IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 SA.No. 482 of 1997(G) ------------------------------- [AS.NO.77/1990 OF SUB COURT, CHERTHALA, OS.NO.284/1987 OF ADDL.MUNSIFF COURT,CHERTHALA] .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- 1. ASWATHI FINANCE, CHERTHALLA. 2. ASWATHY FIANANCE – BY MANAGING PARTNER, K.M. MATHAI, KOOTHUNGAL, CHERTHALLA KIZHAKKUMMURI, KOKKOTHAMANGALAM VILLAGE. 3. ASWATHI FINANCE – BY CHAIRMAN (PARTNER) K.K. THOMAS, RESIDING AT KOYIKKARAPUTHENVEETTIL, C.M.C. WARD NO. 18, CHERTHALLA. BY ADVS. SRI.A.K.MADHAVAN UNNI, SRI.G.ANIL. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. BALACHANDRAN, S/O. PARAMESWARAN PILLAI, RESIDING AT KUZHIYIDATHU VEETTIL, KADAKKARAPPALLY PANCHAYATH, WARD NO.9, KADAKKARAPPALLY MURI, VAYALAR, MEKKU VILLAGE. 2. RAJAGOPAL, RESIDING AT JAYA VILAS, KADAKKARAPPALLY PANCHAYATH WARD NO.4, DO. MURI. 3. NARASIMHAPRABHU PADMANABHA PRABHU, CHANNAMCHARRIL C.M.C. WARD NO.19, CHERTHALLA VADAKKU VILLAGE, VADAKKUM MURI. R3 BY ADV. SRI.RAJU JOSEPH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- SA No.482 of 1997-G ------------------------------------- Dated 19th July 2010 Judgment Faced with the concurrent findings against him, the plaintiffs in OS No.284/87 before the Munsiff's Court, Cherthala, has come up in appeal. 2. The suit was based on Ext.A1 promissory note for a sum of Rs.20,000/-. The plaintiffs claimed that the defendants had borrowed a sum of Rs.20,000/- from them on 21.04.1984, after executing Ext.A1 promissory note. According to the plaintiff, an amount of Rs.8,527.61 was due from the defendants. Since the said amount was not paid, in spite of several demands, the suit was laid. 3. The defendants resisted the suit, pointing out that they borrowed a sum of Rs.18,000/- and the amount was to be repaid in instalments of Rs.200/- per day. They claimed to have discharged the entire debt and pointed out that the signed blank paper obtained from them was used SA 482/97 2 to concoct the promissory note. It was also contended that the plaintiffs' firm is not a registered firm. On the above grounds, they prayed for a dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants did not adduce any evidence. Both the Trial Court as well as the First Appellate Court non suited the plaintiffs on the basis that there is violation of S.69(2) of the Indian Partnership Act. While the Trial Court did not consider the question of the amount due to the plaintiffs, the lower Appellate Court considered that question and found that the defendants executed the promissory note after receiving Rs.20,000/-. Both the courts below considered the evidence, accepted that an amount of Rs.8,527.61 was due and accordingly, dismissed the suit. 5. The learned counsel for the appellants submitted that the courts below were not justified in non- SA 482/97 3 suiting the plaintiffs under S.69(2) of the Partnership Act. It is stated that the partnership firm was duly registered under the Partnership Act. The acknowledgment of registration certificate was produced before the Trial Court. It was at the appellate stage that the partnership deed was produced. According to him, the courts below were not justified in dismissing the suit. 6. Per contra, the learned counsel for the respondents pointed out that it is not sufficient to produce documents to show the registration of the firm and also the partnership deed. The plaintiffs were bound to show that at the relevant time, the persons who laid the suit, were partners of the firm. That condition was not satisfied and the courts below were justified in non-suiting the plaintiffs. 7. Though the above argument may seem to be attractive at the first blush, on going through the pleadings and evidence, it can be seen that it is without any basis. The plaintiffs had specifically averred in the plaint that the firm was properly registered under the Partnership Act and SA 482/97 4 the persons who filed the suit were, at that time, partners of the firm. All that was denied was that the plaintiffs' firm was a registered firm and there was no specific denial of the averment in the plaint that the plaintiffs were partners of the firm at the time of institution of the suit. It needs to be noticed that except denying the allegations in the plaint, the defendants did not adduce any evidence. An allegation which is not specifically denied, is deemed to have been admitted. This vital aspect has been lost sight of by the courts below. Therefore, the courts below were not justified in dismissing the suit. 8. On the issue regarding the promissory note, the lower Appellate Court has found that the claim of the plaintiff that an amount of Rs.8,527.61 is due to the plaintiffs, is correct. The lower Appellate Court has rightly observed that once the defendants have pleaded discharge, the burden was on them to establish that fact and they had not done so. Moreover, they did not adduce any evidence. It was under those circumstances that the SA 482/97 5 court below accepted the case of the plaintiffs as far as the amount due is concerned. There is no reason to take a different view in that regard. 9. In the result, the Judgment and decree of the courts below are set aside and a decree is passed on the following terms: The plaintiffs are entitled to realise a sum of Rs.8,527.61 from the defendants, jointly, severally and personally from their assets with future interest @ 6% on Rs.5,700/- from the date of institution of the suit till the date of payment. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA 482/97 6