirmed any authority to borrow the amounts. It may be true that the partners were not available at Hyderabad and it may be true that the Manager had been transacting several functions at Hyderabad. Whether a mere employee like Manager can be taken as an agent for all practical purposes and when the same cannot be taken as express agency in between the firm and the manager by virtue of conduct of the parties, can it be taken as implied agency so as to fastened the liability against the firm. These would be the questions which may have to be gone into in the present second appeal. It is also no doubt true that the dates of borrowal of these amounts by the then Manager are different from the relevant dates of misappropriation which ultimately resulted in a criminal action as already specified supra. The conduct of the manager appears to be no doubt blameworthy. It is also no doubt true that the dates of borrowal of these amounts by the then Manager are different from the relevant dates of misappropriation which ultimately resulted in a criminal action as already specified supra. The conduct of the manager appears to be no doubt blameworthy. But it is unfortunate that the plaintiff who had advanced the amounts under Exs.A-1 to A-3 to the then Manager of the firm. Whether the Manager was competent to represent the firm at the relevant point of time or not is the controversial question. 17. I had carefully scrutinized the findings of the court of first instance and also the findings of the appellate court and further had thoroughly gone through the oral evidence available on record the evidence of P.W.1, D.Ws.1 and 2 and also the documents Exs.A-1 to A-3, Exs.B-1 to B-5 as well. Except the evidence of P.W.1, the appellant-plaintiff had not chosen to examine any other witness to substantiate his stand that a mere employee, the then Manager, of the firm had been acting as an agent or by virtue of different transactions of the firm transacted by the then Manager the implied agency could be inferred. The relevant facts necessary for drawing such inference also had not been pointed out. It is no doubt true that it may be that bona fide the third party creditor to the firm, the present plaintiff, might have advanced the amounts. May be the then Manager Govind Singh utilized the said amounts for his personal use. 18. Exs.B-1 to B-5 had been heavily relied upon to substantiate this stand. Inasmuch as the plaintiff had not been placed clear proof relating to these missing links, in the light of the facts and circumstances, this Court is inclined to set aside the decree and judgment of the appellate court and make an order of remand and let the appellate court give opportunity to both the parties to let in further evidence in the light of the findings recorded by this Court supra and decide the matter afresh in accordance with law. 19. Accordingly, the second appeal is hereby allowed to the extent indicated above. Since this Court is making an order of remand, the parties to bear their own costs in this second appeal.