IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 SA.No. 897 of 1996 --------------------------- (A.S. NO.57/1994 OF THE DISTRICT COURT, THALASSERY, O.S. NO.46/1992 OF THE SUB COURT, THALASSERY) ................ PLAINTIFF/APPELLANT/APPELLANT: ----------------------------------------------------- VENUGOPALAN NAIR, S/O. KRISHNAN NAIR, `PRIYADARSHINI', SIVAPURAM AMSOM, KANHILERI DESOM OF THALASSERRY TALUK. BY ADVS. SRI.K.I.MAYANKUTTY MATHER, SRI.V.V.ASOKAN, SMT.JIJIMOL J.VADAKKEN. DEFENDANT/RESPONDENT/RESPONDENT: -------------------------------------------------------------- P.P. DIVAKARANKUTTY, S/O. PAPPAN, PULIYULLAPARAMBATH HOUSE, P.O. ATAKKATHODE, VIA. PIRAVOOR. BY ADVS. SRI.K.S.MADHUSOODANAN, SRI.C.P.PEETHAMBARAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 897 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2010. JUDGMENT The plaintiff, who was non-suited by the trial court and whose appeal was dismissed by the appellate court is the appellant before this court. 2. According to the plaintiff, as per Ext. A13 agreement he incurred expenses to the tune of Rs. 15,000/- for the proposed business and later on he had rescinded the contract due to the conduct of the defendant. He therefore sought return of the amount. 3. The defendant resisted the suit. According to him, the plaintiff had expressed his desire to associate himself in the business of the defendant promising for further expansion. Therefore Ext.A13 agreement was entered into. It is pointed out by him that the agreement did not come into effect and none had acted upon it. Due to the passive attitude of the plaintiff, the defendant S.A. 897/1996. 2 had to do the business on his own. He admitted that he had not sent a reply to the notice since it did not warrant any reply. On the basis of these contentions, he sought for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and the documents marked as Exts.A1 to A17. Ext.X1 is the third party exhibit. On an appreciation of the evidence in the case, the trial court came to the following conclusions: i) The suit is hit by Section 69 of the Indian Partnership Act, and ii) There was no proof regarding the fact that the plaintiff had incurred Rs.15,000/- as claimed by him. Based on the above findings, the suit was dismissed. The appeal filed as A.S. 57 of 1994 before the District Court, Thalasserry met with the same fate. 5. The following questions of law are seen raised in this Second Appeal: S.A. 897/1996. 3 “(a) (i) Where the courts below justified in non suiting the plaintiff under Section 69 of the Partnership Act, when nobody has a case of commencement or existence of a partnership business? (ii) Will Section 69 of the Partnership Act can have any application, where there is no concluded contract? (b) Is not the suit as framed by the plaintiff maintainable in view of Sections 64 and 65 of the Contract Act? © Are not the courts below in error in dismissing the suit discarding the evidence of the plaintiff where there is absolutely no evidence whatsoever on the side of the defendant?” 6. Learned counsel appearing for the appellant pointed out that the courts below were not justified in invoking Section 69 of the Indian Partnership Act, as it had no application to the facts of this case. Learned counsel pointed out that it was for the return of the expenses incurred that the suit was laid and it was not on behalf of the firm or by the firm itself or on a contract. The suit was filed S.A. 897/1996. 4 for the recovery of the amount invested by the plaintiff as a result of the promise made by the defendant. Learned counsel also drew the attention of this court to the fact that the courts below have not properly appreciated the evidence of P.Ws.2 to 4, which would clearly show that there was a joint venture by the plaintiff and the defendant. It is also emphasized that certain bills have been produced by the plaintiff, which showed that he had purchased materials for the joint business. This aspect has been omitted to be noticed by the courts below and that had resulted in miscarriage of justice. 7. Though the arguments may look attractive, on a close scrutiny, they can be found to be without substance whatsoever. Learned counsel may be justified in his submission that Section 69 of the Indian Partnership Act has no application to the facts of the case. As rightly pointed out, the suit is neither against the firm nor against a partner as such nor based on a contract. It is for the amount incurred by him that the suit was laid. It is therefore clear S.A. 897/1996. 5 that the view of the courts below that Section 69 of the Indian Partnership Act is attracted may not be correct. 8. However, the plaintiff has miserably failed to prove that he has incurred an expense of Rs.15,000/- as claimed by him. Ext.A13 is dated 7.10.1987. The plaintiff claims to have incurred an amount of Rs.15,000/- and bought certain materials for the business purpose. The cash bills, which were produced are not clear. There is nothing to show that the materials were purchased for the purpose of the joint business. One cannot omit to note Ext.A14 notice. That is a notice issued by the plaintiff to the defendant. There it is clearly mentioned that even though as per Ext.A13 the defendant had promised to associate with the plaintiff for the business, till 13.9. 1989, that is the date on which the notice had been issued, nothing transpired. He was kept away from the business during all these periods. This would clearly show that the evidence of P.Ws. 2 to 4, who say that there was a joint venture in between the plaintiff and defendant cannot be accepted. As rightly found S.A. 897/1996. 6 by the courts below there is nothing to show that the plaintiff has incurred Rs.15,000/- as claimed by him. Those are findings on fact. No substantial question of law arises for consideration in this Second Appeal. This Second Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A. 897/1996. 7 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 897 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 07.06.2010