IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 SA.No. 813 of 1997() ----------------------------- A.S. NO.13/1995 OF SUB COURT, MUVATTUPUZHA. OS.447/1991 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/DEFENDANT ----------------------------------------------------------- MARIAMMA KURIAN, D/O. KURIAN, THENGANAKUDIYIL, JEKKADAMPU POST, KUNNACKAL KARA, VALAKAM VILLAGE, MEENACHIL TALUK, MUVATTUPUZHA BY ADV. SRI.K.SAJAN VARGHESE RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- ST.MARY'S FINANCIERS, KURUPPAMTHAR, REP.BY ITS MANAGING PARTNER, THOMAS GEORGE, S/O. GEORGE, OONNUKKALLUM THOTTIYIL, KURUVILANGADU KARA & VILLAGE, MEENACHIL TALUK. ADV. SRI.BABY KURIEN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON 27/07/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 813 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2010. JUDGMENT The defendant, who suffered a money decree at the hands of the Munsiff's Court, Muvattupuzha in O.S. 447 of 1991 and who had his appeal dismissed by the lower appellate court is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, the defendant received a sum of Rs.5,000/- on the basis of Ext.A2 promissory note on 28.8.1987. He had to pay interest at 18% per annum. Repeated demand for repayment did not yield any response. Finally on 9.8.1990 the defendant paid a sum of Rs.700/- towards the debt. Balance amount remains to be paid. Since the defendant showed no inclination to pay the amount, the suit was laid. S.A. 813/1997. 2 3. The defendant resisted the suit. It was pointed out that he had not received any amount from the plaintiff and that the promissory note had not been executed by him. He also denied having paid any amount as alleged in the plaint. He therefore prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants did not adduce any evidence. 5. The trial court on an evaluation of the evidence found that the promissory note had infact been executed by the defendant and decreed the suit. The defendant carried the matter in appeal as A.S. 13 of 1995 before the Sub Court, Muvattupuzha. The lower appellate court confirmed the decree of the trial court. 6. The following questions of law are seen raised in this Second Appeal: S.A. 813/1997. 3 “1. Whether the plaintiff/respondent has succeeded in proving that it is a registered partnership concern, and has it been properly represented by persons as contemplated in Order XXX of Code of Civil Procedure? 2. Are the courts below justified in upholding the contentions contained in plaint in a summary manner and without giving reasonings? 3. Are the courts below justified in assuming the disputed signatures as genuine even in the absence of an expert witness? 4. Are the courts below legally correct in decreeing the suit exclusively on the basis of interested witness? 5. Are the courts below legally correct in holding that the suit is not barred by limitation? 6. Are the courts below legally correct in decreeing the suits? 7. Are the courts below legally correct in analysing the evidence and finding that Ext.A2 promissory note has been executed by the defendant/appellant?” 7. Learned counsel appearing for the appellant pointed out that the suit itself is not maintainable since it is S.A. 813/1997. 4 not shown that the partnership is a registered one and the requirements under Section 69(2) of the Indian Partnership Act had not been complied with. If the partnership is not a registered one, then necessarily the requirements under Order XXX Rule 1 had to be complied with and that has not been done in the present case. He therefore contended that on the very face of it the suit is not maintainable. It is also pointed out that the so-called payment of Rs.700/- on 9.8.1990 was specifically denied and the plaintiff had not produced any document to substantiate his claim. Therefore, even assuming that the promissory note was executed by the defendant, the suit is barred by limitation. 8. Learned counsel appearing for the respondent contended that there was no contention before the court below that the suit was not maintainable due to any reason. P.W. 1 has been examined on behalf of the plaintiff and he had spoken about the case of the plaintiff. The defendant had not gone into the box and that calls for drawing an adverse inference against him. According to learned S.A. 813/1997. 5 counsel, no grounds are made out interfere with the judgment and decree of the court below. 9. Section 69 of the Indian Partnership Act reads as follows: “69.Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect.- S.A. 813/1997. 6 (a) the enforcement or any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner. (4) This Section shall not apply,- (a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories, are situated in areas to which, by notification under section 56, this Chapter dos not apply, or (b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause courts Act, 1882, or outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts At, 1887, or to any proceeding in execution or other proceeding S.A. 813/1997. 7 incidental to or arising from any such suit or claim.” Order XXX Rule 1 reads as follows: “1. Suing of partners in name of firm.- (1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. (2) Where persons sue or are sued as partners in the name of their firm under sub-rule(1), it shall, in the case of any pleading or other document required by or under this code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons. ” S.A. 813/1997. 8 10. There is no averment in the plaint that the partnership firm is a registered one. No documents are also produced to show that the firm is a registered one and the person who has instituted the suit was the partner of the firm at the relevant time. No document regarding the registration are seen produced. 11. Therefore, the suit has to be treated as one filed by an unregistered firm and the provisions of Order XXX Rule 1 CPC are attracted. The provision has already been referred to above. Order XXX Rule 1 has to be treated as the enabling provision. According to that provision, two partners of the unregistered firm can lay a suit on behalf of the firm. This enables the firm from not having to array all the partners in the suit as plaintiffs. In the case on hand that is also not complied with. 12. The above two questions are questions of law and the defendant can raise it at any point of time before the court. As already stated, there is no case in the plaint that the partnership is a registered one and as could be seen S.A. 813/1997. 9 there has been a violation of Order XXX Rule 1 of the Code also. It would then be necessary to array all the partners of the firm as parties in the suit. But in the case on hand, the so-called Managing Partner alone has come on record and that is not sufficient in law in view of Order XXX of CPC. Suit was therefore not maintainable at all. 13. The plaintiff has to lose on the second contention raised by the learned counsel for the appellant. The defendant had specifically disputed that she had ever executed Ext.A2 or made any payment towards the debt. It is an admitted case that the plaintiff is a money lending concern. Surely they would have documents with them to show the advancing of the loan and the payment of Rs.700/- as on 9.8.1990. None of those documents are produced by the plaintiff. No reasons are also offered. That means that an adverse inference will have to be drawn against the plaintiff. The oral evidence of the plaintiff alone may not be sufficient when the defendant denied the execution of S.A. 813/1997. 10 Ext.A2 and that she had made payment of Rs.700/- on 9.8.1990. 14. The mere fact that the defendant has not gone into the box therefore can be of no help to the plaintiff. It is significant to notice that the case of the plaintiff is that the promissory note was executed at his office and the defendant came to the office accompanied by another person. It is also stated that the promissory note was executed and taken Rs.700/- paid in the presence of a client in the office. If that be so, that person could have been examined. When there was specific denial of Ext.A2 document, even assuming it contains the signature of the defendant, that by itself is not sufficient to hold in favour of the plaintiff. The plaintiff has failed to adduce sufficient evidence to show that the defendant had executed promissory note and received money from him. In the above circumstances, this appeal is allowed, the impugned judgment and decree are set aside and the S.A. 813/1997. 11 suit shall stand dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.