Kalyan Rai Surana, J.

Heard Mr. SK Ghosh, learned counsel appearing for the appellant. None appears on call for the respondents although notice has been duly served on them. It is submitted at the bar that the respondent No.3 in this case, had already expired.

2. This appeal under section 96 of CPC is directed against the judgment and decree dated 27.08.2004 passed by the learned Additional District Judge (Ad-hoc), Hojai at Shankardev Nagar in Money Suit No.54/2000, by which the suit was decreed only against the respondent No.5 and the suit was dismissed against the respondents No.1 to 4. By virtue of this appeal, the appellant is praying for a decree to be passed, jointly and severally, against the respondents No.1, 2 and 4 also along with decree passed against the respondent No.5 by the learned trial court.

3. The summary of facts of the case is that the appellant is a licenced money lender doing business in the name of Hindustan Mortgage Institution, Lumding and had advanced a loan of Rs. 60 Lakh to the respondent No.5, which was requested in order to undertake a contract work with the Railway. In this regard, an agreement dated 16.11.1998 between the appellant and the respondents No.1 & 5, was signed. The respondents No.1 & 5 availed the loan at the rate of 21.75% per annum and the respondents No.1 to 4 (including the deceased respondent No.3, whose name has been striked out) stood as guarantors for payment of the same. Projecting that the respondent No.1 & 5 had failed to pay the loan, an Advocates Notice dated 30.07.2000 was served, demanding repayment of the whole loan amount. After the part-payment made by cheque dated 15.09.2000 was returned dishonoured, and no payment was received, the appellant had filed a suit for recovery of a sum of Rs. 86,79,315.70 with pendent lite interest @ 21.75% and cost.

4. The respondents including the respondent No.3 (since deceased) had filed their joint written statement, denying the plea that the appellant had valid money lending licence, further stating that Deed of Agreement dated 16.11.1998 was a forged and fraudulent one and the suit was barred under section 69 of the Partnership Act, 1932. The respondents No.1 & 5 denied of taking any loan from the appellant and also stated that the respondents No.3 (since deceased) and respondent No.4 had never stood as guarantors.

5. It was projected that the appellant as well as the respondent No.5 were engaged in same partnership business and their Partnership Firm having not been registered, the suit was barred. It was further alleged that during the tenure of the partnership business, the respondent No.5 had signed many papers, cheques and blank papers etc., and the loss suffered in the partnership business was put upon on the shoulder of the respondent No.5. It was stated that by concealing the existence of their partnership, the suit was filed by practicing fraud.

6. On the basis of the pleadings, following 5 issues and 1 additional issue were framed for trial:

1. Whether there is any cause of action for the suit?

2. Whether the plaintiff has got valid and effective Money Lending business?

3. Whether the Deed of Agreement dated 16/11/98 is forged and fraudulent one?

4. Whether the plaintiff is entitled to get a decree as prayed for?

5. What relief or reliefs are the parties entitled to?

Additional issue:-

1. Whether the suit is barred by section 69 of the Indian Partnership Act?

7. In support of the plaint, the appellant examined two witnesses including her husband Sri Parimal Acharjee as PW.1, who was stated to be looking after the business by virtue of a power of attorney dated 19.12.1986. One Ari Arup Chowdhury was examined as PW.2.

8. In respect of additional issue No.1, the learned trial court recorded that the respondent No.5 herein (i.e. defendant No.1) did not turn up to adduce any evidence with regard to her averments. It was held that case was not instituted by the appellant as a partner or against any partnership firm or any p