IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 AS.No. 721 of 1994() -------------------------- OS.423/1991 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PLAINTIFF: ----------------------------------- M/S. ALPHA PLASTICS, A REGISTERED PARTNERSHIP FIRM HAVING ITS' OFFICE AT SWARGAM ROAD, DESOM. ALWAY - 19, REPRESENTED BY ITS MANAGING PARTNER, T.K.SHAJI, S/O.T.S.KRISHNAN, RESIDING AT DESOM, ALWAYE. BY ADVOCATE MR.V.V.SURENDRAN RESPONDENT/DEFENDANT ---------------------------------------- K.V.ANISH, S/O. HARIDAS, CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF M/S. KRISHNAN ENTERPRISES, 2/82, KARAPARAMBA, CALICUT - 10 AND RESIDING AT “NISHA”, KARAPARAMBA, CALICUT - 10. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== A.S.No. 721 of 1994 ================== Dated this the 19th day of March, 2009. O R D E R Plaintiff in O.S. No. 423 of 1991 on the file of the Sub Court, North Paravur is the appellant herein. A registered firm through its managing partner instituted the suit for realisation of Rs.26,404.96 with interest, which is the balance amount due from the respondent on account of purchase of articles under Ext.A3 invoice. Appellant contended that out of the amounts due, Rs.5,000/- was paid on 3.4.1989 and in spite of demand balance due was not paid and therefore appellant is entitled to realise the amount. 2. Respondent resisted the suit contending in the written statement that the signatory to the plaint is not competent to institute the suit and it is for the appellant to prove that appellant firm is a registered firm and the signatory is shown in the Register of Firms. It is also contended that there was no transaction as alleged and respondent did not purchase any goods and he is not liable to pay any amount. 3. The learned Sub Judge on issue No.2 found that A.S.No. 721 of 1994 -2- appellant is entitled to the amount claimed in the plaint under Ext.A3 invoice as the value of goods purchased and under Ext.A6 reply send by him, he admitted the liability to pay Rs.24,471.90 due under Ext.A3 and also admitted that a demand draft for Rs.5,000/- was send and therefore overruled the defence that respondent did not purchase any goods. It was found that respondent is liable to pay the amount shown in Ext.A3 invoice less Rs.5,000/- admittedly paid. Under issue No.3 learned Sub Judge found that Ext.A3 provides for payment of interest and rate of interest at 12% per annum claimed in the plaint is not exorbitant. But on issue No.1 whether the suit is maintainable, learned Sub Judge found that though Ext.A1 copy of the partnership deed dated 30.6.1986 shows that PW1 the signatory to the plaint was one of the managing partners, Ext.A2 only shows that the firm was registered in the Registrar of Firms and it does not show that name of PW1 is shown in the Register of Firms and therefore the suit is barred under Sub Section 2 Section 69 of the Indian Partnership Act. Relying on the decision of a learned Single Judge of this Court in Bharath Trust v. Divakara Rao [1992(2)KLT 493], it was found that on the A.S.No. 721 of 1994 -3- failure of the appellant to prove that his name is shown in the Register of Firms as a partner, the suit is not maintainable. Consequently, the suit was dismissed. It is challenged in the appeal. 4. As notice could not be served personally on the respondent this court permitted to serve the notice by paper publication. Service of notice was declared sufficient. The respondent did not appear. 5. The learned counsel appearing for the appellant was heard. The learned counsel pointed out that though the learned Sub Judge found all issues in favour of the appellant except the issue on the maintainability of the suit, the suit was dismissed for the reason that though appellant firm is proved to be a registered partnership firm, it is not proved that the name of PW1, the signatory to the plaint in his capacity as the managing partner of the firm was shown as a partner of the firm in the Register of Firms and therefore the suit is not maintainable. The learned counsel pointed out that in the appeal, along with C.M.P. No. 4464 of 1994, an application filed under Rule 27 of Order XLI of Code of Civil Procedure appellant has produced two A.S.No. 721 of 1994 -4- documents obtained subsequent to the disposal of the suit by the trial court. The first document obtained from the Registrar of Firms establish that Ext.A1 partnership deed was registered before the Registrar of firms on 30.6.1986 and subsequently on 12.7.1991 there was a change in the constitution of the firm by induction of one more partner. It also shows that the firm was registered and the name of the firm was shown in the Register of Firm on 30.6.1986 inclusive of the names of all partners. It proves that the signatory to the plaint, who was examined as PW1, was shown as one of the partners. By the reconstitution of the firm on 12.7.1991, the 5th partner was added to the partnership firm. Even that reconstitution was subsequent to the institution of suit. The learned counsel argued that the said document may be received as additional evidence as the document could not be produced before the trial court and is necessary to pronounce a better judgment. 6. It is the specific contention of the appellant in the plaint that signatory to the plaint is the Managing partner of the appellant partnership firm. It is also pleaded in the plaint that it is a registered partnership firm. In the written statement A.S.No. 721 of 1994 -5- respondent has denied the very transaction eventhough the transaction was admitted by the respondent in Ext.A6 reply, including the payment of Rs.5,000/- by demand draft towards the value of the articles purchased under Ext.A3 invoice. In the written statement along with the denial of the transaction, it was pleaded that appellant firm is not a registered firm and signatory to the plaint is not shown in the Register of the firms. When Ext.A1 was produced before the trial court along with Ext.A2 establishing that the signatory to the plaint was one of the managing partners under Ext.A1 partnership deed and the said partnership was registered before the Registrar of Firms in 1986 itself, in the absence of other evidence to prove that the partners of Ext.A1 are not shown in the Register of Firms, learned Sub Judge was not justified in finding that the PW1, the signatory to the plaint is not proved to have been shown in the Register of Firms as a partner. Whatever it be, in the appeal appellant has produced the certified copy obtained from the Registrar of Firms establishing that the name of the appellant is shown as one of the partners of appellant firm in the Register of Firms as on 30.6.1986. Though the firm was subsequently reconstituted on A.S.No. 721 of 1994 -6- 12.7.1981, it was subsequent to the institution of the suit, as the suit was instituted on 6.7.1991. Though appellant did not satisfactorily explained the reason why the additional document was not applied for and produced before the trial court, as the document is required to pronounce a satisfactory judgment it is to be received as additional evidence under clause b of sub rule 1 of Rule 27 of Order XLI of the Code of Civil Procedure. Hence C.M.P. No. 4464 of 1994 is allowed and the document produced along with the application is received as additional evidence under Clause b of Sub Rule 1 of Rule 27 of Order XLI of Code of Civil Procedure and marked Ext.A10. 7. Ext.A10 conclusively establish that signatory to the plaint was shown as one of the partners of the appellant firm, in the Register of Firms and it is a firm registered before the Registrar of Firms under Section 59 of the Partnership Act as proved by Exts.A2 and A10. Learned Sub Judge has rightly found all other issues in favour of the appellant. Appellant is therefore entitled to the decree as sought for. The appeal is allowed. The judgment of Sub Court, North Paravur in O.S. No. 423 of 1999 is set aside. O.S. No. 423 of A.S.No. 721 of 1994 -7- 1992 is decreed. Respondent/defendant is directed to pay Rs.26,404.96 with interest at 12% per annum on Rs.19,471.90 from 6.7.1991 and cost. M.SASIDHARAN NAMBIAR JUDGE rhs