Person borrowing loan representing himself as partner of the firm, held liable.

JUDGMENT: This second appeal is preferred against the judgment and decree, dated 25.6.1993 made in A.S.No.15 of 1993 on the file of Principal Subordinate Judge, Erode. The second defendant is the appellant.

2. The plaintiff filed the suit in O.S.No.523 of 1988 on the file of II Additional District Munsif, Erode, stating that it is an unregistered firm doing money lending business and on 6.6.1985, the first defendant borrowed a sum of Rs.9,900 and executed promissory note promising to repay the amount to the plaintiff with interest at the rate of Rs.1.80 paise per hundred per month and defendants 2 and 3, as partners of the first defendant firm, signed the promissory note and obtained the money. It is the further case of the plaintiff that inspite of the repeated demands, the defendants have failed to pay either interest or principal and hence the plaintiff sought for a decree directing the defendants to pay a sum of Rs.13,998.60 with subsequent interest and costs.

The first defendant did not choose to appear in the suit and was The second defendant, in his written statement contended that he is not a partner of the first defendant firm and he did not execute the promissory note and the signature found therein may be a forged one and he is not liable for the suit claim.

The trial Court on consideration of the oral and documentary evidence came to the conclusion that the second defendant had put his signature in the suit promissory note and even though the second defendant is not a partner of the first defendant firm, knowingly he permitted himself to be represented to be a partner of the firm and hence he is liable for the suit claim as stipulated under Sec.28 of the Indian Partnership Act, 1932 and decreed the suit as prayed for against all the defendants. The second defendant preferred appeal in A.S.No.15 of 1993 and the learned Principal Subordinate Judge confirmed the above finding of the trial Court an dismissed the appeal with costs. Aggrieved by the same, the second defendant has preferred the present second appeal. In this judgment, for the sake of convenience, the parties are described as arrayed in the suit.

3. At the time of admission, the following substantial question of law has been framed in this second appeal.

“Whether the lower appellate Court committed material error in law in putting the burden of proof of the genuineness of the Appellant’s signature in Ex.A-2 on the Appellant instead of on the plaintiff/first respondent?”

4. Ex.A-2 is the suit promissory note dated 8.6.1985. To prove the borrowing by the defendants, the plaintiff examined its managing partner as P.W.1 and also examined the attestor of the promissory note as P.W.2. Both P.W.1 and P.W.2 have spoken to about the borrowing made by the first defendant firma nd the signature put by defendants 2 and 3 are partners of the first defendant firm. It is no doubt true that the second defendant is not a partner of the first defendant firm which is evident from Ex.B-3, the certificate issued by the Registrar of Firms.

5. The learned counsel for the appellant contends that the suit claim is made against the second defendant as partner of the first defendant firm and since the second defendant is not a partner, the suit claim is not maintainable against him. In fact, this contention has been raised before the Courts below and it was rejected on the ground that the second defendant permitted himself to be represented to be a partner of the firm and hence he is liable for the suit claim under Sec.28 of The Partnership Act.

6. As already seen, the second defendant had put his signature on the suit promissory note, in which, he is described as partner of the firm. In this context, the learned counsel for the appellant raises another contention stating that the second defendant has disputed the signature found in the suit promissory note as not his and the burden is only on the plaintiff to prove the signature. To prove the execution of the promissory note, the plaintiff

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