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SA/123/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 123 of 2009
With
CIVIL
APPLICATION No. 3799 of 2009
In
SECOND
APPEAL No. 123 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
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 ?
=========================================
GANGA
YAMUNA TUBE-WELL COMPANY & 7 - Appellant(s)
Versus
JAYKISHAN
TUBE-WELL COMPANY - Defendant(s)
=========================================
Appearance :
MR
NK MAJMUDAR for
Appellant(s) : 1 - 8.
None for Defendant(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 09/03/2010
ORAL
JUDGMENT
1. The
present Second Appeal under Section 100 of the Code of Civil
Procedure has been preferred by the appellants-original defendants of
Special Civil Suit No. 43/1977 challenging the judgement and decree
passed by the learned Civil Judge (Senior Division), Mehsana dated
25/03/1980 in Special Civil Suit No. 43/1977 confirmed by the
learned appellate Court by impugned judgement and order dated
07/05/2007 by the learned Additional District Judge, Mehsana in
Regular Civil Appeal No. 123/2005.
2. The
respondent-original plaintiff had instituted Special Civil Suit No.
43/1977 against the appellants-original defendants for recovery of
Rs. 50,000/- alleged to have been due and payable by the
appellants-original defendants to the respondent-original plaintiff.
At the outset, it is required to be noted that the transaction in
question was dated 30/05/1974 and the suit to recover the balance
amount of Rs. 50,000/- was filed in the month of June, 1977.
However, at the relevant time, defendants nos. 6, 7 and 8 were not
joined as party defendants and they came to be joined as defendants
nos. 6, 7 and 8 subsequently, more particularly, vide order dated
12/10/1977. The learned trial Court framed the issues at Exh. 65 and
on appreciation of evidence on record as well as documentary held
that the respondent-original plaintiff has proved that the
respondent-original plaintiff firm is registered under the
Partnership Act and it proved that Rs. 50,000/- is remaining and/or
due and payable by the appellants-original defendants to the
respondent-original plaintiff. Though the respondent-original
plaintiff claimed interest at the relevant time at the rate of 12%
per annum, the learned trial Court granted interest at the rate of
9% per annum. Specific issue was also raised that the suit was barred
by limitation against defendants nos. 6, 7 and 8, who were joined
subsequently as party defendants on 12/10/1977. The learned trial
Court considered the fact that last payment was made to the
respondent-original defendant on 21/09/1974 and the balance remaining
was Rs. 50,000/-, which was paid by cheque on 18/12/1974 and
presented in the Bank but it was dishonoured and, therefore,
considering the above extended period of limitation, the learned
trial Court held that the suit against defendants nos. 6, 7 and 8 is
within the period of limitation and is not barred by limitation and
finally the learned trial Court even decreed the suit for an amount
of Rs. 68,000/- with 9% interest from the date of the suit till the
date of realisation. Being aggrieved and dissatisfied by the
judgement and order passed by the learned trial Court, the
appellants-original defendants preferred Regular Civil Appeal No.
123/2005 before the learned Additional District Judge, Mehsana, which
came to be heard by the learned Additional District Judge, who passed
the impugned judgement and order dated 07/05/2007 dismissing the
said appeal confirming the judgement and decree passed by the learned
trial Court. Being aggrieved and dissatisfied by the judgement and
order passed by both the Courts below, the appellants-original
defendants have preferred the present Second Appeal under Section 100
of the Code of Civil Procedure.
3. Shri
Suthar, learned advocate appearing on behalf of the
appellants-original defendants has submitted that the following
substantial questions of law arise for determination of this Court in
the present Second Appeal.
(i) Whether
both the Courts below have erred in holding that the suit was not
barred by limitation?
(ii) Whether
the Courts below has substantially erred in shifting the burden of
proof upon the appellants-original defendants?
(iii) Whether
both the Courts below have erred in awarding interest at the rate of
9% per annum to the respondent-original plaintiff in absence of
condition to that effect?
4. Shri
Suthar, learned advocate appearing on behalf of the
appellants-original defendants has submitted that as defendants nos.
6, 7 and 8 were joined as defendants on 12/10/1977 and the suit
transaction was of 30/05/1974, the last date of limitation to file
the suit was 30/05/1977 and, therefore, the suit against defendants
nos. 6, 7 and 8 was barred by limitation. It is further submitted
that at the time when the amendment application was allowed and the
defendants were joined as defendants nos. 6, 7 and 8, it was without
prejudice to the rights and contentions of defendants nos. 6, 7 and 8
with respect to limitation and, therefore, it is submitted that both
the Courts below have materially erred in holding that the suit is
within the period of limitation and/or not barred by limitation. It
is further submitted that the respondent-original plaintiff firm came
to be dissolved on 11/11/1977 and, therefore, in view of the
provisions of the Partnership Act, more particularly, Section 69 of
the Partnership Act, the suit was
not maintainable and, therefore, both the Courts below have
materially erred in decreeing the suit. Lastly, it is submitted that
both the Courts below have materially erred in awarding the interest
at the rate of 9%.
5. Having
heard the learned advocate appearing on behalf of the
appellants-original defendants and considering the judgement and
order passed by both the Courts below, the present Second Appeal
deserves to be dismissed as the same has no substance at all. The
contention on behalf of the appellants-original defendants with
respect to the suit being barred by limitation against defendants
nos. 6, 7 and 8 is concerned, it is to be noted that, as observed by
the learned trial Court, the last payment made by the
appellants-original defendants was on 21/09/1974 and the remaining
balance amount of Rs. 50,000/- was paid by cheque on 18/12/1974,
which was presented in the Bank but was dishonoured, which is at Exh.
80 and, therefore, the limitation would start from the last date of
payment i.e. 18/12/1974 and/or from the date of receipt of the memo
of dishonour of said cheque. Defendants nos. 6, 7 and 8 were joined
as party defendants on 12/10/1977 and, therefore, the period of
limitation would start from 18/12/1974. Defendants nos. 6, 7 and 8
were joined as party defendants within a period of three years from
08/12/1974 and, therefore, it cannot be said that the suit against
the defendants was barred by limitation. Now
so far as the contention and/or submissions on behalf of the
appellants-original defendants that after filing of the suit the
respondent-original plaintiff firm came to be dissolved on
11/11/1977 and, therefore, in view of Section 69 of the Partnership
Act the suit was not maintainable and/or both the Courts below could
not have passed the decree has no substance at all. In the present
case, Section 69 of the Partnership Act would not be applicable at
all. Section 69 of the Partnership Act provides that no suit shall
be instituted in any Court by or on behalf of any person suing as a
partner in a firm against the firm or any person alleged to be or to
have been a partner in the firm unless the firm is registered and the
person suing is or has been shown in the Register of the Firms as a
partner in the firm. It is not in dispute that at the relevant time
when the suit was instituted the respondent-original plaintiff firm
was registered one and, therefore, what is required to be considered
is when the suit was instituted and not the subsequent development,
and, therefore, Section 69 of the Act has no application at all.
6. Now
so far the submissions on behalf of the appellants-original
defendants with respect to awarding the interest at the rate of 9%
per annum is concerned, as such there are concurrent findings of fact
given by both the Courts below with respect to the same. Even
otherwise, the said aspect has been dealt with by the learned trial
Court while deciding issue no. 3 and the learned trial Court has,
while awarding the interest at the rate of 9%, relied upon the
decision of the Hon’ble Supreme Court in the case of THAWARDAS
PHERUMAL & ANR Vs. UNION OF INDIA reported
in AIR 1955 SC 468
as well as the provisions of
Section 34 of the Code of Civil Procedure. In the facts and
circumstances of the case, the said findings is not required to be
interfered with by this Court in exercise of powers under Section 100
of the Code of Civil Procedure.
7. In
view of the above, there is no substance in the present Second
Appeal, which deserves to be dismissed and is accordingly dismissed.
CIVIL
APPLICATION No. 3799/2009
In
view of the order passed in Second Appeal, no order in Civil
Application.
(M.
R. SHAH, J.)
siji
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