Rajasthan High Court - Jaipur
Abdul Rehman vs Rameshwar Dayal Prasadilal on 6 January, 1994
Equivalent citations: 1994(2)WLC260, 1994(1)WLN78
JUDGMENT R.S. Verma, J.
1. This appeal by defendant Abdual Rehman is directed against the judgment and decree of the learned Addl. District Judge, Sirohi, whereby suit of respondent-firm Rameshwar Dayal Prasadilal, a registered partner-ship firm, has been decreed for a sum of Rs. 1,22096/- with interest vide judgment dated 27.5.1978. Briefly stated the case of the plaintiff- respondent is that it is a registered partnership firm carrying on business in the name and style of Rameshwar Dayal Prasadilal at Abu Road. Abdul Rehman had money dealings with the plaintiff- firm and the account of Abdul Rehman with the firm was settled on 20.7.1974 and a sum of Rs. 1,07,101/- was found due. Abdul Rehman stipulated to re-pay amount with interest at the rate of 1% per month and executed a promissory note in this regard. The plaintiff-firm demanded the amount a number of times but no payment was made and eventually written notice was served on Abdul Rehman on 6.5.75 but he did not accept the notice. Upon such averments the plaintiff-firm claimed recovery of Rs. 1,07,101/- on account of principal, Rs. 14,933/- on account of interest and Rs. 2/- on account of notice expenses. It prayed for costs. The defendant constested the suit traversing the averments of the plaintiff-firm. It was denied that Abdul Rehman had executed any promissory-note in favour of the plaintiff-firm. It was denied that any settlement of accounts had taken place prior to the alleged execution of the promissory note. It was pleaded that the promissory-note was without consideration. A plea was taken that the stamps bearing the signatures of the defendant on the promissory-note were removed from some other document and were affixed to the disputed promissory note and thus the promissory note was forged. Certain other objections were also raised with which I am not concerned in this appeal. The learned trial Judge framed necessary issues and recorded evidence of the parties. In the oral evidence, plaintiff-firm examined P.W. 1 Ambalal and P.W. 2 Samrathmal. In documentary evidence, the promissory-note in question as also certain other khata entries and promissory note Ex.2 were filed. The defendant did not file any documentary evidence to examine himself in rebuttal.
2. The learned trial Judge after consideration of the evidence on record held that the plaintiff-firm was a duly registered partnership firm and Remshwar Dayal Prasadilal who had signed plaint was a partner and was authorised to file the suit. It held that there were previous dealings between the parties, accounts were settled and the defendant executed the promissory note which was for consideration. It repelled the contention of the defendant that stamps containing signatures of defendant had been removed from some other document and had been affixed on the suit promissory note. Upon such findings, the learned trial Judge decreed the plaintiffs suit as stated earlier. Aggrived, defendant Abdul Rehman has come in appeal.
3. The first contention of the learned Counsel for the appellant is that in this case even though the defendant had denied the execution of the promissory note, the learned trial Judge did not frame any specific issue about the alleged execution of the promissory note. His next contention is that the plaintiff failed to prove that there were previous dealings between the parties and the account had been settled. It is urged that there was a probability that stamps containing signatures of the defendant had been removed from some other document and had been affixed on the suit promissory note. Lastly it was urged that the plaintiff-partnership consisted of two partners, namely, Rameshwar Dayal and Ambalal. Rameshwar Dayal had died during the pendency of the suit. His legal heirs were not impleaded and hence the suit could not have proceeded without impleading the legal heirs or Rameshwar Dayal and as such the suit ought to have been dismissed, as being incompetent. Upon such pleadings it is submitted that the appeal should be accepted and the decree and judgment passed by the learned trial Judge be set aside.
4. The learned Counsel for the plaintiff-respondent has opposed the appeal strenuously and has urged that the judgment and decree of the learned court below is based upon proper and correct appreciation of facts and law and does not call for any interference.
5. First of all I may consider that even though the defendant had denied the execution of the promissory note, a specific issue was not framed in this regard.
6. I may straight-way state that both the patties were alive to this issue. Both the parties have led evidence on this issue and trial court after discussing the evidence of both the sides had arrived at the conclusion that it was defendant Abdul Rehman who had executed the promissory note. It is true that the learned trail court did not frame a specific issue on the point but framed a issue whether the stamps carrying signatures of the defendant had been lifted from any other document and affixed on the suit promissory note. In my opinion, the appellant has not been prejudiced by non-framing of specific issue in any manner and this contention is neither here nor there. In this regard, learned Counsel for the appellant referred to Mohammad Mustafa v. Sri Abu Bakar and Ors. . In my opinion this ruling has no application to the facts of the present case. In that case a particular amendment had been sought and was not allowed by the High Court. The apex Court allowed the application for amendment and permitted the appellant to amend his written statement. The apex Court directed that after amendment being filed the respondents may file rejoinder and raise proper issues on the new pleadings and the court may give parties an opportunity to adduce evidence on the newly raised issues. I fail to appreciate how this ruling has any application on the facts of the present case. It is settled law that in case an issue has not been framed but the parties have been alive to the controversy and have led evidence and have not been prejudiced in any manner by non-framing of the issue, then the finding of the trial court on such aspect of the matter cannot be disturbed. The learned Counsel for the appellant failed to show how any prejudice had been caused to the appellant at all. I, therefore, find that non-framing of specific issue on this point has lost Us importance altogether when both the parties were alive to it and had also led specific evidence on the issue.
7. Now, I may consider whether the finding of the learned trail court that Abdul Rehman had executed a promissory note after settlement of accounts is correct or not. I have gone through the evidence adduced before the learned trail Judge and have critically examined the same. Amba Lal who was partner in the plaintiff-firm, in his sworn testimony has deposed that his firm had some money dealings with Abdul Rehman for last 25 of 30 years and the accounts were explained to Abdul Rehman by the 'munim' of the firm and the 'munim' of the firm had scribed promissory note Ex.1 and Abdul Rehman had affixed stamps on the promissory note and had signed the same. Khata entries were produced by Amba Lal in support of his statement that there were previous dealings between the parties and various sums of rupees had been advanced to Abdul Rehman on different dated e.g., a sum of Rs. 7,000/- was advanced on 5.6.1974, a sum of Rs. 8,000/- was advanced on 8.6.1974 and so on an so forth. It was specifically stated by Amba Lal that all the previous transactions were to tailed and this promissory note Ex.1 was executed. It has been stated by Amba Lal that the promissory note was scribed by 'munim' Samrath Mal. Nothing has come in his cross-examination which may go to discredit him on this aspect of the matter. Smarath Mal is the person who had scribed the promissory note Ex.P. 1. He has specifically stated that he had scribed the promissory-note at the instance of Abdul Rehman and Abdul Rehman had read over the same and had affixed his signatures. In his cross-examination Samrath Mal has clarified that Abdul Rehman had earlier borrowed certain amounts and account was settled and after adding interest, promissory-note had been executed. Nothing has been elicited in the cross-examination of this witness which may dis-credit his evidence. The learned trail Judge had critically evaluated the evidence of both these witnesses. For the reasons given by him, I am in entire agreement with him that plaintiff succeeded in establishing that there were previous dealings between the parties and accounts were settled and Abdul Rehman had executed promissory note in question. I may add that Samarath Mal remained 'munim' with the plaintiff-firm for the period 1972 to 1975. On the day his statement was recorded by the learned trial court, he was no longer munim with the plaintiff- firm. He had, therefore, no subsisting interest in the plaintiff- firm and there is no reason why he will tell a lie to help plaintiff-firm in any manner.
8. The evidence of defendant Abdul Rehman lends credence to the case of the plaintiff-firm. He has admitted that there were dealings between him and the plaintiff-firm but he added that after 1972 he had not dealings with the plaintiff-firm. He has not adduced any cogent or credit worthy evidence to show that his dealings with the plaintiff-firm had come to an end in the year 1972. He has denied that he had executed the promissory-note, though he has admitted that the signatures on the stamps are his. His denial is not worth the paper on which it has been recorded. He has admitted in cross-examination that he had no dispute or differences with plaintiff-firm. He admits that he is a contractor and had been engaged in contractor-ship for last 15 to 20 years. It may be stated that Abdul Rehman has tried to show that he did not maintain any accounts books. As against this the plaintiff had categorically stated that Abdul Rehman had brought his own 'bahis' at the time the accounts were settled. Abdul Rehman did not care to state on oath that he did not bring 'bahis' when the alleged accounts were settled and the promissory-note in question was executed.
9. Abdul Rehman had taken a stand that he was in habit of putting date beneath his signatures and since no date had been affixed below the signatures of Ex.1, promissory-note Ex. 1 should be taken to have been forged. He was confronted with the previous promissory-note Ex.2, which did not carry any date beneath his signature. That shows that Abdul Rehman is not a wholly reliable witness and can tell a lie to support his own case. In my opinion, the learned trial Judge rightly arrived at the conclusion that there were previous dealings between the parties and account was settled as pleaded by the plaintiff-firm and promissory-note Ex. 1 had been executed by Abdul Rehman. I, therefore, decide this point in favour of the respondent plaintiff from and against the appellant.
10. Now, I may deal with the last contention of the learned Counsel for the appellant, namely, that since one of the two partners of the registered partnership firm had expired during the pendency of the suit, the suit could not have been carried on by the sole surviving partner or the firm Amba Lal. In my opinion Section 47 of the Indian Partnership Act deals with such a contingency. This section reads as follows Continuing authority of patents for purposes of winding up. After the dissolution of a firm the authority of each partner to bind the firm, and the other mutal rights and obligations of the partners, continue notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the firm and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise:
Provided that the firm is in no case bound by the acts of a partner who has been adjudicated insolvent, but this proviso does not after the liability of any person who has after he adjudication represented himself or knowingly permitted himself to be represented as a partner of the insolvent.
There is a direct ruling of the apex Court which deals with this point. In Shambhu Dayal v. Chunnilal Devkinandan and Ors. AIR 1980 SC 69, the suit was filed in the name of firm for recovery of loan. Partners of the firm were also impleaded as plaintiffs. One of the partners of the firm died during the pendency of the suit. His legal representatives were not joined as parties to the suit and an objection was taken that suit could not be continued. Placing reliance upon Section 47 of the Indian Partnership Act, the learned Judge decided that even after death of a partner remaining partners can represent the dissolved firm including the interest of the deceased partner to recover may debt due to the firm. In my opinion this ruling clinches the issue.
11. Now, I may take notice of the various rulings cited on behalf of the appellant on this point. Gajanand v. Sardarmal and Anr. AIR 1991 Raj. 223 is an authority for the proposition that if a partnership firm has brought the suit in the name of partners and one of the partners died and the legal representatives have not been brought on record, the suit does not abate and remaining plaintiffs can continue the suit. This ruling discussed the provisions of Section 47 of the Partnership Act referred to above. In my opinion this ruling is of no assistance to the appellant in any manner ad racthes goes against him.
12. In Krishna Chandra Agarwalla and Ors. v. Shanti Prasad Jain , a suit for eviction was filed by certain brothers in their individual capacity. They also formed a partnership firm. One of the brothers dies during pendency of the suit and the firm was reconstituted and son of deceased brother was added. Other legal representatives of the deceased brother were not on record and reconstituted firm was not registered under Section 69(2) of the Partnership Act and in these circumstances it was held that suit by surviving and new partner could not be proceeded with in view of Section 69(2) of the Act and Order 30 Rule 1 of the Civil Procedure Code was not attracted. It does not appear that provisions of Section 47 of the Partnership Act were at all considered in this ruling. Moreover, in that case suit had not been brought by the partnership firm in the name of the partnership firm and the suit had been brought by brothers in their individual capacity jointly. Hence this ruling is also of no assistance to the appellant.
13. Now, I may refer to Commissioner of Income-tax v. Seth Govindram Sugar Mills . That was a case where a partnership consisted of two partners. In that case it was held that on death of one partner, partnership ceased to exist for purposes of taking in a new partner. It was also held that if the surviving partner had joined members of the deceased partner's family, it did not constitute a firm within meaning of Section 16(1)(b) of the Income-tax Act. In my opinion this ruling is also not applicable to the facts of the present case.
14. Reliance was also placed upon Commissioner of Income Tax Jodhpur v. Suraj Bhan Om Prakash 1985 RLW 525. That was a case regarding applicability of Section 42(c) of the Partnership Act. It was held that "if one of the two partners of a firm dies the firm on the death of one of the partners will come to an end and in such a situation the question of inducting a third person as a partner does not arise". This authority does not deal with the prcise contention roused before me.
15. Reliance was placed upon Devilal v. Himat Ram and Ors. . That was a case where the plaintiffs brought a suit for recovery of money against the defendants partners in respect of a sub-contract entered into with them. Both the courts decreed the suit in favour of the plaintiff. During the pendency of second appeal one of the respondents died and the appeal abtated against him. It was held that:
The right to prosecute appeal survived against the surviving respondents and the abatement of appeal against the deceased respondent did not result in the abatement of appeal.
To my mind this case is also not applicable to the facts of the present case. The following observations at page 41 of the judgment show that a surviving partner of a duly registered partnership firm can recover debt and liabilities of the firm by continuing the suit. The observations read:
The case may not be literally covered by Section 47 of the Indian Partnership Act, but regard being had to the principle contained therein, there should be no difficulty in holding that the serviving partners even after dissolution represent the interest of the whole partnership including that of the deceased partners so far as it may be necessary to wind up the affairs of the partnership and to complete the transactions unfinished at the time of dissolution. Looked at from this angle, I am inclined to hold that the interest of the deceased Himat Ram is sufficiently represented by the surviving partners who are on the record as respondents.
In my opinion this is a case where Section 47 of the Indian Partnership Act is directly attracted and the surviving partner was entitled to continue the suit even though the firm stood dissolved by the death of one of the two partners.
16. No other point was urged before me.
17. For the aforesaid premises, this appeal is devoid of merit and is here by dismissed with costs.