JUDGMENT Abhay Manohar Sapre, J. 1. Heard. 2. This is a first appeal filed by the plaintiff under Section 96 of C.P. Code against the judgment and decree dated 27.02.2001 passed by the District Judge, Raipur in Civil Suit No. 96A/86. 3. By the impugned judgment and decree, the trial Court dismissed the plaintiff's suit filed for recovery of Rs.9,13,630.24 against the defendants. 4. So the question that arises for consideration in this appeal is whether the trial Court was justified in dismissing the plaintiff's suit? 5. Facts of the case need mention to appreciate the controversy involved in the suit and now in appeal. 6. The appellant (plaintiff) is the nationalized bank where-as respondent No.1 (defendant No.1) M/s Indiana Cosmetic and Chemical Industries is a partnership firm. The partners of the defendant No. 1 firm at all relevant time were one Shri Nand Kishore Jaisinghani - original defendant NO.2 (since dead) now represented by his legal representatives as defendants 2(A) to 2(D) and one Shri Lekhram Budhani- defendant No.3. There is some dispute about the status of Smt Maina Parwani - defendant NO.4 as to whether she was inducted in the partnership in her individual capacity or as natural guardian of one minor Manoj Parwani to represent his interest. The fact remains that she was admitted to the partnership business and was accordingly arrayed by the plaintiff, as one of the partner of the defendant No. 1 - firm. 7. According to the plaintiff, the defendant No. 1 - firm which was engaged in the business of manufacturing certain goods had taken a loan from the plaintiff -Bank in November 1980 in the form of cash credit facility limit to the extent of Rs.2,00,000/- and a term loan of Rs.3,00,000/- for expansion of their business activity and to secure the loan, had executed all necessary documents in Bank's favour - such as demand promissory notes, letter of continuity, agreement of hypothecation, letter of hypothecation of machinery, articles of agreement of loan etc. These documents were duly signed by partners of the firm named above. It was also the case of the plaintiff that defendant No.5 (since dead) acted as surety for the defendant - firm to secure the loan amount by mortgaging his house. These documents were duly signed by partners of the firm named above. It was also the case of the plaintiff that defendant No.5 (since dead) acted as surety for the defendant - firm to secure the loan amount by mortgaging his house. The plaintiff further alleged that the defendant No. 1 - firm failed to repay the amount either towards principal or interest accrued thereon in terms of loan agreement. It was alleged that it was for this reason, the defendants duly acknowledged their liability to repay on 22.07.1982 and 17.08.1984 in writing by executing acknowledgement of liability. It was further alleged that since the defendants failed to repay any amount in terms of loan agreement, and hence, the plaintiff served the defendants a legal notice dated 01.08.1985 (Ex-P-9) calling upon them to repay the principal amount together with interest accrued thereon. The defendants despite receipt of the legal notice since failed to pay and hence, the suit, out of which, this appeal arises was filed against all the defendants on 31.3.1986 for recovery of Rs.9,13,630/- which included principal sum and interest accrued thereon till the date of filing of suit. 8. Before filing the written statement, the defendant No. 2 - Nand Kishore Jaisinghani died and hence, his legal representatives (four sons) were brought on record as defendant No.2 (A) to 2 (D). Similarly during pendency of suit, defendant NO.5 - Prabhu Das Parwani - guarantor also died. However, instead of bringing his legal representatives on record, the plaintiff applied for deletion of his name from the cause title. The trial Court by order dated 20.4.2000 permitted the deletion. In this view of the matter, now so far as defendant No.5 i.e. Guarantor is concerned, the suit no longer survived qua defendant No.5. 9. Defendant No. 1 - firm did not file any written statement. However, each defendant filed their individual written statement and took a common stand against the plaintiff. They denied the plaintiff's claim saying that neither the firm (defendant No.1) had taken any loan and nor they had signed any documents in plaintiff's favour. At the same time, they alleged that the then Branch Manager- one Mr. Chatopadhya while granting loan to the defendants and making recovery by sale of hypothecated assets indulged in several kind of irregularities. They denied the plaintiff's claim saying that neither the firm (defendant No.1) had taken any loan and nor they had signed any documents in plaintiff's favour. At the same time, they alleged that the then Branch Manager- one Mr. Chatopadhya while granting loan to the defendants and making recovery by sale of hypothecated assets indulged in several kind of irregularities. It was also averred that the Bank had taken possession of the entire assets (land, shed, and goods) in the year 1985 but did not make any efforts to sell them for realization of their dues till 1994 and when they actually sold in 1994, it hardly fetched Rs.2,61,000/-. It was thus alleged that due to delay on the part of the plaintiff-Bank, no decree for recovery of any money on the strength of the loan transaction in question can be passed against the defendants and all the partners stood discharged from the liability arising out of loan transaction which no longer now subsists to enable the plaintiff for its enforcement against the defendants. 10. Parties adduced evidence. The trial Court dismissed the suit. However, while answering issues 2, 4, 5 and 11, it held in plaintiff's favour that defendant firm had taken the loan from the plaintiff- Bank and that they did not repay the same. It was, however, held that since the Bank obtained the possession of the hypothecated property (land, shed and goods) in 1985 did not dispose of the property in time and hence, due to this lapse on their part, they could hardly recover Rs.2,61,000/-. It was therefore held that no decree for further sum can be passed against the defendants and the plaintiff-Bank has to remain satisfied with what they have recovered by way of sale of properties i.e. Rs.2,61,000/-. It is against this dismissal; the plaintiff has felt aggrieved and filed this first appeal under Section 96 of C.P.C. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and pass a decree in plaintiff's favour against the defendants as indicated below. 12. It is against this dismissal; the plaintiff has felt aggrieved and filed this first appeal under Section 96 of C.P.C. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and pass a decree in plaintiff's favour against the defendants as indicated below. 12. At the outset, it may be proper to mention that the trial Court having held in plaintiff's favour while answering issues 2, 4, 5 & 11 that the defendant No.1 firm had taken the loan from the Bank for the amount claimed in the plaint, it was necessary for the appellant (plaintiff) to again prove this fact in this appeal. In other words, the trial Court having categorically held in the plaintiff's favour that they have discharged their burden by proving the transaction of loan between them and defendants 1 to 4 to be genuine and legal and further they having proved that the defendants failed to repay the loan, there arise no question to examine this issue again here. 13. We consider it apposite to reproduce this finding of trial Court below for perusal : ^^10- izfroknhx.k dh vksj ls gfjvkse izdk’k nsokaxu ¼ok-lk-4½ dks izfrijh{k.k esa ;g lq>ko fn;k x;k gS fd cSad ds vf/kdkjh eq[kthZ] ‘kekZ rFkk ikBd us bl izdkj vusdksa [kkrksa esa xM+cM+h rFkk xyr bUnzkt dj Lo;a cSad dh jkf’k dk xcu fd;k Fkk] bl izdj.k ds laca/k esa bl lk{kh us badkj fd;k gSA gekjh jk; esa ys[kjkt cq/kokuh }kjk _.k ds laca/k esa nks ckj nLrkost fu”ikfnr fd, tkus ds rF; Lohdkj fd;k tkuk rFkk ;g crk;k tkuk fd cSad ds nks ikVZuj uanfd’kksj rFkk uanyky ijokuh dh e`R;q gks tkus ds ckn lu~ 1985 esa QeZ ds Åij cSad ds _.k gksus ls QeZ dh leLr laifRr lsUVªy cSad ds vf/kdkfj;ksa ds lqiqnZ dj fn;kA bl laca/k esa Bkdqj fot; flag vfHkHkk”kd ¼Mh MCY;w 3½ us Hkh bl rF; dh iqf”V dh gSA bu ifjfLFkfr;ksa esa xfHkZr:i ls rFkk izfroknh ds lk{; ls Hkh ;g fl) gksrk gS fd QeZ us cSad ls ;g _.k izkIr fd;kA vr% okn iz’u Øekad&02] 04] 05 ,oa 11 ldkjkRed :i ls fu.khZr fd;k tkrk gSA^^ (emphasis supplied) 14. Though these findings were recorded against the defendants and yet they did not file any cross objection against them. Though these findings were recorded against the defendants and yet they did not file any cross objection against them. In this view of the matter, these finding have become final against the defendants. 15. The only question that needs to be now examined in this appeal is whether the trial Court was justified in dismissing the suit holding that since the plaintiff did not proceed to sell the properties of the defendants immediately after they obtained its possession but sold it after sometime which according to trial Court, resulted in loss to defendants and hence, no further liability could be fastened on the defendants on the strength of loan transaction. 16. With respect, we do not agree to this reasoning of the trial Court, which deserves to be reversed for the reasons given infra in plaintiff's favour and against the defendants. 17. One cannot perhaps dispute that burden to prove these facts was on the defendants because it was their case that due to lapse on the part of the plaintiff in selling the properties in time, the plaintiff received less money. 18. In our opinion, the defendants failed to discharge this burden by not adducing any evidence in its support. The evidence that was needed to discharge this burden was viz (i) what was the price of the land, shed and specific goods at the time of taking possession of such property? (ii) what was its price at the time of its actual sale - (iii) whether it was increased or decreased and if so, to what extent? This could be proved by the defendants by filing copies of sale deeds of the lands sold in adjacent areas in 1985 and 1994. This would have proved the market rate of the land and shed. The defendants were also under obligation to file the complete list of the inventories of the goods along with its description and their market value in 1985 and 1998? The defendants were also under obligation to plead and prove as to what steps did they take against the plaintiff for liquidating their liability such as whether they sent any request letters for early disposal of the property for certain valid reasons and whether they made any effort to bring a buyer for purchase of any property for a better price available ? 19. 19. Indeed except to say that theft took place in the locked premises, and that there was delay on the pm1 of the plaintiff in selling the property, the defendants did not say a word. It is apart from the fact that no documentary evidence of any nature showing any negligence on the part of Bank's officials was filed. Likewise, no details of alleged theft were given and nor any police official was examined to prove the alleged theft. 20. We have perused the evidence of defendants on this issue. So far as DW-1 is concerned, he is one Manoj Parwani. He was examined to prove that he was minor partner of the firm and on attaining majority claimed to have resigned from the firm. His evidence was therefore of no use because he was basically examined to avoid his liability and nothing else. He was not arrayed as the defendant. 21. So far as D.W.-2 is concerned, he is one Rajendra Prasad Khandelwal. He was a Charted Accountant of the defendant - firm. He also said only about the income tax cases of the defendant firm and tried to support the version of D.W.-1. His evidence was also of no use on this issue. 22. So far as D.W.-3 is concerned, he is one Thakur Vijay Singh. His evidence deserves attention and need more discussion. 23. Mr. Thakur Vijay Singh was a lawyer of the plaintiff - Bank in this very case. He gave notice to the defendants on behalf of the plaintiff - Bank (Ex-P-9) for repayment of the plaintiff's dues. He then drafted the plaint and signed it as plaintiffs lawyer. His signatures appear on the original plaint. He appeared in the suit through out as plaintiff's counsel on all the dates of hearing. He also examined all witnesses for the plaintiff by doing their examination-in-chief and then also cross examined defendants' witnesses as plaintiff's lawyer. 24. He was then cited as defendant's witness as D.W. No.3 and this is how, he was examined by the defendants as their witness (DW-3) against the plaintiff to depose on ce11ain issues to show falsity in the case of the plaintiff. 25. It is with these undisputed factual background of the case, the question that arises for consideration is how far and to what extent and on what basis, this Court should rely upon the evidence of DW-3? 26. 25. It is with these undisputed factual background of the case, the question that arises for consideration is how far and to what extent and on what basis, this Court should rely upon the evidence of DW-3? 26. With all humility at our command, we are sorry to say that, we cannot approve of the conduct of Mr. Singh (DW-3), when he appeared as defendants' witness against the interest of his own client - plaintiff and simultaneously appeared as defendants' witness to give evidence against the plaintiff. In our considered view, no law permits such reprehensible conduct of an Advocate against the interest of his own client. 27. An Advocate is morally and legally bound to defend his client's interest as provided in Advocates Act. He is required to ensure fairness and transparency in his dealings consistent with dignity and befitting to the status of this noble and pious profession while giving advice and appearing for his client in the Court. His duty is to fairly advice his client, draft his case (pleadings, applications and affidavit), conduct the evidence and argue to the best of his ability, sincerity, dedication and with absolute fairness. He owes a duty towards his client not to divulge any information which his client has disclosed to him and especially to his clients adversary. The conversation between the advocate and his client is a privileged communication under Section 126 of the Evidence Act. No com1 can compel a lawyer to divulge his communication which he had with his client. It has received judicial protection. 28. Any deviation or breach of this professional code by an Advocate constitutes a misconduct under the Advocates Act, Bar Council of India Act and the Rules framed there under. 29. In the light of what we have held above and on perusal of his oral evidence, we have no hesitation in outrightly disbelieving his evidence which we do with reluctance because to disbelieve a lawyer's statement is the painful duty of the Court. Had it been a statement made by an Advocate while making any submission in his argument then perhaps we would not have hesitated in accepting it without asking for any corroboration but here is a case where Advocate had appeared as witness and that too against his client's own interest. Had it been a statement made by an Advocate while making any submission in his argument then perhaps we would not have hesitated in accepting it without asking for any corroboration but here is a case where Advocate had appeared as witness and that too against his client's own interest. We have to therefore appreciate his evidence as a "witness" and not as an "Advocate" and that too with the background mentioned above. 30. His oral deposition was not supported by any documentary evidence filed by the defendants and hence, the defendants cannot take any benefit of his deposition. It is accordingly rejected being baseless. 31. We are informed that DW-3 is still a practicing Advocate. We, therefore, make it clear that this issue is put to rest by us here itself for all purpose and intent but with a pious hope that it would not recur in future at his instance and he would maintain the highest standard of advocacy and would also ensure observance of high moral ethics in discharge of his duties so that image of profession and institution to which we all belong is maintained. 32. Then comes D.W.-4 Lekhraj Budhwani. His evidence is equally worthless for the reason that firstly he did not file any documents and secondly, he only said that possession of the property was handed over to the Bank in 1985 and at that time, bank officials told him that he is now no longer responsible for any liability arising out of such transaction. Such statement in our opinion does not lead to anywhere. 33. In our opinion, mere delay on the part of creditor in selling borrower's property for liquidating their liability could not give any right per se in favour of the borrower from avoiding their liability which in our view continued to remain intact till fully discharged in accordance with law. In other words, the debtor was to remain liable towards his creditor for the debt liability arising out of loan taken by him subject of course to issue of limitation in filing the suit and further subject to proving the loan transaction etc. 34. In our opinion, the sale of the hypothecated property was one of the mode available to the creditor against their borrower for liquidation of their liability. 34. In our opinion, the sale of the hypothecated property was one of the mode available to the creditor against their borrower for liquidation of their liability. If for any reason, it was not fully accomplished then creditor had a right to take recourse to other modes as provided in law for balance recovery. The only right of the borrower in such case against their creditor was to insist upon their creditor to give adjustment of the sale proceeds recovered by them by sale of the hypothecated properties. We cannot therefore uphold the reasoning of the trial Court, when it held that the plaintiff had no right to make any recovery of loan amount because they took long time to sell it. 35. In the light of our foregoing discussion, while reversing the findings' of the trial Court on this issue, we hold that the defendants failed to prove that firstly there was any delay on the part of the plaintiff in selling the properties and secondly, they also failed to prove that the delay caused any loss to the extent that they were absolved from their liability totally. 36. Now so far as the issue as to whether the plaintiff's Branch Manager committed any irregularities in the transaction which caused loss to the defendants is concerned, suffice it to say, since no evidence of any nature was tendered to prove these facts by the defendants such as how and in what manner, he indulged in any kind of malpractices or committed irregularities so as to cause any loss to the defendants, we cannot place any reliance on such defence. It has to be rejected and is accordingly rejected being totally devoid of any basis. 37. This takes us to the next question as to whether defendant No 4Smt Maina Parwani can be held to be partner of defendant No.1-firm or she has to be held as guardian of minor partner Manoj in the partnership firm? 38. Having perused the evidence on this issue, we have no hesitation in holding that Smt. Maina Parwani was the partner of defendant No.1 -firm and was accordingly liable for all the acts of the defendant No.1-firm in her capacity as partner along with other partners. 39. 38. Having perused the evidence on this issue, we have no hesitation in holding that Smt. Maina Parwani was the partner of defendant No.1 -firm and was accordingly liable for all the acts of the defendant No.1-firm in her capacity as partner along with other partners. 39. In our opinion, the burden to prove this fact was on defendant No.4 and the best evidence to prove this fact was to file either the original extract from the Registrar of firms relating to partnership in question or to file the partnership deed of the firm itself. It was, however, not done. Why it was not done is not known. No explanation was given as to why it could not be filed. To us, it appears that it was deliberately withheld else it would have gone against the defendants. Indeed the defendant No.4 did not even enter into witness box to explain her status. 40. If for some reason, the defendants failed to file the partnership deed, yet a copy of any assessment order or income tax return or balance sheet of the firm in question could have been filed to prove this fact. On the other hand, we notice that in all the exhibits (Ex.P-1 to Ex.P-21), Smt. Maina Parwani made her signature in her individual capacity and obviously, in her capacity as partner but not as guardian of any minor partner. We have therefore no hesitation in drawing an adverse inference against defendant No.4 for deciding this issue against her. 41. In the light of these reasoning, we hold that the defendant No.4 was one of the partner of the defendant No.1 firm and being a partner was equally liable for the acts of the defendant No.1-firm. 42. This takes us to the next question about the liability of the defendant No.1-firm and its partners against the (plaintiff) in transaction in question. 43. This question as to what is the liability of firm and its partners as against their creditor was considered by the Supreme Court in several cases. Justice R.C. Lahoti (as His Lordship then was and later became CJI) in his distinctive style of writing while speaking for the bench on the subject in hand in the case Dena Bank Vs. Bhikhabhai Prabhudas Parekh & Co. and others 2000(5) SCC 694 , laid down following proposition of law: "18. Justice R.C. Lahoti (as His Lordship then was and later became CJI) in his distinctive style of writing while speaking for the bench on the subject in hand in the case Dena Bank Vs. Bhikhabhai Prabhudas Parekh & Co. and others 2000(5) SCC 694 , laid down following proposition of law: "18. The High Court has relied on Section 25 of the Partnership Act, 1932 for the purpose of holding the partners as individuals liable to meet the tax liability of the firm. Section 25 provides 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. A firm is not a legal entity. It is only a collective or compendious name for all the partners. In other words, a firm does not have any existence away from its partners. A decree in favour of or against a firm in the name of the firm has the same effect as a decree in favour of or against the partners. While the firm is incurring a liability it can be assumed that all the partners were incurring that liability and so the partners remain liable jointly and severally for all the acts of the firm. The principle cannot be stretched and extended to such situations in which the firm is deemed to be a person and hence, a legal entity for a certain purpose. The Karnataka Sales Tax Act, with which we are concerned, also gives the firm a legal status by treating it as a dealer and hence a person for the limited purpose of assessing under the Sales Tax Act. It was, 'therefore, held by a three-Judge Bench in CST v. Radhakrishnan (1979) 2 SCC 249 ." 44. Yet in another case reported in Income Tax Officer (III) Circle, Salem and another Vs. Arunagiri Chettia (l996) 9 SCC 33, the question arose as to whether an erstwhile partner is liable to pay the tax arrears due from the partnership firm pertaining to the period when he was a partner. Their Lordship held such partner liable ruled as under : "Section 25 of the Partnership Act does not make a distinction between a continuing partner and an erstwhile partner. Their Lordship held such partner liable ruled as under : "Section 25 of the Partnership Act does not make a distinction between a continuing partner and an erstwhile partner. Its principle is clear and specific, viz., that every partner is liable for all the acts of the firm done while he is a partner jointly along with other partners and also severally. Therefore, it cannot be held that the said liability ceases merely because a partner has ceased to be partner subsequent to the said period. Nor does the absence of a provision corresponding to the proviso to Section 46(2) of the 1922 Act in the present Act (the instant case deals with the provisions obtaining prior to 1-4-1989, i.e. prior to the introduction of Section 188-A) makes any difference to the position, since the liability of the partners to pay the dues of the firm does not arise by virtue of Order 21 Rule 50 of the Code of Civil Procedure, which is attracted by virtue of the said proviso, but on account of the basic premise mentioned hereinabove. Order 21 Rule 50 merely reiterates the said basic premise; it does not create a new liability." 45. These two decisions were relied on by the Supreme Court in later decision in the case of Ashutosh Vs. State of Rajasthan and others (2005) 7 SCC 308 . The learned Judge Ruma Pal Speaking for the Bench held as under : "It is open to a creditor of the firm to recover the debt from any one or more of the partners. Each partner shall be liable as if the debt of the firm has been incurred on his personal liability." 46. In the light of these authorities, we have no hesitation in holding that all the three partners of the firm (defendant no. 1), and its three partners namely original defendant No.2 (since dead), defendants 3 & 4 were/are liable jointly and severally for the acts done by the firm and were/are answerable for the liability arising out of this case in their capacity as partners of the defendant No.1 firm qua plaintiff as their creditor. Since the defendant No.2 is now dead and hence, his liability will be governed as per law qua his legal representatives and accordingly, the legal representatives would be proceeded against. 47. Since the defendant No.2 is now dead and hence, his liability will be governed as per law qua his legal representatives and accordingly, the legal representatives would be proceeded against. 47. It has come in evidence that the plaintiff sold the land/shed and machinery for Rs.2,61,000/- and hence, the defendants would be entitled to claim adjustment of this amount (Rs.2,61,000/-) out of the total decreetal amount passed against them. 48. We are therefore of the considered opinion that the appellant (plaintiff) has been able to prove their case as pleaded in the plaint against the defendants. Since the trial Court had already held this issue in plaintiff's favour and hence, in view of reversal of trial Court finding on the other issues in plaintiff's favour as held supra, the plaintiff's suit has to be decreed against the defendants jointly and severally. 49. In view of foregoing discussion, the appeal succeeds and is allowed in part with cost through out. The impugned judgment and decree is set-aside and instead the suit filed by the plaintiff stands decreed by passing a decree for Rs.9,13,630/- in plaintiff's favour and against the defendants jointly and severally. The plaintiff is also held entitled to claim and recover the interest pendente lite on the decreetal sum from the date of suit till realization at the rate of 6%. However, as held supra, a sum of Rs.2,61,000/- already recovered by the plaintiff by sale of the defendants' property will be adjusted against the total decreetal amount and balance amount would be recoverable from the defendants. Appeal Allowed.