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2017 Supreme(Mad) 1377
IN THE HIGH COURT OF MADRAS
T. Ravindran, J.
A.G. Sekaran – Appellant
Versus
M/s. Essaargee Fibro Industries and others – Respondents
S. A. No. 642 of 2011 and M.P.No.1 of 2011
Decided On : 03-02-2017
Headnote:
Civil Procedure Code, 1908 – Order 1and 23 – Rule 9 and 1 – Indian Partnership Act, 1935 – Section 69 – Suit for Recovery of Money – Claim against Partnership – Plaintiff claiming to be erstwhile partner of M/s. Essaargee Fibro Industries first defendant unregistered firm has laid the suit for recovery of money on basis of letter of promise stated to have been issued by first defendant according to plaintiff has retired from the first defendant partnership firm and pursuant to same letter of promise first defendant partnership firm has promised to pay sum mentioned therein to plaintiff towards his capital, share, goodwill as erstwhile partner of first defendant firm and inasmuch as amount had not been paid as promised according to plaintiff he has been necessitated to lay suit against defendants – Held, Plaintiff suit is not maintainable by unilaterally giving up his claim against the first defendant partnership firm without due notice and also without effecting consequential amendment of pleadings and suit laid by plaintiff is bad for mis joinder of necessary party – Plaintiff is not entitled to maintain suit earlier plaintiff has laid present suit as against the defendant on the footing that he had got himself relieved from partnership and only on account of same letter of promise been written by first defendant fact has not been established by adducing best evidence particularly letter of option said to have been issued by plaintiff and when document Ex.B6 strikes against case of plaintiff found that contention of plaintiff that first defendant firm had agreed to pay suit amount in lieu of his capital, share, good will as erstwhile partner of first defendant firm as such cannot be accepted – Appeal dismissed.
T. Ravindran, J.
Challenge in this second appeal is made by the plaintiff against the judgment and decree dated 03.05.2010 passed in A.S. No.358 of 2009 on the file of the Additional District Judge, FTC-V Chennai reversing the judgment and decree dated 15.12.2006 made in O.S. No.1406 of 2003 on the file of the 11th Assistant City Civil Court, Chennai.
2. The second appeal has been admitted and the following substantial questions of law are formulated for consideration in this second appeal.
"(i) Whether the suit filed by the appellant in spite of his giving up his claim against the partnership Firm, the 1st defendant in the suit, requires consequential amendment of pleadings and whether suit can be dismissed for misjoinder of party.
(ii) Whether the suit filed by the appellant even having given up the claim as against the partnership Firm is hit under Section 69 Indian Partnership Act, 1935."
3. The suit has been laid by the plaintiff for recovery of money
4. The plaintiff claiming to be the erstwhile partner of M/s. Essaargee Fibro Industries, the first defendant unregistered firm has laid the suit for recovery of money on the basis of the letter of promise stated to have been issued by the first defendant dated 01.04.2002. Now, according to the plaintiff, he has retired from the first defendant partnership firm from 31.03.2002 and pursuant to the same, under the letter of promise dated 01.04.2002, the first defendant partnership firm has promised to pay the sum mentioned therein to the plaintiff towards his capital, share, goodwill as the erstwhile partner of the first defendant firm and inasmuch as the amount had not been paid as promised, according to the plaintiff, he has been necessitated to lay the suit against the defendants. It is stated that the defendants 2 & 3 are the partners of the first defendant firm particularly, the second defendant is stated to be the managing partner.
5. The defence has been taken by the defendants 1 to 3 contending that the plaintiff has not been relieved from the partnership firm from 31.3.2002 as claimed by the plaintiff and further, the letter of promise dated 01.04.2002 has not been issued, as claimed by the plaintiff and according to the defendants, the same had been created by the plaintiff by making use of the letter pad of the first defendant firm contending that as the plaintiff was in-charge of the business, he used to obtain the signature of the defendants 2 & 3 in the partnership transactions and accordingly, had misused the letter pad by obtaining the signature of the second defendant and created the alleged letter of promise dated 01.04.2002 and therefore, there is no question of the defendants promising to pay the plaintiff the suit amount towards his capital, share, goodwill and the further defence has also been taken by the defendants that the suit is not maintainable, in the light of the provisions of Section 69 of the Indian Partnership Act, 1932.
6. Admittedly, the first defendant firm is an unregistered firm. Therefore, it could be seen that as per Section 69 of the Indian Partnership Act, 1932, the suit is not maintainable against the first defendant firm and its partners. The plaintiff, on becoming aware of the defence taken by the defendants 1 to 3 on the question of the maintainability of the suit under Section 69 of the Indian Partnership Act, 1932, it appears, had given up his claim as against the first defendant during the course of evidence and thereby proceeded his case as against the defendants 2 & 3. It is found that without necessary amendment of the pleadings as regards the giving up of the first defendant by the plaintiff, the trial court has also proceeded with the suit and accepting the case of the plaintiff, decreed the suit in favour of the plaintiff as against the defendant 2 & 3. The defendants 2 & 3 preferred the first appeal and the first appellate court, set aside the judgment and decree of the trial court and consequently, dismissed the suit
