Madras High Court
Arul Jothi & Co., Rep. By Its Partner M. ... vs Sri Shanmugha Trading Co., Rep. By Its ... on 25 February, 1998
Equivalent citations: 1998(1)CTC432
ORDER
1. Defendants are the appellants. The suit O.S.No.1414 of 1981 before the District Munsif's Court, Erode was filed by the respondent against the appellants for recovery of Rs. 8099.83 due on dealings between the parties. It is not necessary to deal in extenso with the respective contentions of the parties except to say that the dealings between the parties concluded by October '75 and the respondent plaintiff wanted to rely on Ex.A.-24, dated 13.3.1978 to make a claim which was an acknowledgment by the second appellant who was a partner in the first appellant firm. Under Ex.A-24 a sum of Rs. 50 was paid and according to the respondent the suit filed on 21.10.1980 within three years of Ex.A-24 would be in time.
2. The appellants resisted the suit on several grounds. The main contention was that the second appellant had not signed any receipt that the signature in Ex.A-24 was not his and that in any event he had no authority to acknowledge the debt of the firm.
3. The trial Court found that the signature disputed was actually the signature of the second appellant. However the trial Court found that it had not been established by the respondent that the second appellant had authority to sign on behalf of the partnership firm first appellant. The trial Court dismissed the suit by its judgment and decree dated 30.3.1983 on the ground of limitation. The respondent filed appeal A.S.No.70 of 1983 before the District Court, Periyar District at Erode. The learned District Judge by his judgment and decree dated 19.10.1983 reversed the decision of the trial Court allowed the appeal and decreed the suit as prayed for with costs. Aggrieved, the present second appeal has been filed.
4. At the time of admission the following substantial questions of law were raised for decision in the second appeal.
"1. Whether the lower appellate Court has committed an error in holding that the firm and the partners are liable for the suit claim, in the absence of material to show that the second defendant signed Ex.A-24 in his capacity as a partner and on behalf of the partnership firm.
2. Whether the lower appellate Court has committed an error in treating the bare signature of the second defendant in Ex.A-24 as an incontrovertible ac-knowledgment of liability by him on behalf of the partnership firm?
3. Whether the lower appellate Court has failed to take into consideration the applicability of Section 20(2) of the Limitation Act to the facts of the case?
4. Whether the lower appellate Court was right in holding that Section 20(2) of the Limitation Act has no scope of operation in this case?"
5. Miss. Mala, learned counsel for the appellants vehemently contended that there was no material to show that the arrangement between the parties was open, mutual and running and the acknowledgment in March 1978 could not be in respect of earlier transactions, Unless it was established that the parties had mutual, open and current account. It should be immediately pointed out that this point was not raised in defence before the trial Court or was canvassed before the lower appellate Court. It is therefore not open to the appellants to raise a new point for which no basis at all had been laid before the Courts below. It is next contended by the learned counsel for the appellants that the Courts below had compared the signature found in Ex.A-24 with the admitted signature of the second appellant and in view of the latest Supreme Court decision reported in O. Bharathan v. K. Sudhakaran, would be a very unsafe method. The learned counsel also pointed out that this decision had been followed by a learned single Judge of this Court reported in Dhanakodi Padayachi v. Muthukumaraswami, 1997 (1) L.W. 402. The decision of the Supreme court arose under Election proceedings and the Supreme Court held that it was very unsafe in election matters to rely on mere comparisation of signatures to reach a finding regarding the genuineness of the signature. The case arose under Election proceedings will not apply to civil proceedings. No doubt, Raju, J. has followed the said decision. A Bench of this Court in Kanthirathinam v. Sajjadi Begum, 1989 (1) L.W. 552 has referred to the decision of the Supreme Court reported in Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531 and held that there is nothing wrong in the Courts themselves making comparison of signatures to ascertain whether the documents in question are genuine or not. The next contention raised by the learned counsel is that the acknowledgment by the second defendant would not bind the first appellant firm and its other partners. In support of the contention the learned counsel relied on the judgment of this Court in Ramavel v. Pandian Automobile Private Limited, . This was referred to by the Courts below also and as has been rightly pointed out by the lower appellate Court that was a case in which a cheque payment was made by some third party and the same was sought to be treated as an acknowledgment of liability and this was not countenanced by the Court. The facts of that case will not apply to the facts of the present case. We have the high authority of a Full Bench decision reported in Pandiri Veeranna v. Grandhi Veerabhadraswami @ Veerabhadrudu, 34 Mad. 373 where there were circumstances available in the case, to hold that the acknowledgment by a partner could be taken as a valid acknowledgment in the absence of direct evidence of a specific authority by one partner with regard to the other partner. It has been found by the lower appellate Court that circumstances in the present case warranted such an inference. The learned District Judge relied on Exs.A-25 to A-32 which were orders for supply of goods from the plaintiff firm and they were all placed by the second appellant. He had acted on behalf of the first appellant firm and the other partners in placing orders for supply of goods from the respondent firm. It clearly showed that the second appellant had authority to act and acknowledgment on behalf of the first appellant firm. Now that it has been held that there was a proper and valid acknowledgment by the second appellant binding the other appellants and the acknowledgment had been made within three years and the last of the dealings between the parties and the suit having been filed within 3 years from the date of Ex.A-24, the finding reached by the lower appellate Court that the suit was not barred by limitation has to be upheld. I have already found that there was enough material to come to the conclusion that the second appellant signed Es.A-24 in his capacity as a partner and on behalf of the partnership firm, namely, the first appellant.
The acknowledgment in Ex.A-24 would be sufficient acknowledgment of the liability of the appellants to the respondent firm. Consequently all the substantial questions of law have to be answered against the appellants and the second appeal will stand dismissed. However there will be no order as to costs.