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2005 Supreme(AP) 769
Andhra Pradesh High Court
Nichenametla Subramanyam - Appellant
Versus
G.Ananda Rao - Respondent
Decided On : 08-22-05
Headnote:
Indian Partnership Act – Section 22 – Learned counsel representing appellant- defendant No. 2, would contend that D. W. 1 had clearly deposed that though partnership had been there, partnership, in fact, had not commenced business and even otherwise, in light of specific stand taken by defendant No. 2 in suit and also in light of Section 22 of Indian Partnership Act, appellant-defendant No. 2 cannot be fastened with liability on strength of Ex. A. 1 – Learned counsel had taken this Court through pleadings of parties and also findings recorded in this regard – Held, It is pertinent to note that recitals of Ex. A. 1 are clear and categorical – There is an admission made by D. W. 1 that defendant No. 1 was Managing Partner of firm at relevant point of time – Fact that firm came into existence is not in serious dispute, and D. W. 1 had not taken steps to examine defendant No. 1 – Be that as it may, fact remains that partnership firm came into existence and these are brothers and incidentally partners of firm and in light of admission made by D. W. 1- defendant No. 2 that defendant No. 1 was Managing Partner of firm at relevant point of time, it can be taken, in light of clear recitals of Ex. A. 1, that he had executed Ex. A. 1 on behalf of firm representing yet another partner too – Appeal is Dismissed
( 2 ) SHRI P. Veera Reddy, the learned counsel representing the appellant- defendant No. 2, would contend that D. W. 1 had clearly deposed that though the partnership had been there, the partnership, in fact, had not commenced the business and even otherwise, in the light of the specific stand taken by the defendant No. 2 in the suit (D. W. 1) and also in the light of Section 22 of the indian Partnership Act, the appellant-defendant No. 2 cannot be fastened with the liability on the strength of Ex. A. 1. The learned counsel had taken this Court through the pleadings of the parties and also the findings recorded in this regard.
( 3 ) HEARD the learned counsel.
( 4 ) NONE represents the respondents.
( 5 ) THE suit is filed for recovery of Rs. 30. 740/- as against both the defendants on the strength of a promissory note dated 29. 11. 1980 executed by the defendant No. 1 as partner of M/s. Nichanametla Kumaraswamy Subramanyam for rs. 20,000/- payable with interest at 18% per annum and claimed at the same rate of interest with costs of the suit. It was stated in the plaint as hereunder:-" The defendants are partners in M/s. Nichenametla Kumara Swamy subramanyam a registered firm carrying on cotton business at Proddatur and other places. Defendant No. 1 as a partner of the above firm borrowed on 29. 11. 80 a sum of Rs. 20,000/- for firm s business and agreed to repay the same with interest at 18% p. a. and executed a promissory note on behalf of the firm in his hand at Cuddapah in favour of the plaintiff. Thus as partners of the firm the defendants 1 and 2 are liable to pay the above pronote amount. On 26. 11. 1981 the first defendant paid a sum of Rs. 3680/- towards interest to the plaintiff and endorsed the payment in his own hand on the same day as partner of the firm on the reverse of the pronote. Again on 15. 11. 1982 first defendant paid rs. 3600/- towards interest to the plaintiff and endorsed the same in his own hand as a partner of the firm on the reverse of the pronote. Again on 28. 11. 1983 the first defendant paid Rs. 3840/- towards interest and Rs. 5000/- towards Principal amount to the plaintiff and endorsed the same in his own hand on the third page of the pronote as a partner of the firm. As on 28. 11. 1983 the balance due on the pronote was Rs. 15000/ -. Again on 12. 11. 1986 the defendant paid a sum of Rs. 200/- to the plaintiff and endorsed the same on the third page of the pronote as a partner of the firm. The payments made by the first defendant as a partner of the firm binds the second defendant also as he is a partner of the firm. The defendants are due Rs. 15000/- towards of the firm. The defendants are due Rs. 15000/- towards Principal from 28. 11. 83 being the balance of Principal amount after deducting Rs. 5000/- towards principal which was acknowledged by the first defendant on the third page of the pronote. This acknowledgment for the balance of the pronote amount by the first defendant binds the second defendant also as partner of the firm. Plaintiff made several demands for the payment of Rs. 15000/- with interest. The defendants failed to pay the same. So on 21. 10. 88 the plaintiff issued a notice demanding the defendants to pay the balance of Rs. 15000/- with interest. First D. 1 received the notice but failed to pay the amount with interest and also failed to give reply. D. 2 s notice was returned as the addressee is not in town. This endorsement made by the post man is in collusion with the second defendant who evaded to take the notice. The plaintiff again issued an advocate s notice on 6. 11. 89 demanding the defendants to pay the balance of pronote amount of rs. 15000/- with interest. But the defendants neither paid the amount nor gave any reply. "
( 6 ) THE defendant No. 1 had not contested the suit. Appellant herein- defendant No. 2 filed Written Statement admitting that he is a partner of the firm, but,
