IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 RSA.No. 609 of 2008() --------------------- AS.94/2007 of SUB COURT, PERUMBAVOOR OS.237/2000 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT IN A.S. NO. 94/2007 AND DEFENDANT IN O.S. NO. 237 OF 2000 ---------------------------------------------------------------------- K.A. ABDUL KHADER, PROPRIETOR, ASSOCIATED TRADE LINKS, POST BOX NO.27, PALACE ROAD ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.SHAJI CHIRAYATH SMT.JIJI M. VARKEY RESPONDENT(S): --------------- TRAVANCORE BIO-FUELS, RAYONPURAM, REPRESENTED BY ITS BY ITS MANAGING PARTNER, C.Y. MEERAN, AGED ABOTE 43, S/O YOUSUF, CHIRAKKUDY VEETTIL, VENGOLA KARA, VENGOLA VILLAGE, THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ...................................... R.S.A. NO. 609 OF 2008 ....................................... DATED: 22nd DAY OF OCTOBER 2008 JUDGMENT The defendant in O.S. 237 of 2000 on the file of the Munsiff's Court, Perumbavoor is the appellant in this Second Appeal. The said suit was for realisation of a sum of Rs. 92,666/- being the price of briquettes purchased by the defendant from the plaintiff which is a partnership firm manufacturing briquettes. Briquettes constitute fuel for furnace. 2. The case of the plaintiff was that briquettes were purchased from the plaintiff's on hire purchase from 5-11- 1998 till 1.6.1999 as evidenced by the endorsements on the reverse side of the invoices and that even after a lawyer notice demanding the amount , the defendant failed to pay the same. 3. The appellant resisted the suit contending inter alia that the plaintiff which is not a registered partnership firm was not entitled to maintain the suit in view of the bar under Sec. 69 of the Partnership Act, that the defendant did not purchase the briquettes as alleged, that the cause of action for the suit arose within the jurisdiction of the Munsiff's Court, Aluva and therefore, the Munsiff's Court, R.S.A. 609 of 2008 -:2:- Perumbavoor has no territorial jurisdiction to try the case, that it was the plaintiff who thrust upon the unwilling defendants briquettes for use as fuel in the unit belonging to the defendant manufacturing Magnisium Sulphate, that the briquettes supplied by the plaintiffs were of poor quality and that the suit is liable to be dismissed. 4. On the side of the plaintiff Exts.A1 to A9 were got marked and the managing partner of the firm was examined as P.W.1. On the other side of the defendant he examined himself as DW1. 5. The learned Munsiff, after trial, as per judgment dated 25-2-2005 repelled the contentions of the appellant and decreed the suit as prayed for. On appeal preferred by the defendant as A.S. 94 of 2007 before the Sub Court, Perumbavoor the lower appellate court has confirmed the judgment and decree passed by the trial court. Hence this Second Appeal. 6. The learned counsel appearing for the appellant defendant raised the following substantial questions of law:- “1. Whether the defect of non-registration can be remedied by registration of the firm during the pendency of the suit. ? 2. Whether a firm can be said to be registered when the statement prescribed by Section 58 and the required fee are sent to the Registrar of Firms ? R.S.A. 609 of 2008 -:3:- 3. Whether the Court below properly applied the principles of law regarding the acquisition of title by adverse possession on the facts established in this case ? 4. Whether the Entries in Ext.P2 and P3 the statements of account are by themselves sufficient to charge any person with liability ? 5. Whether independent evidence of the transaction to which the entries of Ext.P2 and P3 relates essential and in absence of such evidence plaintiff who relies upon such entries to support his claim against Defendant entitled for any as prayed for in the plaint ? 6. Whether a business owned by Plaintiff is entitled to proceeded against Defendant for alleged debts with Plaintiff's prior owners and their assignee at the time of the transfer of the business to the effect that the liabilities of the business merely because a continuous account was kept ? 7. Whether, the non-production of account books by the plaintiff who has custody of them, because if produced, they would have been unfavourable to his case, in th e light of such situation his suit is liable to be dismissed ? 8. Whether the Court below can assume jurisdiction and try the suit its own, when the pleading and evidence are contrary ? 9. Whether the challenge against territorial jurisdiction in appellate state ? 10. Whether the Court below is bound pass a preliminary decrees R.S.A. 609 of 2008 -:4:- for settlement of accounts between plaintiff and defendant, when Court below discarded Ext.A1 series invoices ? 11. Whether the Court below is entitled to fix liability on defendant in absence of any cogent evidence or without settlement of accounts ?” 7. With regard to the contention based on Sec. 69 of the Partnership Act, the courts below has held that the appellant had not denied in the written statement the specific allegation in the plaint that the plaintiff is a partnership firm represented by its managing partner. The only stand taken in the written statement was that the defendant was not aware whether the plaintiff was a partnership firm or not. As rightly observed by the courts below pleading ignorance of the specific plea taken in the court could not constitute specific denial as enjoined by Order 8 Rule 3 C.P.C. At the time of cross-examination of the managing partner of the plaintiff firm as P.W.1 also no question was put to P.W.1 regarding his capacity to represent the firm. This indicated that the defendant did not dispute the status of the plaintiff as a partnership firm. Moreover, the plaintiff had produced before the trial court Ext.P9 partnership deed of the reconstituted firm. He also produced before the lower appellate court Ext.A10 acknowledgment of registration of firm issued by the Registrar of Firms, Thiruvananthapuram. It was dated 28- R.S.A. 609 of 2008 -:5:- 3-1998. It can thus be seen that it is a registered partnership firm. Moreover, the claim in the plaint is the price of goods supplied by the plaintiff to the defendant. It has nothing to do with the registration of the firm. Hence, the objection based on Sec. 69 of the Partnership Act was rightly overruled by the courts below. 8. The contention based on want of territorial jurisdiction of the Perumbavoor Court was also repelled by the courts below. In the plaint it was specifically pleaded that the goods were ordered from Perumbavoor and supplied from Perumbavoor. Thus, part of the cause of action arose within the jurisdiction of Munsiff's Court, Perumbavoor. That apart, the question of territorial jurisdiction was not raised at the earliest point of time as mandated by Sec. 21 C.P.C. and even before the trial court the said contention was only feebly argued. 8. Equally misconceived is the contention that there was no evidence to the supply of briquettes to the defendant. At the time of cross-examination of the defendant, he had admitted that he purchased briquettes from the plaintiffs from 5-11-1998 till 1.6.1999. He also confessed that he used to receive the briquettes by endorsing the same on the reverse side of the invoices. A1 series of invoices were produced by the plaintiff contains endorsements to that effect either by the appellant or his R.S.A. 609 of 2008 -:6:- agent. It was, therefore, not permissible for the appellant to persist the said contention. 9. His argument that Ext.A2 which is the statement of account was not admissible in evidence has also been repelled by the courts below. A2 is the computer print out showing that the transactions between the plaintiff and the defendant. According to DW1 he was maintaining true accounts with respect to the purchase of briquettes from the plaintiff's firm. If so, he could have produced the accounts allegedly maintained by him to rebut the entries in Ext. A2 computer printout produced from the plaintiff. Hence, the same cannot be entertained. 10. The discharge pleaded by the appellant was also found against by the courts below. The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions formulated in the memorandum of Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 22nd day of October 2008. V.Ramkumar, Judge. ani/ R.S.A. 609 of 2008 -:7:- R.S.A. 609 of 2008 -:8:-