{"id":261616,"date":"2006-09-19T00:00:00","date_gmt":"2006-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-bhat-vs-ms-leelaram-shevaram-on-19-september-2006"},"modified":"2014-10-10T11:08:22","modified_gmt":"2014-10-10T05:38:22","slug":"ram-bhat-vs-ms-leelaram-shevaram-on-19-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-bhat-vs-ms-leelaram-shevaram-on-19-september-2006","title":{"rendered":"Ram Bhat vs M\/S.Leelaram Shevaram &#8230; on 19 September, 2006"},"content":{"rendered":"<div class=\"docsource_main\">Kerala High Court<\/div>\n<div class=\"doc_title\">Ram Bhat vs M\/S.Leelaram Shevaram &#8230; on 19 September, 2006<\/div>\n<pre id=\"pre_1\">       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS No. 104 of 1994()\n\n\n\n1. RAM BHAT\n                      ...  Petitioner\n\n                        Vs\n\n1. M\/S.LEELARAM SHEVARAM (INDIA)PVT.LTD.\n                       ...       Respondent\n\n                For Petitioner  :SRI A.RAMA PRABHU,R.LAKSHMI NARAYAN\n\n                For Respondent  :SRI K.N.SIVASANKARAN,MAYANKUTTY MATHER,\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :19\/09\/2006\n\n O R D E R\n                                         V. RAMKUMAR, J.\n                                  ..................................................\n                                       A.S. NO. 104 OF  1994\n                                  ..................................................\n                                           Dated: 19-09-2006\n\n\n                                               JUDGMENT\n<\/pre>\n<p id=\"p_1\">        Defendants 3 and 4 in O.S. 97\/91 on the file of the   Principal   Sub Court,<\/p>\n<p>Kochi, are the appellants in this appeal.   The said suit instituted by respondents 1<\/p>\n<p>and 2 herein  was for realisation  of a sum of Rs. 41,113.75 together with interest at<\/p>\n<p>the rate of 15% totaling altogether to Rs. 55,112.75.\n<\/p>\n<p id=\"p_1\">\n<p id=\"p_2\">                           THE PLAINT AVERMENTS IN BRIEF:\n<\/p>\n<p id=\"p_3\">\n<p id=\"p_4\">        2.      The case of the plaintiffs can be summarised  as follows:-<\/p>\n<p>        The first plaintiff  is a Company  by name   M\/s. Leelaram Shevaram (India)<\/p>\n<p>Pvt.Ltd.   represented   by   its   Manager,   the     2nd  plaintiff.     The   first   defendant<\/p>\n<p>represented by defendants  2 and 5, is a registered partnership firm by name Sri<\/p>\n<p>Ram Traders  of which defendants 2 to 5 are the partners.  On 11-7-1988 the first<\/p>\n<p>defendant firm purchased 145 bags of   boiled rice at the rate of Rs. 440 quintal.<\/p>\n<p>The total  value of the goods so purchased was Rs. 48,113.75   After the purchase<\/p>\n<p>of goods, the   first defendant firm issued Ext.A3 cheque for the aforesaid amount.<\/p>\n<p>When   the cheque was presented for encashment before the drawee bank it was<\/p>\n<p>dishonoured.  Even though   the defendants   were prosecuted before the Criminal<\/p>\n<p>Court it was not successful for the reason that the cheque issued was a post dated<\/p>\n<p>cheque.     The   2nd  and   5th  defendants   had   filed   a  suit   before   the   Munsiff&#8217;s   Court,<\/p>\n<p><span class=\"hidden_text\" id=\"span_1\">A.S. NO. 104\/94                                  -:2:-<\/span><\/p>\n<p>Cochin   as   O.S.   782\/1988   seeking   a   perpetual   injunction   restraining   the   plaintiff<\/p>\n<p>herein from initiating any police action.   While so, defendants 4 and 5 expressed a<\/p>\n<p>desire   to settle the matter and   clear the liability.         The defendants had  been<\/p>\n<p>requesting   for   time   to   discharge   the   debt.       They   had   paid   only   a   sum   of     Rs.<\/p>\n<p>7,000\/-. On 26-9-1988 defendants 4 and 5 executed Ext.A5 promissory note for Rs.<\/p>\n<p>48,113\/-   to   the   2nd  plaintiff   undertaking   to   pay   the   said   amount.     On   that   day   a<\/p>\n<p>scooter was entrusted to the 2nd plaintiff requesting her  to sell the same and adjust<\/p>\n<p>its value towards  the  outstanding  liability. On  5-7-1989 a notice  was sent  by the<\/p>\n<p>plaintiffs calling upon defendants 2 to 5 to pay the amounts due and discharge the<\/p>\n<p>liability.  On receipt of notice defendants 4 and 5 have caused  a reply notice to be<\/p>\n<p>sent   denying their liability.   The balance amount due   is Rs. 41,113.75 which is<\/p>\n<p>payable with 15% interest thereon.   Hence the suit.\n<\/p>\n<p id=\"p_5\">\n<p id=\"p_6\">                                    PLEADINGS IN DEFENCE<\/p>\n<p id=\"p_7\">        3.       Defendants 1, 2 and 5 did not enter appearance and they were set ex<\/p>\n<p>parte.     The   suit   was   resisted   by   defendants   3   and     4   who   filed   a   joint   written<\/p>\n<p>statement  contending inter alia  as follows:-\n<\/p>\n<p id=\"p_8\">\n<p id=\"p_9\">        These defendants   are not partners of the first defendant firm.   The alleged<\/p>\n<p>purchase  of rice  is also denied.  These defendants had no connection  or business<\/p>\n<p>dealings with the first plaintiff.  After 9-9-1987 these defendants have no connection<\/p>\n<p>or dealings with the first defendant firm.  The complaint alleged by the plaintiff was<\/p>\n<p>investigated by  the Mattancherry police and tried by the J.F.C.M., Kochi which  had<\/p>\n<p><span class=\"hidden_text\" id=\"span_1\">A.S. NO. 104\/94                                  -:3:-<\/span><\/p>\n<p>acquitted these defendants  after trial.  These defendants had not met the plaintiff to<\/p>\n<p>settle the matter.  The execution of Ext.A5 promissory note on 26-9-1988 is denied.<\/p>\n<p>The   2nd  plaintiff   had   filed   a   criminal   complaint     before   the   Mattancherry   police.<\/p>\n<p>Pursuant   to the illegal  influence exerted by the 2nd plaintiff  the 4th defendant was<\/p>\n<p>taken   to   the   police   station     by     the     Divisional   \/Circle   Inspector   of   Police,<\/p>\n<p>Mattancherry at 12 noon on 26-9-1988.  He was detained in the police station till 7<\/p>\n<p>&#8216;0&#8217; clock in the night.  During the said detention the 5th defendant was also brought<\/p>\n<p>into   the   police   station.     The   signatures   of   defendants     4   and     5     were     forcibly<\/p>\n<p>obtained under threat,  coercion, intimidation, criminal force and all sorts of unlawful<\/p>\n<p>means by the Divisional Inspector who   thus got Ext.A5 promissory note executed<\/p>\n<p>under   duress.     A   scooter   belonging   to   a   relative   of   the   4th    defendant   was   also<\/p>\n<p>forcibly taken   and handed over to the 2nd  plaintiff.   On the next day itself these<\/p>\n<p>defendants had issued a lawyer notice to the  Divisional Inspector of Police and the<\/p>\n<p>2nd plaintiff.  To the lawyer notice issued by the plaintiff before the  institution of the<\/p>\n<p>suit these defendants had sent a proper reply.   Defendants 2 and 5 who are the<\/p>\n<p>partners of the first defendant firm had filed an  insolvency petition before  this court<\/p>\n<p>and the plaintiff is aware of the said proceedings.  It was suppressing its knowledge<\/p>\n<p>about the insolvency proceedings that the plaintiff has instituted the present suit with<\/p>\n<p>the   only   purpose   of   harassing   these   defendants.         These   defendants   are<\/p>\n<p>unnecessary    parties   to the suit which is  not  maintainable.    The 2nd  respondent<\/p>\n<p>plaintiff is not competent to represent the first plaintiff company.  The   suit is liable<\/p>\n<p><span class=\"hidden_text\" id=\"span_2\">A.S. NO. 104\/94                                  -:4:-<\/span><\/p>\n<p>to be dismissed with costs.\n<\/p>\n<p id=\"p_10\">\n<p id=\"p_11\">                                              THE TRIAL<\/p>\n<p id=\"p_12\">          4.     The   court   below   framed   seven   issues   for   trial.     On   the   side   of   the<\/p>\n<p>plaintiffs the 2nd plaintiff was examined as  P.W.1 and Exts. A1 to A6 were marked.<\/p>\n<p>On the side of the defendants the 4th defendant was examined as D.W.1.  An officer<\/p>\n<p>of the Union Bank of  Cochin  and a peon  employed in Naveen Agencies,  Cochin,<\/p>\n<p>were  examined as DWs2 and 3 respectively to prove the forcible  execution of the<\/p>\n<p>Ext.A5 promissory note from the police station under duress.  Exts. B1 to B17 were<\/p>\n<p>also got marked.\n<\/p>\n<p id=\"p_13\">\n<p id=\"p_14\">          5.     The learned Subordinate Judge after trial, as per judgment and decree<\/p>\n<p>dated   29-6-1993   decreed   the   suit   as   prayed   for   on   the   original   cause   of   action<\/p>\n<p>although  she  found  that   Ext.A5   promissory note  was  vitiated  by  coercion,  undue<\/p>\n<p>influence etc.  It is the said decree which is assailed in this appeal by defendants 3<\/p>\n<p>and 4.\n<\/p>\n<p id=\"p_15\">\n<p id=\"p_16\">          6.     I heard the respective counsel appearing on either side.<\/p>\n<p id=\"p_17\">                       ARGUMENTS IN SUPPORT OF THE APPEAL<\/p>\n<p id=\"p_18\">          7.     Assailing the decree passed by the court below Advocate Smt. Ranjini<\/p>\n<p>made the following submissions before me:-\n<\/p>\n<p id=\"p_19\">\n<p id=\"p_20\">          Ext.B10   is   the   partnership   deed   dated   9-9-1987   whereunder   the   first<\/p>\n<p>defendant firm then consisting  of  four partners was re-constituted consequent on<\/p>\n<p>defendants 3 and 4 retiring from the firm and defendants 2 and 5 continued   as<\/p>\n<p><span class=\"hidden_text\" id=\"span_3\">A.S. NO. 104\/94                                -:5:-<\/span><\/p>\n<p>partners in the firm.   Along with Ext.B10     there   is also the certified copy of the<\/p>\n<p>notice issued under Sec. 63 (1) of the <a href=\"\/doc\/107341\/\" id=\"a_1\">Partnership Act<\/a>,   1932 which indicates the<\/p>\n<p>retirement of   defendants 3 and 4 from the firm with effect from 9-9-1987.       Even<\/p>\n<p>according to the plaintiff, the transaction in question namely, the purchase of rice<\/p>\n<p>took place of 11-7-1988 which is 10 months after the retirement   of defendants 3<\/p>\n<p>and 4.  Ext.A3 cheque and Ext.A5 promissory note are all on dates still subsequent<\/p>\n<p>to 11-7-1988.  In para 8 of Ext.B1 counter affidavit filed by the 2nd  plaintiff  herein in<\/p>\n<p>O.S.782\/1988  instituted by defendants 2 and 5  herein before the Munsiff&#8217;s Court,<\/p>\n<p>Kochi,  she has admitted  that she was aware of the retirement of the two partners<\/p>\n<p>on 9-9-1987.   In Ext.B14 interlocutory application in the above suit as well   as in<\/p>\n<p>Ext.B8 indigent petition defendants 2 and 5 have unequivocally asserted that from<\/p>\n<p>9-9-1987   onwards   they   are   the   surviving   partners       of   the   firm.     Similarly,   in<\/p>\n<p>paragraph 5 of   Ext.B5 judgment in C.C. 70\/89 on the file of JFCM-I, Cochin it is<\/p>\n<p>mentioned that the present 4th defendant who was  the 4th accused in the case had<\/p>\n<p>stated that he and his father Ram Bhat are not partners in the firm since 9-9-1987.<\/p>\n<p>The 2nd plaintiff was a party to all the above proceedings  and was aware about the<\/p>\n<p>above assertion made by defendants 2, 4 and 5.  Ext.B7 is the deposition of the 2nd<\/p>\n<p>plaintiff  herein in C.C  70\/1989  wherein a  specific suggestion  was put  to her  that<\/p>\n<p>present defendants 3 and 4 who were accused  Nos.  1 and 4  in that case were not<\/p>\n<p>partners of the firm since 9-9-1987.  Her   answer to the said suggestion   was that<\/p>\n<p>she does not know about that.   Even in the present plaint the specific averment in<\/p>\n<p><span class=\"hidden_text\" id=\"span_4\">A.S. NO. 104\/94                                  -:6:-<\/span><\/p>\n<p>paragraph   2   is   that   the   first   defendant   is   a   partnership     firm   represented   by   its<\/p>\n<p>partners defendants 2 and 5.  This means that defendants 3 and 4 are not partners<\/p>\n<p>of the said firm.   The 2nd  plaintiff examined as DW1 in this case does not say that<\/p>\n<p>defendants 3 and 4 are partners of the firm.  In order to rope in defendants 3 and 4,<\/p>\n<p>DW1     would   have   it   that   defendants   3   and   4   had   called   her   over   the   phone<\/p>\n<p>regarding the transaction in question.  As against this the 4th defendant examined as<\/p>\n<p>D.W.1 has categorically stated that defendants 3 and 4 retired from the firm on 9-9-<\/p>\n<p>1987   on   which   day   the   firm   was   re-constituted.       Ext.A5   promissory   note   was<\/p>\n<p>executed by defendants 4 and 5 under duress from the police station and this case<\/p>\n<p>of the defendants has been upheld by the court below.   Hence the decree granted<\/p>\n<p>on   the   basis   of   the   original   cause   of   action   as   against   the   appellants   is   clearly<\/p>\n<p>unsustainable.\n<\/p>\n<p id=\"p_21\">\n<p id=\"p_22\">                                     JUDICIAL EVALUATION<\/p>\n<p id=\"p_23\">        8.       I am afraid that I cannot agree with the above submissions.   Ext.B10<\/p>\n<p>re-constituted   partnership   deed   dated   9-9-1987   itself   recites   that   the   original<\/p>\n<p>partnership deed with the four partners was registered with the  Registrar of Firms in<\/p>\n<p>the year 1985.   The name of the firm is Sri. Ram Traders.   The   original partners<\/p>\n<p>were Suresh Chandra Bhat (D2), Ram Bhat (D3), Naveen Chandra Bhat (D4) and<\/p>\n<p>Dinesh Bhat (D5). The     3rd  defendant Ram   Bhat is   admittedly   the father of the<\/p>\n<p>other defendants namely defendants 2, 4 and 5.   Ext.B10 further recites that Ram<\/p>\n<p>Bhat   and   Naveen   Chandra   Bhat     (D3   and   D4   respectively)   expressed   their<\/p>\n<p><span class=\"hidden_text\" id=\"span_5\">A.S. NO. 104\/94                                -:7:-<\/span><\/p>\n<p>willingness   to   retire   from   the   firm   with   effect   from   9-9-1987   and   therefore   the<\/p>\n<p>remaining two partners have decided  to  continue the business as a going concern<\/p>\n<p>under the  same name and style.  The certified copy of the acknowledgment issued<\/p>\n<p>by the Registrar   of Firms and appended   to Ext. B10 shows that a notice under<\/p>\n<p><a href=\"\/doc\/788286\/\" id=\"a_1\">Section 63<\/a> (1) of the <a href=\"\/doc\/107341\/\" id=\"a_2\">Indian Partnership Act<\/a>, 1932 (hereinafter referred to as the Act<\/p>\n<p>for short)has been issued to the Registrar of  firms.   But then there is nothing  to<\/p>\n<p>indicate that the plaintiff was aware of the retirement of defendants 3 and 4 on 11-7-<\/p>\n<p>1988 when the   first defendant firm purchased 145 bags of rice from the plaintiff<\/p>\n<p>company.  In Ext.B1 counter-affidavit, there is no admission by the 2nd plaintiff that<\/p>\n<p>she was  aware of the  retirement of defendants 3 and 4 from the firm on 9-9-1987.<\/p>\n<p>On the contrary, in Ext.B1  counter affidavit sworn to by her on 9-9-1998 what   she<\/p>\n<p>has stated is that the Ist petitioner therein (D2 herein) by signing in the cheque on<\/p>\n<p>11-7-1988 as a partner of the firm was being dishonest   since he was thereafter<\/p>\n<p>contending that he retired from the firm on 9-9-1987.   Merely because in  Exts. B8,<\/p>\n<p>B11  and  B14  which  were  long  after  the   transaction    in  question,  the  defendants<\/p>\n<p>asserted that defendants 3 and 4 had retired  from the firm with effect from 9-9-87 it<\/p>\n<p>does not mean that the plaintiffs was aware of such retirement on 11-7-1988 when<\/p>\n<p>the transaction in question   was entered into or any day prior to that.   On their own<\/p>\n<p>admission , defendants 3 and 4 were partners of the firm from 1985 till 9-9-1987.<\/p>\n<p>There is absolutely no acceptable evidence adduced in the case to show that the<\/p>\n<p>plaintiff was aware of the retirement of  defendants 3 and 4 when the first defendant<\/p>\n<p><span class=\"hidden_text\" id=\"span_6\">A.S. NO. 104\/94                                -:8:-<\/span><\/p>\n<p>firm   purchased   145   bags   of   rice     from   the   plaintiff   company   on   11-7-1988.     As<\/p>\n<p>against defendants 1, 2 and 5 who remained ex parte there   is already a decree.<\/p>\n<p>The  only  question  which  survives  for  consideration    is as  to  whether   the  decree<\/p>\n<p>passed as against the appellants who are  defendants 3 and 4 is unsustainable  for<\/p>\n<p>the   reason  that   the  transaction   in  question  was  entered   into  subsequent  to   their<\/p>\n<p>retirement from the first defendant firm.\n<\/p>\n<p id=\"p_24\">\n<p id=\"p_25\">        9.      The   mode   of   retirement   and   the   consequences   of   retirement     of   a<\/p>\n<p>partner are to be found in Sec. 32 of the Act which reads as follows:-<\/p>\n<blockquote id=\"blockquote_1\"><p>       &#8220;Retirement of a partner:-  (1) A partner may retire, &#8211;\n<\/p><\/blockquote>\n<blockquote id=\"blockquote_1\"><p>                a)  with the consent of all the other partners,\n<\/p><\/blockquote>\n<blockquote id=\"blockquote_2\"><p>                b)  in accordance with an express agreement by the partners,<br \/>\n                or\n<\/p><\/blockquote>\n<blockquote id=\"blockquote_3\"><p>                c)  where the partnership is at will, by giving notice in writing to<br \/>\n       all the other partners of  his intention to retire.<\/p><\/blockquote>\n<blockquote id=\"blockquote_4\"><p>                  2)   A retiring partner may be discharged from any liability to<br \/>\n          any third party for acts   of the firm done before his retirement  by an<br \/>\n          agreement made by him with such third party and the partners of<br \/>\n          the reconstituted firm, and such   agreement may be implied by a<br \/>\n          course   of   dealing   between   such   third   party   and   the   reconstituted<br \/>\n          firm after he had knowledge of the retirement.\n<\/p><\/blockquote>\n<blockquote id=\"blockquote_5\"><p>                  3)     Notwithstanding the  retirement of a partner from a firm,<br \/>\n          he and the partners continue to be liable as partners to third parties<br \/>\n          for any act done by any of them which would have been an act of<br \/>\n          the firm if done before the retirement, until public notice is given of<br \/>\n          the retirement.\n<\/p><\/blockquote>\n<blockquote id=\"blockquote_6\"><p>                  Provided that a retired partner is not liable to any third party<br \/>\n          who deals with the firm without knowing that he was a partner.\n<\/p><\/blockquote>\n<blockquote id=\"blockquote_7\"><p>                  4)  Notices under sub-section (3) may be given by the retired<br \/>\n          partner or by any partner of the reconstituted firm&#8221;.<\/p><\/blockquote>\n<p id=\"p_26\">\n<p><span class=\"hidden_text\" id=\"span_7\">A.S. NO. 104\/94                                 -:9:-<\/span><\/p>\n<p id=\"p_27\">        10.     Thus,   even after retirement from the firm, the quondam   partner will<\/p>\n<p>continue to be liable to a  third party by virtue of Sec. 32 (2) of the Act   for any pre-<\/p>\n<p>retirement transaction   or liability unless he is discharged from such liability by an<\/p>\n<p>agreement (either express or implied) made by him  with such  third party  and the<\/p>\n<p>surviving partners of the   re-constituted firm.   With regard to any post-retirement<\/p>\n<p>transaction or liability also such quondam     partner will continue to be liable until<\/p>\n<p>public   notice   in   the   manner   provided   under   Sec.   72   of   the   Act   is   given   of   his<\/p>\n<p>retirement, in view of Sec. 32 (3) of the Act which is enacted on the well known<\/p>\n<p>principle   of holding out.   A person   who has held himself out as a partner will be<\/p>\n<p>presumed to hold the said status until he informs all concerned that he has ceased<\/p>\n<p>to be so.   In the case of a registered firm (the first defendant  in this   case is a<\/p>\n<p>registered firm) the mode of  giving a public notice is laid down under Sec. 72 (a)  of<\/p>\n<p>the Act.  As per the said provision there should be a notice of change given to the<\/p>\n<p>Registrar of Firms under Sec. 63 (1) of the Act and a notice   by publication in the<\/p>\n<p>official   Gazette  and  a   notice     in   at   least   one     vernacular   newspaper   having<\/p>\n<p>circulation in the  district where the firm has its place or principal place of business.<\/p>\n<p>See also <a href=\"\/doc\/1909684\/\" id=\"a_3\">C. Assiamma v. State Bank of Mysore<\/a> &#8211;  AIR 1990 Kerala 157.   But  if<\/p>\n<p>any third party  has dealt with the firm without knowing that the retired  partner was<\/p>\n<p>a partner of the firm, then the retired  partner would not be liable to  such  third party<\/p>\n<p>and in  such a  case there is no need for a public notice so as to absolve the retired<\/p>\n<p>partner from his liability   qua  such third party.  The burden in such a case  will be<\/p>\n<p><span class=\"hidden_text\" id=\"span_8\">A.S. NO. 104\/94                                 -:10:-<\/span><\/p>\n<p>on the retired partner (who wants to avoid the liability) to show that such  third  had<\/p>\n<p>dealt  with the firm without knowing that such  retired partner was a partner of the<\/p>\n<p>firm.\n<\/p>\n<p id=\"p_28\">\n<p id=\"p_29\">         11.     Coming to the facts of this case,  as indicated earlier the appellants or<\/p>\n<p>any of the other defendants have not been able to show that on 11-7-1988  when<\/p>\n<p>the   plaintiff   entered   into   the   transaction   in   question   the   plaintiff   was   aware   that<\/p>\n<p>defendants 3 and 4   had   retired from the firm on 9-9-1987.   At page   6 of the<\/p>\n<p>deposition of the 4th defendant  examined as DW1 he has admitted that  no notice<\/p>\n<p>of   retirement   was  given     either   in  the   Gazette  or  in  the  newspaper  and  that   no<\/p>\n<p>public notice was also given.  If so, by virtue of Sec. 32(3) of the Act defendants 3<\/p>\n<p>and 4  will continue to be  liable for the transaction in question until public notice in<\/p>\n<p>the manner provided under Sec. 72 (a) of the Act has  been given notwithstanding<\/p>\n<p>the fact that   the transaction in question is a post- retirement transaction.     Even<\/p>\n<p>assuming that a notice of change under sec.63(1) of the Act has been given to the<\/p>\n<p>Registrar   of   Firms,   that   by   itself   will   not   be   sufficient   public   notice   within   the<\/p>\n<p>meaning of sec.72(a) of the Act.\n<\/p>\n<p id=\"p_30\">\n<p id=\"p_31\">         12.      It is true that Ext.A5 promissory note has been found to be  vitiated by<\/p>\n<p>coercion, intimidation  etc. since the same was found to have been executed  from<\/p>\n<p>the police station under duress and attracting the ratio decided in K.C. Thomas v.<\/p>\n<p>Supt. of Police &#8211; 1980 KLT 151 and   <a href=\"\/doc\/80201601\/\" id=\"a_4\">Mathew v. Kuruvila<\/a>   &#8211; 1983 KLT 104.   But<\/p>\n<p>then   the   suit   is   not   based   on   Ext.A5   promissory   note   alone     but   based   on   the<\/p>\n<p><span class=\"hidden_text\" id=\"span_9\">A.S. NO. 104\/94                                 -:11:-<\/span><\/p>\n<p>original cause of action as well.  In paragraph 8  of the plaint it has been specifically<\/p>\n<p>averred as follows:\n<\/p>\n<p id=\"p_32\">\n<blockquote id=\"blockquote_8\"><p>                      &#8220;Cause of action in the suit arose on 11-7-1988  when<br \/>\n               the goods were purchased and cheque was issued, on 26-9-<br \/>\n               1988 when the demand promissory note was executed  for the<br \/>\n               balance   amount   due   and   thereafter   in   Mattancherry   Village<br \/>\n               within the jurisdiction of this Hon&#8217;ble Court&#8221;.\n<\/p><\/blockquote>\n<p id=\"p_33\">The suit  was filed on 5-4-1991 which is well within  three years  of the transaction<\/p>\n<p>in question.     Hence the court below   was perfectly justified in granting a decree<\/p>\n<p>against all the defendants as  prayed for.\n<\/p>\n<p id=\"p_34\">\n<p id=\"p_35\">        13.       Equally   misconceived   is   the   contention   that   the   plaint   shows<\/p>\n<p>defendants 2  and 5 alone as the partners representing the firm.  Defendants 3 and<\/p>\n<p>4 are also described as partners of the Ist defendant firm.  Even if the plaint filed on<\/p>\n<p>5-4-1991 did not show  defendants 3 and 4 as partners, that will not in any manner<\/p>\n<p>affect   their   liability   since   despite   their   retirement   with   effect   from   9-9-1987,   they<\/p>\n<p>continued to be liable for want of public notice of their retirement.  By virtue of Sec.<\/p>\n<p>25 of the Act, the liability of the partners is joint and several.   Each   partner is a<\/p>\n<p>representative  of the  other partners and is an agent  as well as principal.   Every<\/p>\n<p>partner is liable for &#8220;an act of the firm&#8221; which expression has been defined to mean<\/p>\n<p>any act or omission by all or any of the partners or any agent of the firm which gives<\/p>\n<p>rise to a right enforceable by or against the firm.   (Vide Sham Sunder v. State of<\/p>\n<p>Haryana &#8211; AIR 1989 SC 1982 <a href=\"\/doc\/346943\/\" id=\"a_5\">Mymoonath Beevi v. State of Kerala<\/a> &#8211; 2005 (4).<\/p>\n<p>KLT 174).   Here the purchase of rice was by the 2nd defendant on behalf of and in<\/p>\n<p><span class=\"hidden_text\" id=\"span_10\">A.S. NO. 104\/94                           -:12:-<\/span><\/p>\n<p>the name of the Ist defendant firm of which defendants 2 to 5 were partners from<\/p>\n<p>1985     onwards       and   notwithstanding   the   retirement   of   defendants   3   and   4<\/p>\n<p>therefrom with effect from 9-9-1987, they also continued to be liable since no public<\/p>\n<p>notice  was admittedly given.   Under these circumstances, the conclusion reached<\/p>\n<p>by the Court below  cannot be faulted.\n<\/p>\n<p id=\"p_36\">\n<p id=\"p_37\">        In the result, this appeal is dismissed confirming the judgment and decree<\/p>\n<p>passed by the court below.   However, in the circumstances     in the case, parties<\/p>\n<p>shall  hear their respective costs in this appeal.\n<\/p>\n<p id=\"p_38\">\n<p id=\"p_39\">                                                    V. RAMKUMAR, JUDGE.\n<\/p>\n<p id=\"p_40\">\n<p>ani.\n<\/p>\n<p id=\"p_41\">\n<span class=\"hidden_text\" id=\"span_11\">A.S. NO. 104\/94    -:13:-<\/span><\/p>\n<p id=\"p_42\">                             V.RAMKUMAR, J.\n<\/p>\n<p id=\"p_43\">\n<p>                             ==============<\/p>\n<p>                             A.S. NO. 104 OF 1994<\/p>\n<p>                                  JUDGMENT<\/p>\n<p>                             ==============<\/p>\n<p>                             DATED: 19-09-2006<\/p>\n<p><span class=\"hidden_text\" id=\"span_12\">A.S. NO. 104\/94    -:14:-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Kerala High Court Ram Bhat vs M\/S.Leelaram Shevaram &#8230; on 19 September, 2006 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS No. 104 of 1994() 1. RAM BHAT &#8230; Petitioner Vs 1. M\/S.LEELARAM SHEVARAM (INDIA)PVT.LTD. &#8230; Respondent For Petitioner :SRI A.RAMA PRABHU,R.LAKSHMI NARAYAN For Respondent :SRI K.N.SIVASANKARAN,MAYANKUTTY MATHER, The Hon&#8217;ble MR. Justice V.RAMKUMAR Dated [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-261616","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ram Bhat vs M\/S.Leelaram Shevaram ... on 19 September, 2006 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-bhat-vs-ms-leelaram-shevaram-on-19-september-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Bhat vs M\/S.Leelaram Shevaram ... on 19 September, 2006 - Free Judgements of Supreme Court &amp; 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