FA/900/1986 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 900 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = AMRATLAL CHUNILAL BHANDARI Versus KANTILAL BHIKHABHAI PATEL & 2 ========================================= = Appearance : SERVED for Appellant NOTICE SERVED for Respondents No. 1 - 3. ========================================= = CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT 1. By way of present appeal, the appellant – original plaintiff has challenged the judgment dated 28.02.1984 passed by the FA/900/1986 2/7 JUDGMENT City Civil Judge, Court No.19, City Civil Court, Ahmedabad, in Civil Suit No.2272 of 1982 whereby the learned City Civil Judge dismissed the said suit with costs. 2. The facts in brief, as emerging from the record, are as under. 2.1 The appellant, original plaintiff – a partnership firm had filed a suit being Civil Suit No.2272 of 1982 before the City Civil Court, Ahmedabad against the respondents, original defendants, praying for recovery a sum of Rs.9,000/- along with interest at the rate of 15% per annum till the payment and costs of the suit. 2.2 The trial Court, after considering the entire evidence on record, dismissed the suit of the appellant – plaintiff vide the impugned judgment. Hence, this appeal. 3. Though served, nobody appears on behalf of the respondents. 4. It is the case the appellant that the Court below has erred in holding that the original defendants No.2 and 3 being FA/900/1986 3/7 JUDGMENT the respondents No.2 and 3 herein were not partners of the original defendant No.1 (firm), being the respondent No.1 herein. It is the case of the appellant that the Court below has erred in not considering that the respondent No.2 as partner of the respondent No.1 has endorsed in the appellant's account book acknowledging the dues of the appellant from Kartak Sud one of the Samvat Year from Kartak Sud one of the Samvat Year 2034. That saves the limitation. It is a mistake to say that it is not adequately stamped for the purpose of an acknowledgment at Ex.40. It is the case of the appellant that the Court below has erred in not considering that the respondents No.2 and 3 were earlier purchasing goods from the appellant under the name and style of another firm and were, thereafter, purchasing goods in the name of the present firm. It is further the case of the appellant that the Court below has erred in not considering that the account books of the appellant have been signed by the respondents No.2 and 3 at different stages for the different transactions of the purchase of the goods. It is also the case of the appellant that the Court has not considered that since in the transactions and dealings “Kantilal Bhikhabhai” simplicitor is written, it cannot be a firm. It is a mistake not to appreciate that in law merchant it is a common practice to state the name of the firm and not to use FA/900/1986 4/7 JUDGMENT “prefix” and “suffix” when it is written for and on behalf of in dealing, the same suffices, the purpose. Meaning and pruport are to be spelled out from the conduct and dealings and not from the simple words, used at random. The cause of justice is to be advanced by construing the words according to practice, employed in the mercantile world. It is further the case of the appellant that in the alternative the trial Court should have passed a decree against the respondents No.1 and 2, who have been established to be running the business in the name of the respondent No.1, who happens to be son of the respondent No.2. Neither out of the respondents No.1 and 2 has filed affidavit for leave or stopped into the witness box in defence. The respondent No.3 alone has filed affidavit for leave to defend, which has been subsequently adopted as written statement of defence. Order – 30, Rule 10 of Civil Procedure Code enables the appellant to fall back on this principle of a trade-name, in case of failure to establish a partnership. It is also the case of the appellant that since the respondent No.2 has written in the name of the respondent No.1 two post-cards (Ex.47 and Ex.48) respectively dated 23.11.79 and 22.12.79 acknowledging the debt of the appellant, there is acknowledgment of the debt in terms of Section 18 of the Limitation Act. And now since the suit has been filed on FA/900/1986 5/7 JUDGMENT 28.06.1982, it has been within the period of limitation of three years prescribed for money suits. It is also the case of the appellant that in view of the aforesaid facts and circumstances of the case, the judgment and decree passed by the Court below requires to be quashed and set aside in the interest of justice. 5. The Court below has discussed every aspects and given reasons, in detail in paras-22 and 23 which are reproduced hereunder. “22. In the instant case according to the plaintiff, the suit goods were purchased by the defendants upto S.Y.2032, while the amount of Rs.1,000/- was borrowed in S.Y.2033 on 20.02.1977. No goods were purchased either in S.Y.2033 or thereafter. The plaintiff ought to have filed the suit within three years from the date on which, the plaintiff sold the suit goods to the defendants. In the instant case, it has not been established that any payment was made by the defendants acknowledging the previous debt, so as to bring the suit of the plaintiff within the period of limitation. As observed above, three writings passed by the defendant No.2 are inadmissible in evidence. The post-cards exhs. 47 and 48 would not amount to an acknowledgment of the liability to pay the debt and the goods of accounts also would not help the plaintiff FA/900/1986 6/7 JUDGMENT because the last entry of the receipt of amount is dated 16th May, 1978. Therefore, in any view of the matter, the present suit is not filed within the period of three years from the date of purchase of the suit goods or within three years from the date of payment made by defendants. The entries in the books of accounts of the plaintiff would not have the limitation as no satisfactory evidence is produced to show that defendant, in fact, made payment to the plaintiff which would bring the suit within the period of limitation. I, therefore, hold that the present suit is barred by law of limitation and decide issue No.2 in the affirmative. 23. The plaintiff having failed to prove that the defendant No.1 is the partnership firm and defendants No.2 and 3 are the partners of the said firm and having failed to prove that the suit goods were purchased by defendant No.2 or defendant No.3 as partner of the defendant No.1 partnership firm, the plaintiff is not entitled to suit claim. The suit is not filed against defendant No.2 in his individual capacity and, therefore, decree against defendant No.2 in his individual capacity also cannot be passed. Apart from the fact that the suit is barred by law of limitation, the plaintiff has failed to prove the suit claim against defendant No.1 alleged partnership firm or against defendant Nos.2 and 3 as partners of defendant No.1 partnership firm. I decide issue No.5 in the negative.” 6. Considering the facts of the case, I am of the considered FA/900/1986 7/7 JUDGMENT opinion that the Court below was completely justified in passing the impugned judgment. The suit is barred by law of limitation. It is noticed that the claim involved in the present appeal is of less than Rs.10,000/- and looking to the smallest amount, I am not inclined to issue the notice to the appellant. I am, therefore, in complete agreement with the reasonings given by the Court below and the findings arrived at by the Court below in the impugned judgment and I am, therefore, not inclined to entertain and interfere in this appeal. This appeal is, therefore, required to be dismissed. 7. For the foregoing reasons, the present appeal stands dismissed. No order as to costs. [K. S. JHAVERI,J.] vijay