IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 SA.No. 676 of 1997(E) -------------------------------- AS.148/1991 of IST ADDL.DISTRICT COURT, THRISSUR OS.2388/1985 of I ADDL.MUNSIFF COURT, THRISSUR .................... APPELLANT(S): RESPONDENTS NOS. 1 & 2/ PLAINTIFFS ---------------------------------------------------------------------------------- 1. VASUDEVAN, S/O. AKAMPARAMBIL VELAYUDHAN, KARIATTUKARA DESOM, ARANATTUKARA VILLAGE, TRISSUR TALUK. 2. SARASWATHY, W/O. VASUDEVAN, AKAMPARAMBIL HOUSE, KARIATTUKARA, TRISSUR. BY ADVS. SRI.T.M.CHANDRAN SMT.K.R.MANJULA RESPONDENT(S): APPELLANT- RESPONDENT NO.3/DEFENDANT NOS. 13 & 3 --------------------------------------------------------------------------------------------------------------- 1. THOMAS, S/O. CHEENATH POULOSE, VALLACHIRA VILLAGE, DESOM, TRISSUR TALUK. 2. CHANDRAN, S/O. THARAYIL VELAYUDHAN, OLLUR, THRISSUR. BY ADV. SRI.N.P.SAMUEL FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID, J. ========================= S.A.No.676 OF 1997 ====================== Dated this the 5th day of August, 2010. JUDGMENT The plaintiffs in O.S.No.2388 of 1985 on the file of the Munsiff Court, Thrissur, are the appellants. The appeal is directed against the judgment and decree dated 29.11.1996 in A.S.No.148 of 1991 of the I Additional District Court, Thrissur. The suit was filed for reaslistion of Rs.11,772.51/- paise with interest and costs. The trial court decreed the suit directing the defendants to pay the said sum with interest at the rate of 6%. The 13th defendant filed appeal. The lower appellate court set aside the decree and judgment as against the appellant and dismissed the suit as against the appellant, who is the 13th defendant. The parties hereinafter are referred to as plaintiffs and defendants. 2. The 1st defendant is Samgamam Traders. Defendants 2 to 14 are impleaded as partners of the 1st defendant firm. The 1st defendant is a partnership firm dealing in money lending business. It is the plaintiffs' case that on 12.8.1983 the first defendant firm borrowed an amount of Rs.5,000/- from the 1st plaintiff, agreeing to repay it on demand with 9% interest and that S.A.No.676 OF 1997 2 on 10.3.1984 the firm borrowed a sum of Rs.5,000/- from the second plaintiff on the same terms and in consideration of the money received, the first defendant firm gave two promissory notes to the plaintiffs. The said promissory notes are marked as Exts.A1 and A2. 3. The defendant Nos.3 and 13 filed written statements. In the written statement filed by the 3rd defendant it is stated therein that the first defendant firm closed its business in April 1983 and after that there was no transaction with anybody. He denied execution of the promissory notes and contended that the promissory notes produced are not genuine documents. He also contended that all the partners of the firm are not made parties to the suit and hence the suit is bad for non jointer of necessary parties. 4. The 13th defendant contended inter alia that he is not a partner of the firm that he was not aware of the plaint transaction, that the promissory note is bad for material alteration and therefore, the plaintiffs are not entitled to recover any amount from the 13th defendant. 5. The first plaintiff was examined as PW1, third S.A.No.676 OF 1997 3 defendant as DW2 and 13th defendant as DW1. Exts.A1 to A8 are marked on the plaintiffs' side. 6. Exts.A1 and A2 pro notes are dated 12.8.1983 and 10.3.1984. PW1, the first plaintiff deposed before the court that on 12.8.1983 and 10.3.1984 the plaintiffs advanced a loan of Rs.5,000/- each to the first defendant firm. It is further deposed that in consideration of the amount received, Exts.A1 and A2 promissory notes signed by the Chairman, Manager and Deputy Chairman were given to the plaintiffs. The 13th defendant who was examined as DW1 contested the suit. According to him he is not a partner of the first defendant firm and he is not aware of the plaint transaction. He also contended that the stamps were affixed on Exts.A1 and A2 after execution and Exts.A1 and A2 are bad for material alteration. When 13th defendant was examined as DW1 he testified that he did not sign Ext.A8 partnership deed and denied the signature contained in Ext.A8. The trial court compared the signature of DW1 as found in Ext.A8 and other admitted documents. The trial court found that the signature in Ext.A8 and other admitted signatures perfectly tally. Ext.A8 S.A.No.676 OF 1997 4 is a partnership deed dated 22.9.1983. DW2 is the Deputy Chairman of the partnership firm. He has no case that 13th defendant is not a partner of the firm. It has come out in evidence that Ext.A8 deed was executed on 22.9.1983 consequent to the death of one of the partners and that partnership deed is a continuation to the earlier partnership. 7. The trial court on appreciation of the evidence held that the contention of the 13th defendant that he is not a partner, is without any substance and that the contention is false. DW2 also testified that all the persons whose names were entered in Ext.A8 are partners of the first defendant firm. The trial court held that the evidence of DW2 shows that persons whose names occur in Ext.A8 are partners in 1st defendant firm. The trial court after relying on the depositions of DWs.1 and 2 and Ext. A8 held that 13th defendant is a partner in the first defendant firm. The trial court also considered the contention of the 13th defendant as to whether Exts.A1 and A2 are bad for material alteration. The trial court held that the first defendant firm unconditionally undertaken to pay the amounts borrowed S.A.No.676 OF 1997 5 from the plaintiffs and that the Chairman, Manager and Deputy Chairman had signed Exts.A1 and A2. 40 paise stamps each were affixed on Exts.A1 and A2. After taking into account all the materials on record the trial court held that there is no bonafides in the contention raised by the 13th defendant and that Exts.A1 and A2 are bad for material alteration. 8. The lower appellate court in the appeal preferred by the 13th defendant, set aside the decree and judgment as against him. The main reason stated by the lower appellate court is that going by Ext.A8 partnership deed there is nothing to show that the parnership as claimed is in existence at all and the findings of the court below is therefore clearly unsustainable. The above said findings entered by the lower appellate court is against facts and evidence. In page No.2 of Ext. A8, it is stated that the partnership firm is in existence prior to the execution of Ext.A8 deed. Statements in Ext.A8 itself shows that partnership firm was in existence prior to Ext.A8 and that it is a reconstitution deed. The 13th defendant is one of the partners of the 1st defendant firm and S.A.No.676 OF 1997 6 it is stated so in Ext. A8 partnership deed. The 13th defendant has taken the extreme contention that he is not a partner and denied the signature in Ext.A8. The trial court on the basis of oral and documentary evidence found that he is a partner of the first defendant firm and he is a signatory to Ext.A8 partnership deed. It has come out in evidence that the partners were doing the very same business before Ext.A8 and that Ext.A8 is a continuation of their business done earlier. Either in the writen statement filed by the third defendant and when he was examined, he has no case that the 13th defendant is not a partner of the first defendant firm. The appellate court failed to read the terms in Ext.A8 partnership deed. The appeal was allowed mainly for the reason that the partnership firm came into existence with effect from 1.9.1983 and that Ext.A1 promissory note was executed before the firm was born. I have discussed the oral and documentary evidence adduced by the parties. In the first appeal filed by the 13th defendant, he only impleaded the plaintiffs and the 3rd defendant alone. The other defendants, as against whom the decree was passed by the S.A.No.676 OF 1997 7 trial court, were not impleaded in appeal. From the forgoing discussion, it can be seen that reversal of the decree as against 13th defendant is bad in law. The plaintiffs are entitled to the decree as against the partners of the first defendant firm. In the result, the appeal is allowed. Judgment and decree passed by the lower appellate court is set aside. The judgment and decree passed by the trial court is restored. There is no order as to costs. HARUN-UL-RASHID, JUDGE. mns