JUDGMENT
P.S. Narayana, J.
1. The unsuccessful defendants in O.S. No. 97/85 on the file of Additional District Judge, Hindupur are the appellants. The respondent plaintiff filed a suit for recovery of Rs. 30,920/- with subsequent interest and for certain other reliefs.
2. The parties will be referred to as arrayed in the Trial Court for the purpose of convenience.
3. The case of the plaintiff-respondent is that defendants 2 to 5 are the partners of the 1st defendant firm-1st appellant firm and the plaintiff had lent a sum of Rs. 10,000/- to the 1st defendant firm at Hindupur as deposit and the 2nd defendant representing the 1st defendant firm as a partner received the amount for the purpose of their business and passed voucher on 9.11.1982. It was further pleaded that the plaintiff again lent another sum of Rs. 10,000/-on 13.11.1982 to the said firm at Hindupur as deposit and the 2nd defendant representing the 1st defendant as partner received the said amount for the purpose of their business and passed the voucher. It was further pleaded that the 2nd defendant promised to pay interest at 18% per annum on the said deposits. The plaintiff demanded the amounts due under the said two vouchers together with interest thereon, but the defendants had not kept up their promise and hence notice was issued by the plaintiff through his Advocate on 6.11.1985 and in spite of the said notice the defendants had not paid the amount and in such circumstances, the plaintiff had instituted the suit for recovery of the amount.
4. The 4th defendant had remained ex parte. The 2nd defendant representing the 1st defendant firm had filed a written statement. The 3rd and the 4th defendants also filed written
statements. The defence of the defendants in nutshell is that the 1st defendant is not a registered partnership firm at all and defendants 3 to 5 are not at all partners of the said firm and defendants 2 to 5 are separately running their concerns and each has nothing to do with another. It was further pleaded that the suit claim does not represent the deposits as contended by the plaintiff and there is no cause of action to file the suit and there is no privity of contract between the defendants 3 to 5 and the plaintiff at any point of time and they are neither necessary nor proper parties to the suit. The suit is bad for misjoinder of parties. It was also pleaded that no notice was issued to defendants 3 to 5 prior to the institution of the suit. It was also pleaded that since according to the plaintiff the amount of Rs. 20,000/- was paid and received at Bangalore on the respective dates the Court at Hindupur has no jurisdiction to entertain the suit. The vouchers in question relate to the sale of property by defendants 2 to 5 under different registered sale deeds and the said vouchers are given in the available printed forms and hence the said vouchers do not cover the deposits as alleged.
5. On the strength of the respective pleadings of the parties, the following issues were settled:
1. Whether the 1st defendant is the registered firm as pleaded in the plaint?
2. Whether the 2nd defendant to 5th defendant are partners in D-1’s firm as set up in the plaint?
3. Whether there is a privity of contract between the plaintiff and D-3 and D-5 relating to the suit claim?
4. Whether D-3 and D-5 are necessary and proper parties to the suit?
5. Whether on the plaint pleadings this Court has jurisdiction to try the suit and on the basis of suit document?
6. Whether the suit claim is time-barred?
7. To what further relief ?
Subsequent thereto, an additional issue also was framed on 19.12.1987, which is as follows:
“Whether the vouchers in question relate to the sale of properties by defendants 2 to 5 under registered sale deeds as contended by defendants in para-7 of the written statement ?”
6. On behalf of the respondent/plaintiff the plaintiff alone was examined as PW-1 and Ex. A-1 to Ex. A-12 were marked and on behalf of defendants/appellants the 2nd defendant alone was examined as DW-1 and Exs. B-1 to B-7 were marked. The Trial Court after appreciating the oral and documentary evidence had decreed the suit against the 1st defendant firm and also against defendants 2 to 5 personally and aggrieved by the said judgment and decree the defendants had preferred the present Appeal.
7. Mr. R.V. Prasad, the learned Counsel representing the appellants/defendants with all vehemence had contended that the Court at Hindupur had no jurisdiction to entertain the suit since the transactions had taken place at Bangalore. The learned Counsel also had further contended that the 1st defendant is not a registered firm at all and it is only a proprietary concern and merely because in certain documents the word or expression “partner” is employed, that cannot be taken as a ground to arrive at a conclusion that the 1st defendant is a partnership firm and not a proprietary concern. The learned Counsel would further
contend that the 2nd defendant is the proprietor of the 1st defendant and the other defendants 3 to 5 are the sons of the 2nd defendant and they have nothing to do with the 2nd defendant. When that being so, when the plaintiff/respondent had not produced any acceptable evidence to establish the existence of the partnership firm and also to show that the other defendants 3 to 5 also are partners, inasmuch as there is no privity of contract as between plaintiff and the other defendants, the suit as against the defendants 3 to 5 is not maintainable at all and the Trial Court had totally erred in decreeing the suit as against all the defendants. The learned Counsel also had commented about the findings recorded by the Trial Court at paragraphs 6 to 11 and had submitted that the Trial Court has misdirected itself while appreciating the evidence in this regard. The learned Counsel also had drawn my attention to the evidence of PW-1 and also DW-1. The learned Counsel also had drawn my attention to the provisions of the Indian Partnership Act in general and Section 68 of the said Act in particular.
8. Mr. Potti Venkata Ramana Rao, the learned Counsel representing the respondent/ plaintiff with all vehemence had contended that this is a case of a creditor enforcing a claim against a firm. The learned Counsel also would contend that Section 68 of the Indian Partnership Act will not operate as a bar for proving the fact otherwise. It was also contended that merely because the plaintiff/respondent had not produced the extract of the Register of Firms, that does not mean that the partnership firm is not in existence and that the other partners are not the partners of the said firm. The learned Counsel had taken me through the findings recorded by the Trial Court, especially at paragraphs 6,7, and 8 of the judgment and had pointed out the material on which reliance was placed by the Trial Court to arrive at a conclusion that defendants 3 to 5 also are the partners of the 1st defendant firm and hence a decree has to be passed as against those defendants also. The learned Counsel had pointed out not only Ex. A-1 and Ex. A-2. but also had drawn my attention to Ex. B-7. The voucher book and the signatures made thereon. The learned Counsel also had explained Ex. B-3 to Ex. B-5. The learned Counsel also had further contended that the unsuccessful defendants in the suit intend to defeat the genuine claim of the plaintiff raising such technical pleas. The learned Counsel also would maintain that as far as the jurisdiction is concerned, the cause of action arose at Hindupur and on appreciation of the evidence a finding had been recorded in this regard and even otherwise the question of jurisdiction should be raised at the earliest point of time and at any rate even otherwise no prejudice had been caused since the defendants entered appearance and had well contested the matter and had invited the judgment. The learned Counsel also had drawn my attention to Section 92 of the Indian Evidence Act which deals with exclusion of evidence of oral agreement. Elaborating his submission son this aspect the learned Counsel would maintain that except in Ex. A-4, in Ex. A-5, Ex. A-6 and Ex. A-7, the 2nd defendant is not a party and even otherwise the recitals in these documents go to show that the amounts are different and the payments were made by way of demand drafts and hence in the light of the same the stand taken by the 2nd defendant that these vouchers Ex. A-1 and Ex. A-2 relate to some sale transaction and consideration cannot be believed. The learned Counsel also had taken me through the other oral and documentary evidence available on record.
9. Heard both the Counsels at length and also perused the material available on record. The following points arise for consideration in this Appeal :
(a) Whether in the facts and circumstances of the case, and the stand taken by the appellants/defendants, the suit can be decreed ?
(b) Whether the suit can be decreed as against defendants 3 to 5 and also in view of the specific stand taken by the defendants in this regard ?
(c) Whether there is privity of contract between respondent/plaintiff and defendants 3 to 5?
(d) Whether defendants 3 to 5 are necessary and proper parties to the suit ?
(e) Whether the Hindupur Court is having jurisdiction to try the suit ?
(f) Whether the suit is within limitation ? (g) To what relief ? Points (a) to (d) : For the purpose of convenience, the Points (a) to (d) can be dealt with together.
10. In the pleading, it is mentioned that the 1st defendant is a registered firm at Bangalore and defendants 2 to 5 are the partners of the 1st defendant firm. Defendants 3 to 5 are the sons of the 2nd defendant. Apart from this, PW-1 also stated in his evidence that it is a registered firm. Ex. A-1 and Ex. A-2 are the vouchers dated 9.11.1982 and 13.11.1982 and their carbon copies are Ex. B-1 and Ex. B-2 respectively. It is interesting to note that in the said vouchers also it is mentioned as “for Sri Ramakrishna Commercial Corporation” and at the bottom, the word “partner” is printed. Ex. B-7 is the voucher book containing Ex. B-1 and Ex. B-2 also and other carbon copies bearing Nos. 1101 to 1150. The word “partner” is printed in all the vouchers inclusive of Ex. A-1 and Ex. A-2 and though PW-1 had stated in his chief-examination that the 2nd defendant informed him that the 1st defendant is a partnership firm, there was no cross-examination on this aspect. Ex B-3 is the Assessment Order dated 10.3.1982 passed by V Income Tax Officer, Circle II, Bangalore for the year 1979-80 and the name of the assessee was mentioned as D.E. Balaramaiah, the proprietor of Sri Ramakrishna Commercial Corporation. Ex. B-4 and Ex. B-5 are demand notices issued by Income-tax Department showing D.E. Balaramaiah i.e., the 2nd defendant, as Proprietor of Sri Ramakrishna Commercial Corporation for the Assessment Years 1976-77 and 1977-78. It is relevant to note here that these periods do not relate to the periods specified under Fix. A-1 and Ex. A-2. The 2nd defendant was examined as DW-1 and he had stated in his evidence that he was maintaining regular day book for the 1st defendant firm which was marked as Ex. B-6. In Ex. B-6 there are three types of rubber stamps affixed and hence the Trail Court after detailed discussion had arrived at a conclusion that Ex. B-6 was being maintained to suit his own convenience. As can be seen from Ex. B-7 voucher book, the 4th and the 5h defendants had signed the vouchers specifying as partners of the 1st defendant firm However, PW-1 had made an attempt to explain away saying that it is a mistake and that he had discovered the mistake only on receipt of Ex. A-3 notice. After appreciating the evidence of both PW-1 and DW-1 a finding had been recorded that in view of the evidence of PW-1 and also DW-1 and Ex B-7 and Ex. A-1 and Ex. A-2. and especially in view of the fact that the other defendants had not chosen to enter into the witness box to negative the stand taken by the plaintiff/ respondent, it can be safely concluded that the other defendants 3 to 5 also are the partners of the 1st defendanl firm. Section 68 of the Indian Partnership Act dealing with Rules of evidence reads as follows:
“(1) Any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated.
(2) A certified copy of any entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein.”
In V. Anjaneya v. M.G. Brothers, it was held that Section 68 of the Indian Partnership Act does not exclude any mode otherwise than producing extract of Register of Firms by which a person can be established to be a partner of the firm. Hence, In the light of the same, since a finding had been recorded by the Trial Court on the other oral and documentary evidence which had been discussed supra, I am not included to disturb the said finding of fact in this Appeal.
11. Coming to the stand taken by the defendants that Exs. A-1 and A-2 vouchers relate to the consideration in connection with sale transactions and not in relation to any loan transaction simplicitor, it is pertinent to note that the recitals of Exs. A-4, A-5, A-6 and A-7 belie the stand taken by the defendants in this regard. The recitals clearly go to show that the consideration had been paid by way of demand drafts and in fact the Trial Court on appreciation of the evidence of PW-1 and DW-1 in detail and also Ex. A-1 and A-2 and Exs. B-1 to B-7 had arrived at a conclusion that the loan transaction covered by Exs. A-1 and A-2 had been well established and proved as against the defendants and had ultimately decreed the suit. In fact, at paragraph-9 of the judgment of the Trial Court, all the factual details had been dealt with in this regard. Hence, I am not inclined to accept the stand taken by the defendants that Exs. A-1 and A-2 transactions represent or relate to the sale consideration covered by Exs. A-4 to A-7.
Point (e) :
12. The next question is that an attempt was made to say that the Court at Hindupur had no jurisdiction to entertain the suit. In view of Exs. A-1 and A-2 and also the clear evidence of lending of amount at Hindupur as deposed by PW-1, I am of the considered opinion that the Court at Hindupur is having jurisdiction to entertain the suit.
Point (f) :
13. Coming to the aspect of limitation, Ex. A-1 voucher is dated 9.11.1982 and the plaint was presented on 13.11.1985 and 9.11.1985 was a second Saturday and 10.11.1985 was Sunday and 11.11.1985 and 12.11.1985 were also public holidays and hence the point was presented on 13.11.1985 and hence the suit is within limitation since it was presented immediately on the next day after the holidays and the limitation had expired during the holidays.
Point (g) :
14. In view of the findings which had been recorded by me, the Appeal is devoid of merits and accordingly the Appeal is dismissed with costs.