Gauhati High Court
Mustt Humera Begum Borbhuiya vs M/S Modern Supply Agency & Ors on 1 February, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
RFA No. 85/2002
Musstt. Humera Begum Borbhuiya ......Appellant
VERSUS
M/s Modern Supply Agency & Ors. ......Respondents
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. B. Banerjee, Sr. Advocate For the Respondent : Mr. S.C. Kayal, Advocate Mr. A. Parvez, Advocate Date of Hearing : 03-12-2015 Date of Judgment : 01-02-2016 Judgment and Order (CAV) Heard Mr. B. Banerjee, learned Sr. counsel appearing on behalf of the appellant. Also heard Mr. S.C. Keyal, learned counsel representing the respondent No. 1, 2, 6(a) to 6(f), 15, 16 and 17 as well as Mr. A. Parvez, learned counsel representing respondent No. 18, 19 and 20. This regular first appeal has been preferred against the judgment and decree dated 23-04-2002 passed by the learned Civil Judge (Sr. Div.), Hailakandi in Title Suit No. 32/2000 dismissing the suit filed by the appellant/ plaintiff. The appeal has been preferred on the following grounds:
(i) For that the learned Court below erred in law and in fact by dismissing the Title Suit No. 30 of 2000 vide judgment dated 23.4.2002.
(ii) For that the learned court below did not take into consideration the very relevant piece of evidence of the P.W. 2 who had very clearly deposed that although his name appears in another partnership deed (i.e. Deed No. 109) where he had never put his signature and he did not go to RFA No. 85/2002 Page 1 of 20 the Sub-Register Office at the time of registration of that deed and which was made subsequent to the partnership deed No. 145 (Ext. 5) made by him along with plaintiff, the defendant/ respondent No. 2 and 4 other persons and dismissed the suit rendering the judgment dated 23.4.2002 illegal and perverse and as such the same is liable to be set aside and quashed.
(iii) For that the learned Court below has committed great illegality by not declaring the partnership deed No. 68 of 1993, 109 of 1993 and 62 of 1994 as fraudulent and void as the same were prepared in total violation of the Partnership Deed No. 145 dated 25.12.1988 (Ext. 5)
(iv) For that the learned Court below erred in law and in fact by not discarding the resignation letter dated 3.4.1994 retired on by the defendants showing the same has been issued by the plaintiff/ appellant inspite of the fact that she had never issued such letter and which suffers from various infirmities, illegalities and which the respondent could not prove properly before the learned court below as has been issued in terms of the partnership deed No. 145 (Ext. 5).
(v) For that the learned court below should have discarded the partnership deed No. 68 of 1993, 109 of 1993 and 62 of 1994 being fraudulent and void as the defendant side failed to prove the same with reliable cogent evidence.
(vi) For that the judgment dated 23.4.2002 suffers from various illegalities and infirmities as the learned court below failed to take into consideration the relevant fact that the so called resignation letter dated 3.4.1994 and its acknowledgment were prepared by the defendants in collusion with the defendant No. 2 who is the brother-in-law of the appellant and the defendant No. 3 who used to run the business of the defendant No. 1 firm and in whose assurance the appellant put signatures on blank papers on good faith to be used for bonafide purpose.
(vii) For that the learned court below erred in law by misconstruing and misleading the Section 31 and 32 of the Partnership Act while passing the judgment dated 23.4.2002.
(viii) For that the learned court below acted illegally by dismissing the instant suit by not taking into consideration the relevant fact that the plaintiff/ appellant had never signed in any subsequent deed after the first deed i.e. (Ext. 5) Deed No. 145 dated 25.12.1988 was signed and those subsequent deeds were never proved properly including signature of the plaintiff before the learned court below by the defendants.
(ix) For that the learned court below has acted illegally by not taking into consideration the evidences of the plaintiff and her witnesses and wrongly decided the relevant issues. Especially issue No. 6, 7, 8, 9 and 12 against the plaintiff.
(x) For that the learned court below erred in law by giving too much emphasis on the various exhibits of the defendants which were not RFA No. 85/2002 Page 2 of 20 proved as per law as well as the evidences of the defendants' side which were not supported by any cogent and reliable documents and dismissed the suit illegally.
(xi) For that at rate the judgment and decree dated 23.4.2002 being illegal, erroneous and perverse is liable to be set aside and quashed.
2. The brief fact of the plaintiff's case, shorn of unnecessary details, is that the plaintiff together with the defendant No. 3 to 7 as well as the predecessor-in- interest of the defendant No. 8(a) to 8(d) viz. Meherban Bibi had started a partnership business in the name and style of M/s Modern Supply Agency, i.e. the defendant No. 1 in the suit. For the purpose of carrying on with the aforesaid partnership business, a registered partnership deed bearing No. 145 dated 26- 12-1988 was also executed by the aforesaid partners whereby, the plaintiff had made contribution of an initial capital of Rs. 10,000/-. For the purpose of running the partnership business, a bank account was opened with the defendant No. 20 in the name of the partnership firm whereby, the authority to operate the bank account was jointly vested upon the plaintiff and the defendant No. 3. The plaintiff has alleged that for the period from 31-03-1989 till 31-03- 1995, no proper accounting of the business of the partnership firm was carried out. It has been further alleged that as per the partnership deed dated 26-12- 1988 retirement of partners was permissible and as such new partners could have been inducted with the consent of the existing partners. However, the defendant No. 3 acting in collusion with the defendant No. 2 had fraudulently manufactured partnership deed bearing No. 68 dated 09-07-1993 and thereafter, another partnership deed No. 109 dated 18-10-1993 thereby reconstituting the partnership firm with the defendant No. 2, 3, 6, 7, 13 and 14 as partners by misleading the plaintiff. The plaintiff has further alleged that her signature was RFA No. 85/2002 Page 3 of 20 obtained in the aforesaid partnership deeds by the defendant No. 2 by practicing fraud upon the plaintiff, with the sole malafide intent of taking over control of the defendant No 1 firm including monopoly right to operate the bank account standing in the name of the firm. The plaintiff has further averred that on 01-07- 1994 the defendant No. 2 had manufactured another partnership deed bearing No. 62/1994 once again reconstituting the partnership firm with the defendant Nos 2, 6, 15, 16 and 17 without the knowledge or consent of the plaintiff. The plaintiff has claimed that she had pledged her three fix deposits for an amount of Rs. 1,20,000/-, Rs, 3,25,000/- and Rs. 75,000/- totaling to Rs. 5,20,000/- in favour of the United Bank of India, Badarpur Branch (respondent No. 20) as collateral security against the loan advanced by the said bank in favour of the defendant No. 1 firm. The plaintiff had further stated that acting on her request, her husband Md. Moinul Haque Barbhuiya had also pledged four numbers of fixed deposits amounting to Rs. 3,00,000/- with the respondent No. 20. An irrevocable Power of Attorney dated 04-05-1991 was also executed by the plaintiff as well as the partners of registered deed of partnership No. 145 in favour of the Manager, United Bank of India, Badarpur Branch, thereby authorizing the bank to make collection of the amount payable to the defendant No. 1 firm from the Hindustan Paper Corporation (HPC) against the bills submitted by the firm for making necessary recovery of the loan amount.
3. The further case of the plaintiff is that by misleading her and in absence of her husband, the defendant No. 2 and 3 had manufactured the partnership deeds as well as irrevocable power of attorney executed by the defendant No. 2, 3, 6, 7, 13 and 17 on 10-01-1994 and thereafter, got the same registered before the Sub-Registrar, Hailakandi. She has also stated that since the month of May, RFA No. 85/2002 Page 4 of 20 1994, when the defendant No. 2 and 3 started avoiding the plaintiff in respect of her enquiries pertaining to the partnership business, the plaintiff had become suspicious and based on relevant enquires made by her could come to know about the manufactured partnership deeds. When the plaintiff found that there was no proper account of the firm and the defendant No. 2 and 3 were making preparation to take over control of the partnership business on the basis of the fraudulent partnership deeds as mentioned above, she wrote a letter to the respondent No. 20 bank, on the basis of which the bank had stopped operation of the account standing in the name of the partnership firm. The bank had also issued letter dated 12-11-1994 proposing to liquidate the collateral securities lying in deposit with the bank for the purpose of adjusting the outstanding loan amount.
4. Being aggrieved with such proposal made by the bank, the plaintiff had approached the court of the learned Civil Judge (Sr. Div.), Hailakandi by filing the Title Suit, inter- alia praying for a decree for dissolution of the partnership firm, namely, defendant No. 1 and for rendition of accounts; for declaration that the act of liquidating the collateral security of the plaintiff and her husband by the defendant No. 18, 19 and 20 was fraudulent, malafide and arbitrary action in the eye of law; for a decree of temporary and permanent injunction and for other consequential reliefs.
5. On receipt of the summons the defendant No. 1, 2, 6 (since deceased), 15, 16 and 17 appeared in the case and filed their joint written statement. The defendant No. 3 and 5 also appeared but did not file any written statement. RFA No. 85/2002 Page 5 of 20 Instead the said defendants had adopted the written statement filed by the defendant No. 1, 2, 6, 15, 16 and 17.
6. Besides questioning the maintainability of the suit by raising several formal grounds, the contesting defendants have also denied the case of the plaintiff. Alleging that the plaintiffs suit was a frivolous one based on palpable distortion of facts, the contesting defendants have traversed the pleading made in the plaint by furnishing elaborate pleadings in their written statement.
7. The stand of the contesting defendants, in short, is that clause- 11 of the partnership deed No. 145 permits retirement of partners from the partnership business by issuing notice in writing. Accordingly, three of the original partners, namely, Abdul Latif Laskar, Meherban Bibi and Ataur Rahman Laskar had resigned from the partnership consequent whereupon, three new partners, i.e. the defendant Nos. 2, 13 and 14 were inducted into the partnership business by executing the registered deed of partnership bearing No. 109 of 1993. The defendants have stated that the partnership firm was awarded a major contract of bamboo supply by the Hindustan Paper Corporation (HPC), Panchagram. The bank account of the firm was originally opened with the Central Bank of India and thereafter, with the State Bank of India, Badarpur Branch and subsequently the same was opened with the United Bank of India, Badarpur Branch, i.e. the defendant No. 20. In order to execute the large scale bamboo supply work awarded in favour of the partnership firm, the defendant No. 1 was in requirement of bank finance so as to execute the bamboo supply work. Accordingly, on the basis of a request made by the defendant No. 1 firm, the defendant No. 20 had advanced a cash-credit loan amount with the initial limit of RFA No. 85/2002 Page 6 of 20 Rs. 9 lakhs which was subsequently raised to the limit of Rs. 22.5 lakhs. So as to secure the aforesaid loan advanced by the defendant No. 20, various documents had been executed by the partners of the firm including the plaintiff and a registered deed of irrevocable power of attorney bearing No. 3 dated 10-01-1994 was also executed by the partners of the firm re-constituted under the deed No. 109 of 1993, thereby authorizing the Manager of the bank to receive payment for and on behalf of the defendant No. 1 firm from the HPC authorities so as to off- set the outstanding dues against the aforesaid loan account.
8. The contesting defendants have further stated that since the plaintiff had the authority to operate the bank account of the firm as per the terms and condition of the deed No. 145 of 1988, taking advantage of the said position, during the relevant period of time the plaintiff had withdrawn substantial amount of money from the bank account standing in the name of the firm and thereafter, converted such amount into fixed deposits in her name as well as in the name of her husband. The aforesaid fixed deposits procured with the funds obtained from the partnership account were thereafter pledged a security deposit against the loan account mentioned above. The contesting defendants have further alleged that the plaintiff and her husband, who is the elder brother of the defendant No. 2, at all material times had a secret motive of grabbing the entire business of the partnership firm and with that end in view they had started raising several disputes regarding the partnership business since the early part of the year 1994 which had led to holding of a meeting amongst the friends and family members in a 'bichara'. In one of the said meetings held on 26-03-1994 at the house of the father-in-law of the plaintiff followed by another meeting held on 03-04-1994 at the office of the Union Food Industries, i.e. the partnership firm of the RFA No. 85/2002 Page 7 of 20 defendant No. 2 and his elder brother, who is the husband of the plaintiff, it was unanimously decided that the fixed deposits standing in the name of the plaintiff, her husband and the defendant No. 2 and 3, which were kept as security against loan were purchased from the fund of the firm and same would be adjusted with the loan amount of the defendant No. 1 with the bank. It was also mutually agreed in the aforesaid meeting that the plaintiff would retire from the partnership business on receipt of all her dues and accordingly, on that very day her dues were paid to the plaintiff, which fact was also acknowledged by her in writing. The aforesaid agreement between the parties was reduced in writing in the form of 'swarnalipi' and signed by the husband of the plaintiff and the defendant No. 2 in presence of other elders and relations of the parties. In terms of the said agreement, the plaintiff by issuing notice in writing had resigned from the partnership business of defendant No. 1 firm on 03-04-1994 by acknowledging the fact that the money involved in the fixed deposits pledged with the United Bank of India, Badarpur Branch belongs to the defendant No. 1 firm and the plaintiff had also communicated her "no-objection" consenting to the said amount being adjusted with the loan liabilities of the defendant No. 1 firm.
9. The defendants have further alleged that after the resignation of the plaintiff from the partnership business on 03-04-1994, the defendant No. 2, 3, 6, 7, 13 and 14 continued to operate the partnership business. Later on, the defendant No. 3, 7, 13 and 14 submitted their resignation on 16-04-1994 as a result of which, the aforesaid partnership firm had to be again reconstituted by inducting new partners in the form of the defendant Nos. 15, 16 and 17 in their place by executing the registered partnership deed No. 62 dated 01-07-1994. RFA No. 85/2002 Page 8 of 20
10. The contesting defendants have further stated that on account of the false complaints made by the plaintiff, the bank had initially stopped operation of the accounts and thereafter, taking cognizance of the dispute arising amongst the partners, had issued a notice upon the firm demanding repayment of the entire amount lying due and outstanding in respect of the loan amount. Eventually, the bank had adjusted the fixed deposits which were pledged as security against the loan account by the plaintiff and her husband as well as the defendant No. 2 and 3. After adjustment of the outstanding loan amount against the partnership firm's account, the bank had issued notice to the defendant No. 2 and his brother, i.e. the husband of the plaintiff to liquidate the loan remaining outstanding in the name of the M/s Union Food Industries. On receipt of the said notice the husband of the plaintiff had filed Title Suit No. 35/1997 with a prayer for issuance of an order of injunction. Earlier the plaintiff had also filed Title Suit No. 30/1994 in the court of the learned District Judge, Hailakandi along with a Misc. Case No. 52/1994 making a prayer for temporary injunction. When the aforesaid misc. case was dismissed by the court, the plaintiff had withdrawn the Title Suit No. 30/1994 with a liberty to file afresh and had subsequently instituted the aforementioned title suit.
11. The defendants have also stated that the husband of the plaintiff through his second wife, namely, Anawara Begum Barbhuiya had filed Title Suit No. 70/1995 (renumbered as Title Suit No. 05/1999) in the court of the learned Civil Judge (Sr. Div.), Hailakandi along with an injunction petition registered as Misc. Case No. 16/1995 with a prayer to restrain the opposite parties from obtaining payment due to the defendant No. 1 firm from the HPC. When the injunction was declined by the court below, the husband of the plaintiff through his nephew RFA No. 85/2002 Page 9 of 20 Yakub Ali Laskar had filed another Title Suit NO. 35/1994 (renumbered as Title Suit No. 04/1999) along with an application praying for temporary injunction numbered and registered as Misc. Case No. 89/1995 with similar prayers for passing an order of injunction against the HPC. Both the aforementioned title suits were ultimately dismissed by the court. Drawing a parallel to the pleadings contained in the plaints filed in Title Suit No. 30/1994 with those made in the plaint filed in the present suit with a view to expose the falsity of the plaintiffs claim, the defendants have pleaded that the suit filed by the plaintiff is completely frivolous and as such liable to be dismissed with compensatory cost under Section 35A of the CPC.
12. The defendant No. 18, 19 and 20 (bank) had also filed their written statement questioning the existence of any cause of action for the plaintiff to institute the present suit. In paragraphs 7, 8 and 9 of the written statement, the said defendants have explained the facts and circumstances under which the fixed deposits had to be liquidated for recovery of the outstanding amount in connection with the loan account standing in the name of the defendant No. 1 firm as well as the outstanding dues pertaining to the loan account standing in the name of the M/s Union Food Industries, a partnership firm operated by the husband of the plaintiff and the defendant No. 2.
13. Based on the pleadings of the parties the learned Trial Court had framed the following issues:
(1) Is there any cause of action?
(2) Is the suit maintainable and barred under Indian Partnership Act? (3) Is the suit time barred?
(4) Is the suit barred by waiver, estoppels and acquiescence?RFA No. 85/2002 Page 10 of 20
(5) Does the suit suffer from defunct of parties? (6) Are the partnership deed No. 68 of 1993, 109 of 1993, 62 of 1994 and power of attorney No. 20 dtd 10.1.94 Registered in Hailakandi Sub Registrar's office and the registration letter dtd 3/4/94 fraudulent, void and liable to be cancelled?
(7) Did defendants No. 3, 7, 13 and 14 resign from the partnership business of M/s Modern Supply Agency?
(8) Had fixed deposits in the name of the plaintiff been purchased out of money of M/s Modern Supply Agency?
(9) Do the pleadings of suit No. 30 of 1994 contradict the plaint of the suit?
(10) Is the suit undervalued?
(11) To what relief, if any, is the plaintiff entitled? Addl. Issue (12) Whether action of defendants No. 18, 19 and 20 were malafide?
14. During the course of trial the plaintiff side had examined four witnesses and produced documentary evidence. The defendant side had also examined four witnesses besides exhibiting certain documents. After a threadbare discussion of the evidence available on record and upon hearing the learned counsel for the parties, the learned Trial Court had dismissed the suit filed by the plaintiff by the judgment and decree dated 23-04-2002.
15. Being aggrieved by the aforesaid judgment and decree dated 23-04-2002 passed by the Trial Court, the plaintiff as appellant has approached this Court by filing the instant appeal.
16. Mr. B. Banerjee, learned Sr. counsel appearing for the appellant submits that the learned Trial Court had failed to consider the evidence led by the plaintiff in support of her case to show that the registered deeds of partnership executed subsequent to the execution of the partnership deed bearing No. 145 dated 26- RFA No. 85/2002 Page 11 of 20 12-1988 were all fraudulent documents without having sanction of the law. Since the plaintiff had pleaded and thereafter, established her case by leading cogent evidence to show that the said documents were fraudulent, the learned Trial Court committed manifest illegality in deciding the issue No. 6, 7 and 8 against the plaintiff and in favour of the defendants.
17. Mr. Banerjee, further submits that even assuming for the sake of argument that the fixed deposits pledged by the plaintiff and her husband were liable to be liquidated for recovery of the dues standing against the loan account of the defendant No. 1 firm yet, the defendant No. 20 having already recovered the entire outstanding amount from the HPC, which was sufficient to off-set the loan of the defendant No. 1, the fixed deposits pledged by the plaintiff and her husband could not have been liquidated by the bank so as to square up the loan account standing in the name of M/s Union Food Industries. The learned Sr. counsel submits that the Trial Court has committed grave illegality in deciding the issue No. 12 against the plaintiff by ignoring the materials available on record. To such extent, submits Mr Banerjee, the findings recorded by the court below as regards issue No. 12 is perverse in the eye of law and hence, liable to be set aside by this Court.
18. Assailing the decision of the trial court pertaining to issue No. 5 holding the suit being bad on account of defect of parties, Mr. Banerjee has placed reliance upon Section 120 of the Indian Evidence Act, 1872 to argue that the plaintiff being the wife was competent to maintain a suit espousing the cause of her husband even though he was not a party to the proceeding. As such, the findings recorded by the court below as regards issue No. 5, according to the RFA No. 85/2002 Page 12 of 20 learned Senior Counsel, is not sustainable in the eye of law and liable to be reversed by this Court.
19. Per contra, Mr. S.C. Kayal, learned counsel for respondent No. 1, 2, 6, 15, 16 and 17 submits that the case of the plaintiff besides being wholly contradictory to her stand taken in the previous suit is also based on suppression of material facts and hence, liable to be dismissed on account of same being a completely frivolous and vexatious suit. By referring to the materials available on record and more particularly, Exhibit-H, Mr. Keyal submits that the plaintiff had resigned from the partnership w.e.f. 03-04-1994 after receiving all her dues and as such she does not have any locus standi to maintain the instant suit against the defendant No. 1 firm or its partners nor is there any cause of action for filing the suit.
20. Coming to the question of recovery of the outstanding dues in respect of the loan account standing in the name of the partnership firm by the respondent No. 20 bank, Mr. Keyal submits that the recourse taken by the bank is wholly justified in the facts and circumstances of the case. It is a fact that due to the ongoing dispute between the partners, there were unnecessary impediments created in the process of recovery of dues by the bank based on the irrevocable power of attorney. As such, the respondent No. 20 bank had no option but to liquidate the fixed deposits pledged as security against the loan account and after adjusting the amount found to be due and payable by the defendant No. 1 firm, the defendant No. 20 bank had also liquidated the balance part of the fix deposits against the outstanding loan standing in the name of M/s Union Food Industries by en-cashing the fixed deposit pledged by the husband of the plaintiff and the defendant No 2. Mr. Keyal further submits that in the aforesaid manner RFA No. 85/2002 Page 13 of 20 the security pledged by the defendant No. 2 has also been liquidated to which the defendant No. 2 has not raised any objection before the bank. The learned Counsel, therefore, submits that even on such count the suit filed by the plaintiff is not maintainable in the eye of law and hence, has been rightly dismissed by the learned court below.
21. By referring to the pleadings contained in paragraph 7, 8 and 9 of the written statement filed by the bank, Mr. Parvez, learned counsel appearing for the respondent No. 18, 19 and 20 submits that the bank is entitled to recover the outstanding dues in respect of the loan availed by the defendant No. 1 firm. By following the prescribed norms, the respondent No. 20 bank has liquidated the fixed deposits against the outstanding dues having become aware of the dispute arising between the partners of the firm leading to multiplicity of litigations. Mr. Parvez further submits that such step had to be taken by the bank so as to protect its interest and the public money involved in the loan transaction. As such, submits Mr. Parvez, there is no illegality or infirmity in the decision rendered by the learned court below in respect of issue No. 12 deciding the same against the plaintiff.
22. I have heard the submissions made by and on behalf of the parties and have also perused the materials available on record. The key controversy involved in the present appeal apparently revolves around the answers to the questions as to whether the appellant/ plaintiff had any subsisting right in the business of the partnership firm pursuant to her resignation on 03-04-1994 and whether the bank had acted illegally in liquidating the fixed deposits pledged by the plaintiff, her husband and the defendant No. 2 and 3 in their capacity as RFA No. 85/2002 Page 14 of 20 partners of the firm. I propose to answer the said questions by framing the following points of determination.
I. In view of the resignation submitted by the plaintiff on 03-04-1994 retiring from the partnership business, whether the learned Trial Court was justified in law in deciding issue No. 6, 7, 8 and 11 against the plaintiff and in favour of the defendants?
23. From a perusal of the judgment and decree under appeal it is apparent that the plaintiff had challenged the three registered deeds of partnership, i.e. deed Nos. 109 of 1993, 68 of 1993 and 62 of 1994 alleging that the said deeds had been executed fraudulently by obtaining the signature of the plaintiff by the defendant No. 2 and 3 on a misrepresentation of facts. However, from the materials available on record it can be seen that the plaintiff has completely failed to prove and establish the said allegation by leading cogent evidence on record. The learned Trial Court has recorded a finding while discussing the issue No. 6 that the plaintiff has failed to prove the partnership deed No. 68 of 1993, 62 of 1994. The learned Trial Court has also observed that although the plaintiff has prayed for cancellation of all the deeds executed subsequent to the deed No. 145 yet, save and except the document marked Exhibit-B and E no other document had been field or proved by the plaintiff. As such, the learned court below had held that the plaintiff had failed to make out a case for cancellation of the said documents.
24. That apart, during the cross-examination the plaintiff had admitted the execution of the two documents, namely, Exhibit- B and E whereas the Plaintiff's witness had also admitted execution of the power of attorney dated 10-04-1999 Exhibit-C and proved the signature and Exhibit- C(iii) and C(iv). A perusal of RFA No. 85/2002 Page 15 of 20 Exhibit-C goes to show that the same was jointly executed by all the partners reconstituted by partnership deed dated 18-10-1993 including the plaintiff.
25. By referring to the bulk of documentary evidence in the form of Exhibit-1, Exhibit-J, Exhibit-U, Exhibit-R as well as Exhibit-S, the learned Trial Court had come to a categorical conclusion that the plaintiff had acted upon the deed No. 109 dated 18-10-1993 along with other partners of the said deed and as such it cannot be said that the said partnership deed was a fraudulent one.
26. Further, by taking cognizance of the document Exhibit-H, which is the resignation letter dated 30-04-1994 by means of which the plaintiff had retired from the partnership business after acknowledging the receipt of all her receivable dues, the learned Trial Court held categorically held that the plaintiff having resigned from the partnership business could not have maintain her plea that the fixed deposits lying with the United Bank of India still belongs to her. That apart, the learned Trial Court had also observed that the plea of the plaintiff that her signature was taken in a blank paper by the defendant No. 2 was also incorrect because in Exhibit-H the plaintiff had put her signature upon the revenue stamp and she herself has proved her signature as Exhibit-H(i). On the basis of such material evidence available on record, the learned court below had held that the resignation letter dated 03-04-1994 was not fraudulent as alleged by the plaintiff and hence, the same was not liable to be cancelled.
27. Exhibit-H which is the resignation letter dated 03-04-1994 is the most vital piece of evidence which goes to nullify the entire claim of the plaintiff made in the plaint. Exhibit -H not only mentions in unequivocal terms that the plaintiff had resigned from the partnership after receiving all her dues but also mentioned that the amount involved in the three fixed deposits pledged with the United RFA No. 85/2002 Page 16 of 20 bank of India belongs to the Defendants No. 1 Firm. The said document in fact lays down the particulars of the three fixed deposits in specific terms. Moreover, the signature of the plaintiff appears in the Power of Attorney dated 10-01-1994. It is also admitted that the plaintiff has signed all the partnership deeds which she had challenged in the suit. In the teeth of Exhibits-H and C, it was incumbent upon the plaintiff to establish her case by producing cogent evidence on record which duty she has failed to discharge.
28. Coming to the question of power of attorney dated 10-01-1994, in the cross-examination the plaintiff i.e. the PW-1 had admitted her signature on the said deed executed by her along with defendant No. 2 and other partners in favour of the bank. Such being the position, there was no question of holding the power of attorney as fraudulent in the eye of law, since the plaintiff had herself signed the said document. There is nothing on record to suggest that the signature of the plaintiff on the aforesaid documents were obtained in a fraudulent manner by practicing fraud and misrepresentation upon the plaintiff.
29. Having approached the civil court seeking a decree declaring the partnership deeds executed subsequent to 26-12-1988 were obtained by fraud and mis-representation, a heavy burden was cast upon the plaintiff to prove and establish her case by leading cogent evidence. However, from a scrutiny of the evidence on record it is evident that the plaintiff has failed to prove and establish her case by discharging the burden cast under Section 101 of the Evidence Act. Such being the position, I am of the considered opinion that the learned Trial Court had rightly decided the issue No. 6, 7, 8 and 9 against the plaintiff and in favour of the defendants. There is no infirmity in the findings recorded by the court below on the aforesaid issues warranting interference by this Court. RFA No. 85/2002 Page 17 of 20
II. Whether the court below was justified in deciding the issue No. 5 and the additional issue No. 12 against the plaintiff and in favour of the defendants?
30. A perusal of the pleadings contained in paragraph 7, 8 and 9 of the written statement filed by the defendant Nos. 18, 19 and 20 would unequivocally go to show that the said defendants had acted bonafide and in accordance with the provisions of law in liquidating the pledged fixed deposits for realization of the outstanding dues of the bank against the loan amount standing in the name of the defendant No. 1 firm. There is no dispute about the fact that the plaintiff has pledged the fix deposits amounting to Rs. 5,20,000/- in total and a further amount of Rs. 3,00,000/- in the form of fixed deposits were pledged by her husband with the defendant No. 20 bank. That apart, there is also no dispute about the fact that the irrevocable power of attorney dated 04-05-1995 (Exhibit-
4) was executed by the partners of the firm including plaintiff in favour of the Manager, United Bank of India, Badarpur Branch,. The operation of the bank account had also been admittedly suspended based on a letter written by the plaintiff herself to the bank. Sensing the brewing dispute between the partners of the firm, the bank had issued a letter calling upon the defendant No. 1 to repay the outstanding due of Rs. 13,35,580/- within 15 days, failing which maturity value of the fix deposits shall be adjusted against the loan amount.
31. A perusal of the Exhibit-H would go to show that the plaintiff had accepted that she could not maintain any claim in respect of the fixed deposits kept in the United Bank of India, Badarpur Branch as security against the loan account standing in the name of the defendant No. 1 firm. It is also the admitted RFA No. 85/2002 Page 18 of 20 position, as apparent from Exhibit-H, that the amount involved in the fixed deposits belonged to the defendant No. 1 firm and the same would be refunded to the firm by the plaintiff and/ or adjusted with the loan of the firm with the United Bank of India. Since the partners of the defendant No. 1 firm had admittedly failed to repay the loan amount standing in the name of the firm, hence, the respondent No. 20 bank was entitled under the law to make adjustments in the fixed deposits pledged by the plaintiff to recover the outstanding dues in the attending facts and circumstances of the case.
32. As regards the balance amount adjusted by the respondent No. 20 bank against the outstanding dues standing in the loan account of M/s Union Food Industries, the plaintiff cannot be allowed to question the said transaction in the instant proceeding since she did not have any cause of action to seek any relief in that regard in the present suit. The plaintiff cannot espouse the cause of her husband in the garb of the present suit, that too without even impleading her husband as a party to the proceeding. Section 120 of the Evidence Act relates to competence of the spouses to be a witness in a civil proceeding and would have no application in the facts of the present case. As such, the submission made by the Learned Senior Counsel for the appellant on the above count does not merit acceptance by this court. As a matter of fact, the plaintiff having resigned from the partnership firm by virtue of the resignation letter dated 03-04-1994 (Exhibit- H) relinquishing all her claim in the in the partnership account, she would clearly be estopped from staking any claim as regards the fixed deposits or pertaining to any of the transactions connected with the affairs of the defendant No 1 firm. The Plaintiff, therefore, did not have the locus standi to claim any of the reliefs in the suit either as a partner of the firm or in her individual capacity. RFA No. 85/2002 Page 19 of 20
33. In view of the discussions made hereinbefore, I am of the considered opinion that the learned Trial Court has rightly decided the issue No. 5 as well as additional issue No. 12 against the plaintiff and in favour of the defendants. I concur with the findings and conclusions recorded by the learned Trial Court in all the issues and hence, do not find any justifiable ground to interfere with the findings and conclusions recorded by the court below.
In the result, it is held that the appeal is devoid of any merit and hence, same is hereby dismissed.
Office to send back the record.
No order as to cost.
JUDGE GS RFA No. 85/2002 Page 20 of 20