IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1481 of 2003()
1. AJAYAKUMAR, S/O. SREEDHARAN,
... Petitioner
Vs
1. MAMMYKUTTY, S/O. VYYATTUKAVIL MUHAMMED,
... Respondent
2. SURYA AYURVEDIC PRODUCTS,
3. K.S. KOCHUMON, S/O. K.K. SANGU,
For Petitioner :SRI.ALEXANDER GEORGE
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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C.R.P.No.1481 of 2003
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Dated this the 20th June, 2008.
O R D E R
Second defendant in O.S.No.383 of 1993, on the file of
the Sub Court, Irinjalakuda, is the petitioner. First respondent is the
plaintiff. Petitioner and 3rd respondent were admittedly partners of the
second respondent/first defendant, Surya Ayurvedic Products. It is
also the admitted case that first respondent supplied bottles to the
second respondent and towards the value of the bottles, amount
claimed in the plaint were due. It is for realisation of that amount, first
respondent instituted the suit. Appellant admitted the liability, but
contended that subsequent to the transaction with first respondent,
the partnership was dissolved and third respondent has taken the
entire liability, and, therefore, petitioner is not liable. He has also
contended that even if petitioner is also liable, first respondent is
entitled to realise the claim from the petitioner only after exhausting
the remedy against third respondent. Learned Sub Judge, on the
evidence, granted a decree against all the defendants, without
accepting the case of petitioner that because of the dissolution of the
CRP.No.1481/2003
2
partnership, he is not liable or that he can be proceeded only after
exhausting the remedy against third respondent. Petitioner challenged
the judgment before the District Court, Thrissur, in A.S.No.405/1999.
The learned District Judge heard the appeal along with appeal filed by
respondents 2 and 3 (A.S.No.383/1999). By a common judgment, he
dismissed all the appeals, confirming the decree granted by the trial
court. It is challenged in this petition filed under Section 115 of the
Code of Civil Procedure.
2. The learned counsel appearing for petitioner was
heard.
3. The argument of the learned counsel is that courts
below did not properly consider the contentions of the petitioner. It
was argued that third respondent having taken over the entire assets
and liabilities of the second respondent firm, and as the partnership
firm stood dissolved on 1.4.1993, petitioner is not liable, and in any
case, petitioner can be proceeded only after exhausting the remedy
against third respondent.
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On hearing the learned counsel, I do not find any
illegality of irregularity in the impugned judgments warranting
interference in exercise of the revisional powers of this Court.
Section 25 of the Partnership Act provides that, every partner is liable,
jointly with all other partners and also severally, for the acts of the
firm done while he is a partner. Admittedly, the transaction
whereunder amount is due to first respondent/plaintiff was much prior
to the date of dissolution of the firm as claimed by the petitioner. As
provided under Section 25 of the Partnership Act, petitioner is liable
for the liability just like the third respondent. Though learned counsel
appearing for petitioner relied on Section 45 of the Partnership Act, as
rightly pointed out by the District Judge, Section 45 of the Partnership
Act has no application, with regard to the liability incurred by the firm
prior to the dissolution of the firm. In such circumstances, revision
petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.