THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.535 of 2010 Date of Judgment: 16-07-2010 Between: Chamakuri Surya Basava Srinivas ..Appellant and Sri Laxmi Srinivasa Finance rep.by its Manager MVS Prasad ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.535 of 2010 Oral Judgment: The unsuccessful defendant in the courts below filed this Second Appeal challenging the judgment and decree dated 25-01- 2010 passed in A.S.No.114 of 2007 by the I Additional District Judge, East Godavary, Rajahmundry dismissing the appeal and confirming the judgment and decree of the II Additional Senior Civil Judge (Fast Track Court), Rajahmundry in O.S.No.332 of 2002 dated 20-06-2007. The plaintiff/partnership firm instituted the above suit for recovery of Rs.1,03,937/- stating that the defendant borrowed an amount of Rs.1,00,000/- on 11-11-1997 towards investment in the business by executing a demand promissory note with interest at 24% per annum, in default of payment of interest every month, the defendant is liable to pay interest at 30% per annum. The defendant received the said amount through a cheque bearing No.649626 issued on Andhra Bank Veerabhadrapuram Branch. When the plaintiff demanded for security of the amount, the defendant deposited four share certificates relating to the shares of M/s. Tobacco Company as security along with transfer form. The defendant also executed a memorandum evidencing deposit of share certificates. On verification, the plaintiff came to know that the said certificates were already transferred in the name of M/s. Ingrid Jennings of Calcutta. Thereafter, the plaintiff filed the suit for recovery of the amount. The defendant filed a written statement admitting about borrowing the amount of Rs.1,00,000/- and took a plea that during the time of borrowing, the plaintiff obtained his signatures on blank papers besides three cheques. On coming to know that the Kakatiya Consultancy through whom the defendant said to have purchased the shares sold away the same and paid to the plaintiff. As the said amount of Rs.1 lakh was received by the plaintiff, the defendant requested the Kakatiya Consultancy to return the papers signed by him, but the said consultancy informed the defendant that the plaintiff will not return the papers since it is a firm and the account was closed. The plaintiff informed the defendant about the shares in the month of November, 2000 only without making any effort to get the shares replaced by new one from Kakatiya Consultancy. The shares, which were in possession of the plaintiff, were not in the name of the defendant but they were in the name of Ingrid Jennings, who in turn sold away the shares to their broker and ultimately Kakatiya Consultancy sold them to the defendant. The suit is not maintainable since the proper person did not file the plaint and the person who signed on the plaint is not proper person on behalf of the firm. Basing on the above pleadings, the trial court settled necessary issues. P.Ws.1 to 4 were examined and Exs.A1 to A28 were got marked. On behalf of the defendant D.W.1 was examined and Exs.B1 & B2 were marked. The lower court after considering the evidence adduced by the parties decreed the suit. On appeal being filed, the lower appellate court confirmed the same holding when the defendant admitted the receipt of consideration and putting his signature on Ex.A1— promissory note, there is no necessity for the plaintiff to examine any witness to prove the execution of the promissory note and passing of consideration and in spite of it the plaintiff examined P.Ws.2 and 3 attesters to substantiate execution of promissory note and payment of consideration. The evidence of P.W.1 further discloses that the plaintiff’s account was not closed and the entire debt was not discharged even after payment of Rs.71,640/- on 03-05-1999. The defendant who admitted the receipt of legal notice under Ex.A11 and A15 stated that on receipt of notice Ex.A11 he approached Kakatiya Consultancy and they got verified through Ramachandra Rao and assured that his account was closed with the plaintiff. When the plaintiff got issued legal notice Ex.A15, the defendant is expected to respond immediately in view of the place taken by him that his account was closed with the plaintiff at the instance of Kakatiya Consultancy. From the evidence, it is apparent that Venugopal Rao, who arranged the loan and who has given assurance by executing Ex.A13—letter, cannot be a necessary party to the suit filed against the defendant. P.W.1 is none other than the son of the Managing partner and the firm is a joint family firm, and in fact, in the partnership deed itself P.W.1 is vested with powers to represent the firm affairs before various authorities including the Civil, Judicial, Transport and Income-tax departments in his capacity as Manager of the firm and he has to supervise and manage the entire business of the firm and there is an agreement executed between the firm and P.W.1 to that effect on 06- 03-1992 itself where under it was agreed that P.W.1 shall sign necessary document and material papers like vakalat, plaint, written statement, miscellaneous petitions and all other papers required to file before the concerned courts and tribunals. Besides that managing partner filed an affidavit under Rule XXXII of Civil Rules of Practice subsequently authorising P.W.2 to file the suit and another memo to avoid complications and complete the statutory requirements. Therefore, the suit as such was decreed and the same was confirmed in appeal. Learned counsel for the appellant contends that the r appellate court committed an error in dismissing the appeal as initially P.W.1 was not authorised to file the suit on behalf of the plaintiff-firm. Admittedly, the trial court has given cogent reasons on point No.2 that powers were conferred on the plaintiff to represent the firm including filing of suit and to the said effect an agreement was also entered on 06-03-1992. Even otherwise during the pendency of suit subsequently the Managing partner filed an affidavit under Rule 32 of Civil Rules of Practice, which covers the defect. It is now fairly well settled that partnership firm or company can ratify the plaint filed by the company or firm by authorised representative during the pendency of the proceedings. The concurrent findings recorded by the courts below are based on evidence. I see no question of law, much less substantial question of law, to admit the Second Appeal and it is accordingly dismissed. _________________ A.GOPAL REDDY, J. 16-07-2010 Murthy