1 S. 2452.97.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2452 OF 1997 M/s. Hasaneli Saleh Mohomed & Co. a registered Partnership firm having its registered office at 9, Kailash Darshan, Kennedy Bridge, Mumbai – 400 007. ... Plaintiffs. V/s. Raju Hiranand Muthreja, Indian Inhabitant, Sole Proprietor of Deep Investment, carrying on Business at Manish Nagar, Building No.46, Andheri (West), Mumbai. ... Defendant. Mr. Kunal Bhanage for the Plaintiffs. None for the Defendant. CORAM : R.Y. GANOO, J. DATED : 10th MARCH 2011. ORAL JUDGMENT :- The Plaintiffs – a partnership firm have filed this Suit for recovery of Rs.1,70,000/- and for other reliefs such as interest and costs as set out in prayer clauses (a) and (b) respectively. The Writ of Summons was served upon the Defendant. The Defendant remained absent. The Suit was treated as uncontested Suit and is being disposed of by this order. 2. Few facts necessary for the disposal of the Suit are as under :- 2 S. 2452.97.sxw The Plaintiffs, a partnership firm carries on business in shares, securities, precious and semi-precious stones and commission agents. According to the Plaintiffs, the Defendant was the sole proprietor of “Deep Investments”. According to the Plaintiffs, the Defendant entered into an arrangement with the Plaintiffs whereby the Defendant used to discount post- dated cheques with the Plaintiffs against the current cheques issued by the Plaintiffs. He used to make the payment of discounting charges at the rate of 2% per annum. 3. On 30th June 1994, the Defendant telephonically requested the Plaintiffs for a sum of Rs.1,00,000/- and assured that he would forward a post-dated cheque dated 30th August 1994 alongwith the discounting charges. Based on this representation, the Plaintiffs issued in favour of the Defendant cheque dated 30th June 1994 bearing No. 447051 for Rs. 1,00,000/- drawn on Bombay Mercantile Co-operative Bank Ltd. 4. According to the Plaintiffs, the Defendant issued in favour of the Plaintiffs a cheque of Rs.2,000/- being a discounting charges. He failed and neglected to pay the sum of Rs.1,00,000/- as assured by him. On realizing that the Defendant is not repaying Rs.1,00,000/-, the Plaintiffs through their Advocate sent a demand notice dated 18th October 1995 and the said notice is at Exhibit P-1. Despite such a demand, the Defendant failed to pay the amount and hence, this Suit is filed. 3 S. 2452.97.sxw 5. Looking to the facts pleaded in the plaint, it became necessary for the Plaintiff to lead evidence in support of their case. Consequently, the Plaintiffs examined their partner by name Akbarali H. Tobacowala. Evidence of said partner Akbarali Tobacowala, PW-1 was recorded. The Defendant remained absent at the time of recording of evidence. The Plaintiffs had tendered to the Court only two documents in support of their case. Exhibit ‘P’ is the statement of account issued in favour of the Plaintiffs by Bank “Bombay Mercantile Co-operative Bank Ltd., Kemp’s Corner Branch for the period 1st July 1994 upto 27th July 1994. The second document is Advocate’s notice dated 18th October 1995 at Exhibit ‘P-1’. No other witness was examined on behalf of the Plaintiffs. No witness was examined on behalf of the Defendant. 6. Learned Counsel Mr. Bhanage appearing on behalf of the Plaintiffs drew my attention to the statement of account viz. Exhibit ‘P’ and pointed out that on 1st July 1994, one finds a debit entry to the tune of Rs.1,00,000/- in the account of the Plaintiff and the said debit entry is on account of Cheque No. 447051. Learned Counsel appearing on behalf of the Plaintiffs took me through the evidence of Akbarali Tobaccowala, PW-1 as also the plaint to point out the case of the Plaintiffs that said cheque bearing No.447051 was issued by the Plaintiffs in favour of the Defendant as and by way of the transaction of loan. Learned Counsel for the Plaintiffs submitted that this document at Exhibit ‘P’ and the entry dated 1st July 1994 is 4 S. 2452.97.sxw sufficient to hold that the Plaintiffs had advanced to the Defendant a sum of Rs.1,00,000/-. He further submitted that the demand notice also indicated the facts as regards advancement of a loan and non-payment of the said loan. He further submitted that the evidence of Mr. Akbarali Tobaccowala, PW-1 has gone unchallenged and therefore, the Court should hold that the Defendant did receive a sum of Rs. 1,00,000/- by way of a loan and has not repaid the same. He, therefore, submitted that the Plaintiffs’ case should be accepted and the decree as prayed be passed. 7. I have considered the record as well as the submissions of learned Counsel for the Plaintiffs. Even if the word of Mr. Akbarali Tobaccowala, PW-1 has gone unchallenged that does not mean that the case of the Plaintiffs should be accepted in toto. It is the duty of the Plaintiffs to satisfy the Court by placing before the Court adequate material and only after satisfaction of it, the case of the Plaintiffs can be accepted. 8. In support of the case of the Plaintiffs that a sum of Rs. 1,00,000/- was advanced to the Defendant except the bare word, there is no other material. In the normal course, if a person is handing over a sum of Rs.1,00,000/- there ought to have been some document or some writing to show that the Defendant had received a sum of Rs.1,00,000/- through the cheque as alleged. No such writing is produced. It was easily possible for the Plaintiffs to produce the counter-foil of the said cheque to show that the said cheque was issued in the 5 S. 2452.97.sxw name of the Defendant. The Bank statement only shows that a cheque bearing No.447051 for a sum of Rs.1,00,000/- has been debited to the account. Who received said payment has not been mentioned in the said Bank statement. In order to show that the sum of Rs.1,00,000/- was paid to the Defendant, it was easily possible for the Plaintiffs to produce proper record from the bank including the cheque itself to show that the cheque for Rs.1,00,000/- issued in favour of the Defendant, it was honoured and the monies were paid to the Defendant. A mere entry in the statement of account of the Plaintiffs as regards debit of Rs.1,00,000/- is not sufficient to accept the word of the Plaintiffs that the monies were advanced to the Defendant. 9. It is required to be noted that the Plaintiffs is the partnership firm and in such a case in the normal course they would maintain books of accounts. Hence, that was another material which could have been produced before the Court to support their case. In short, in the absence of any material whatsoever to show that the sum of Rs.1,00,000/- was advanced to the Defendant, the bare word of Akbarali Tobaccowala, PW-1, the partner of the Plaintiffs cannot be accepted. To that extent, the Plaintiffs have failed to make out the case. The Plaintiffs have failed to make out the case that they had advanced Rs.1,00,000/- to the Defendant. 10. In the plaint at para 1 there is a specific averment that the Plaintiffs are a partnership firm duly registered under the 6 S. 2452.97.sxw said Act. On account of this, it was mandatory for the Plaintiffs to produce registration certificate under Indian Partnership Act, 1932. The Plaintiffs have not produced the registration certificate before the Court and on account of non-production of registration certificate, the Suit is not maintainable. To the facts of this case, bar under Section 69 of the Indian Partnership Act, 1932 would be applicable. 11. For the reasons mentioned aforesaid, I hold that the Plaintiffs have failed to make out the case to have a decree in their favour. 12. Hence, I pass the following order :- (i) Plaintiffs’ Suit is dismissed. (ii) There shall be no order as to costs. (R.Y. GANOO, J.)