IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Friday, the 8th day of October, Two Thousand and Ten PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.1025 of 2010 Between: K.Srinivasa Rao. … Appellant And Darapu Manga Mani and another … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 1025 OF 2010 JUDGMENT:- This is a plaintiff’s second appeal, aggrieved by the Judgment and decree, dated 24.08.2010, passed by IV Additional District Judge, East Godavari at Kakinada, in allowing A.S.No.88 of 2007 and dismissing the suit of the appellant/plaintiff, setting aside the judgment and decree, dated 25.01.2007, passed by I Additional Senior Civil Judge, Kakinada in O.S.No.277 of 2002, wherein the suit filed by the plaintiff for the dissolution of firm and for rendition of accounts, was decreed partly with proportionate costs for a sum of Rs.4,04,662.50 ps. with subsequent interest at 6% per annum from the date of suit till the date of realization on Rs.2,75,000/-. Plaintiff filed the above suit stating that himself and the 1st defendant are the partners and they had constructed Steel Barge No.74 by entering into a partnership agreement on 23.12.1999; the plaintiff invested Rs.5,00,000/- towards his 1/4th share and the 1st defendant invested Rs.15,00,000/-; all the expenses should be borne in the ratio of 75:25 by the plaintiff and the 1st defendant respectively; the 1st defendant should be the managing partner of the firm and should maintain the accounts of the Barge. When the 1st defendant proclaimed that the plaintiff has nothing to do with the Barge and that she is absolute owner, the plaintiff got issued a notice on 26.07.2002 and got filed the above suit. The 1st defendant filed the written statement traversing the plaint averments and denying the partnership between herself and the plaintiff and the plaintiff investing 1/4th share etc. It was pleaded that the plaintiff is related to the 1st defendant and taking advantage of it, he approached her, requesting 1/4th share in the Barge representing that he would advance money to help the 1st defendant, who was in financial crisis. The plaintiff representing that he would initially pay Rs.75,000/- and so saying insisted the 1st defendant to sign on blank signed papers and on good faith and having relationship with the plaintiff, herself and her husband signed on blank signed papers, which were fabricated with the alleged partnership deed. The 1st defendant is the absolute owner of the Barge and was recognized by the Port Authorities, Kakinada. She never entered into partnership with the plaintiff or agreed to give him 1/4th share or maintained accounts of Barge as managing partner. There was no necessity for her to proclaim as alleged by the plaintiff. From the copy of partnership deed supplied by the plaintiff, it came to light that it was a fabricated one and the plaintiff has no right to question the 1st defendant’s rights over the Barge. The 1st defendant is entitled to alienate Barge No.74. She was suffered mentally and financially due to the suit filed by the plaintiff and the 1st defendant could not sell the Barge to Majeti Govindarajulu. Further, the said written statement of the 1st defendant was got amended stating that the only registered licencee alone has got rights under “the Andhra Pradesh State Ports Harbour Crafts Rules, 1980” in Barge and no other person than the licencee can claim any kind of rights. Plaintiff has no rights over the Barge as a partner and her claim is unsustainable. The 2nd defendant filed a separate written statement stating that the 1st defendant applied for a loan to the 2nd defendant for a loan of Rs.15,00,000/- for constructing the Steel Barge and the same was sanctioned to her and the Barge has been hypothecated under the letter of hypothecation to the 2nd defendant. The 2nd defendant is deemed to be the owner of the Barge till the loan amount of Rs.15,00,000/- and the interest thereon is completely discharged. The 1st defendant has no right to enter into any partnership or any other kind of transactions with the plaintiff. The 1st defendant is due an amount of Rs.19,99,464/- as on 31.08.2002 and failed to pay in spite of demands made by the 2nd defendant. Basing on the above pleadings, the following issues were settled by the trial court: - 1. Whether the plaintiff is entitled for dissolution of partnership firm, dated 02.05.2001? 2. Whether the plaintiff is entitled for rendition of accounts of the firm from 23.12.1999 till the date of its dissolution? 3. To what relief? Basing on the additional pleadings, the following additional issues were settled: 1. Whether the plaintiff has no licence or got rights in the Barge as a partner? 2. Whether the partnership pleaded by the plaintiff is true? 3. Whether the partnership deed, dated 02.05.2001, is true, valid and binding on the 1st defendant? To prove the respective contentions, the plaintiff himself was examined as P.W.1 and marked Exs.A1 to A6. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B3 were marked. The learned trial court after considering the oral and documentary evidence partly answered additional issue Nos.1 to 3 in favour of the plaintiff stating that the 1st defendant received a sum of Rs.2,75,000/- out of the benefits derived from Ex.A1 and the 1st defendant has to compensate to the plaintiff in the benefits derived by her. Issue Nos.1 and 2 were answered against the plaintiff stating that the plaintiff was not entitled for dissolution of the partnership firm or for rendition of the accounts and accordingly, partly decreed the suit against the 1st defendant as referred supra. On appeal being filed by the 1st defendant, the lower appellate court on re-appreciation of the evidence, set aside the decree and judgment in respect of granting decree in part, of Rs.4,04,662.50 ps. and subsequent interest thereon, confirming the dismissal of the suit for other reliefs. On the cross-objections filed by the plaintiff, the lower appellate court dismissed the suit of the plaintiff. Sri M.S.Srinivasa Iyengar, learned counsel for the appellant contends that when the trial court accepted the plea of the plaintiff and partly decreed the suit, the lower appellate court is not justified in reversing the said finding and dismissing the suit particularly when once the signature of the 1st defendant on the partnership deed is admitted, the defendants failed to discharge the burden. Under Ex.A3—reply notice certain details and admissions were specifically made by the 1st defendant, admitting that the plaintiff requested her to give 1/4th share in the Barge and she obliged the said request, but it was so recited in Ex.A3 that the plaintiff failed to pay the said amount in full and sought for furnishing the photo copy of partnership deed and there is no reply to Ex.A4 rejoinder notice sent by the plaintiff. From the evidence of P.W.1 coupled with Exs.A1 to A4 it is evident that the plaintiff was offered 1/4th share in the steel Barge by the 1st defendant and from Ex.A3 it can be gathered that the 1st defendant took the plea of partial passing of consideration by the plaintiff to him without specifically mentioning the amount paid by the plaintiff to her. Therefore, the lower appellate court ought not to have dismissed the suit. In para—12 of the judgment, the lower appellate court elaborately discussed the evidence adduced by the parties including the evidence of P.W.1 in the cross-examination and through him Exs.B1 and B2 were marked. Ex.B1 is the receipt issued by the Kakinada Cargo Board Suppliers in the name of the 1st defendant; Ex.B2 is the miscellaneous receipt issued by Port Officer, Kakinada in the name of the 1st defendant towards annual inspection of steel Barge No.74, as the plaintiff failed to examine neither the Captain nor Kalasies to prove the alleged joint business under Ex.A1. He admitted that he did not pay the bank loan of Rs.2,25,000/-. If Ex.A1 is true, according to the plaintiff himself that he has to discharge the Bank debt that to for entering into the partnership, he ought to have discharged the debt. When he admitted that he has no accounts for the business with the 1st defendant and though says that Barge was constructed along with the 1st defendant in the year 1999, he has failed to substantiate the said plea. He also admitted that the 1st defendant constructed the Barge and requested him to join as a partner. In Ex.A1, there is no specific date to show the commencement of partnership from July, 1999. The plaintiff has to prove his case on the evidence adduced by him, but not on the weaknesses of the case of the defendants. Further, Exs.A5 and A6 show the financial capacity of the plaintiff. The defendants not only specifically denied the alleged partnership deed but also took the specific stand that the defendants are the absolute owner of the Barge. As per Section 69(1) of the Partnership Act, no suit shall be instituted in any court unless the Firm is registered in the Registrar of Firms. When the plaintiff failed to establish that he has entered into a partnership and claiming 1/4th share on the basis of unregistered partnership deed--Ex.A1, such suit is not maintainable in view of the bar contained under Section 69 of the Partnership Act. Taking all the said facts into consideration and the evidence adduced by the parties, the lower appellate court rightly dismissed the suit as not maintainable. No question of law, much less substantial question of law arises, for consideration in this second appeal. The Second Appeal is dismissed. There shall be no order as to costs. __________________ A.GOPAL REDDY, J 8th October 2010 lmv