IMPORTANT POINTS
• The non-examination of the plaintiff who alone had the personal knowledge, before the court is definitely a defect on the side of the plaintiff to prove his case. The law is well settled that in matters requiring personal knowledge, evidence cannot be adduced through a power of attorney
• The failure to produce the returns submitted before the Sales Tax Office alone is not sufficient to conclude that the account books were not properly maintained by the defendants in the ordinary course of business. The court below is not justified in rejecting Ext. B1 series without considering Ext B2 day book regularly kept in the ordinary course of business corroborated by the oral testimonies of the other partners who retired along with the plaintiff.

1. This appeal is preferred by the defendants against the judgment and decree dated 22.08.2011 of the Sub Court, Pala in O.S No. 89/2010.

2. Briefly the facts are as follows:

The plaintiff, the second defendant and three others namely James Joseph, Babu T.V and Girish Babu had entered into a partnership business by executing a deed on 5.6.2003 and the business was started by name and style M/s. Fantasy Collection for conducting business of crockeries, toys, presentation items etc. Subsequently, the plaintiff, James Joseph, Babu T.V and Girish Babu expressed their desire to retire from the partnership and the defendants 2 and 3 namely Jose George and Binu George expressed their desire to join as continuing partners. So a reconstituted partnership deed was executed on 1.6.2009 incorporating the terms of agreement of retirement and incorporation of partners and registered the deed before Registrar of firms. All the retiring partners and incoming partners verified the books of accounts of the firm and fixed that the plaintiff was entitled to get Rs. 2,28,184.06/- as share of capital, balance in current account and share of profit along with the other retiring partners. The time for payment of the amount was 6 months from the reconstituted partnership on 1.6.2009. The plaintiff waited till 1.12.2009 but the defendants, the existing partners of the first defendant firm failed to pay the amount and hence the suit was necessitated.

3. The defendants admitted the reconstitution of the partnership firm as well the amount to be paid to the plaintiff as the share of the profit and capital as Rs. 2,28,184/-. It was also admitted that six months time was granted for payment and to give some elasticity it was decided to pay the amount due to all the retiring partners in installments. The defendants started payment in the month of October 2009 and made the whole payment by the end of December 2009. So the amount promised at the time of the reconstitution of the partnership deed was paid. The allegation that the plaintiff waited till 1.12.009 and thereafter demanded the amount is absolutely false and baseless. In fact the plaintiff had another partnership business with the second defendant and few others by name Intimate Chitts and Finance Ltd. It was dissolved on 9.9.2009. The plaintiff had to pay Rs. 20 lakhs to four persons but he did not pay the amount. The second defendant had already paid the money to the persons allotted to him. Since the plaintiff did not pay the amount it caused problems to the second defendant and hence he lodged a complaint before the Circle Inspector of Police, Pala. Other partners also lodged complaints and then the plaintiff agreed to pay the amount by 10.2.2010. Then he stealthy went to Nedumbassery Airport for leaving India on the very same day but due to the intervention of the Police he could not leave India and he was arrested; thereby he was compelled to make payments to the complainants. He had issued a cheque to one partner but the cheque was dishonoured and a criminal case was filed against him. Now the plaintiff in order to wreck vengeance had filed this case. The suit is a false and frivolous one.

4. Before the court below the power of attorney holder was examined as PW-1 and Exts.A1 and A2 were marked on his side. The second defendant was examined as DW-1 and DWs 2 to 4 were also examined and Exts.B1 to B7 series were marked on the side of the defendants. The court below after evaluation and appreciation of the evidence decreed the suit as prayed for. The said judgment and decree are under challenge.

5. Heard Smt. Daisy A. Philipose, the learned counsel for the appellants/defendants and Sri. H. Hams Rawther, the learned counsel for the respondent/plaintiff.

6. The allegation that the plaintiff, second defendant, James Joseph, Babu T.V and Girish Babu had business partnership by name M/s. Fantasy Collection for the sale of crockeries and presentation items as per a partnership deed dated 5.6.2003,