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2018 Supreme(Mad) 972

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, J.
R. Chinnasamy – Appellant
Versus
T. Ponnusamy & Others – Respondent
Appeal Suit (MD) Nos. 225, 226 & 227 of 2009
Decided On : 12-04-2018

Advocates Appeared:
For the Appellant :M. Palani, Advocate.
For the Respondent:M.P. Senthil, Advocate.

Headnote:

Indian Partnership Act, 1932 – Section 4 – Evidence Act – Sections 74, 92 – Negotiable Instruments Act – Sections 118, 139 – Recovery of Amount – Plaintiff in the suit in O.S. on the file of the Principal District Court, Dindigul, is the appellant in these appeals – Appellant filed the suit against the respondent in O.S.No.37 of 2006 for recovery of a sum of Rs.11,80,000/- with future interest at 18% p.a – The appellant also filed two other suits in O.S.No.38 of 2006 and O.S.No.39 of 2006 against two others who are also the partners of the respondent herein in relation to a business in textiles. – Held, It is only in that line, the Honble Supreme Court has given the judgment and it has no application in this case. – Merely because the defendant has filed two documents which are concocted, the whole case of defendant cannot be discarded especially having regard to the peculiar facts and circumstances of the case. – The documents are among the defendant in the three suits and not intended to deceive the plaintiff. – As a matter of fact, this Court is able to see that the plaintiff has come forward with a false case contrary to Ex.A10. – Court hold that the money which was paid by the plaintiff to each of the defendant in the three suits is only by way of and towards settlement of accounts pursuant to the retirement of Ponnusamy from the partnership firm and that the plaintiff did not lend any amount as loan to the respondents in these appeals. – Appeals Dismissed

JUDGMENT :

1. The plaintiff in the suit in O.S.Nos.37, 38 and 39 of 2006 on the file of the Principal District Court, Dindigul, is the appellant in these appeals.

2. The appellant filed the suit against the respondent in O.S.No.37 of 2006 for recovery of a sum of Rs.11,80,000/- with future interest at 18% p.a. The appellant also filed two other suits in O.S.No.38 of 2006 and O.S.No.39 of 2006 against two others who are also the partners of the respondent herein in relation to a business in textiles.

3. The case of the appellant in the suit in O.S.No.37 of 2006 is as follows:

3.1. The plaintiff, the defendant, Thiru.Ponnusamy and two other persons by name Thiru.K.Ganesan and Thiru.S.Palanisamy are good friends. The defendant Thiru.S.Palanisamy and K.Ganesan started a mill under the name and style of Kurinji Spinning Mills Private Limited at Idaiyankinar, Erode and for the said business they requested the plaintiff to lend a sum of Rs.30,00,000/- agreeing to repay the same with interest at the rate of 18% p.a. within a period of six months. The said amount of Rs.30,00,000/- was paid to the defendants, Thiru.K.Ganesan and Thiru.S.Palanisamy each Rs.10,00,000/- by way of two cheques of Rs.5,00,000/- each to all the three. The defendant and other two persons encashed the cheque on 14.06.2005 and utilised the amount. The defendant did not repay the amount borrowed. Hence, the plaintiff through his lawyer issued a notice to the defendant on 30.01.2006 and notices were also issued to Thiru.Palanisamy and Thiru.K.Ganesan calling upon them to repay the amount borrowed by them with interest. The defendant and his two friends namely the other two borrowers through their Advocate issued a reply notice dated 15.02.2006. In the reply notice, it is admitted that the defendant, S.Palanisamy and K.Ganesan were doing textile business apart from other businesses. The receipt of Rs.10,00,000/- each from the plaintiff is also admitted. However, the contents in the said reply notice are false.

3.2. The plaintiff and Palanisamy/the respondent herein formed a partnership under the name and style of SRK Bus Services providing a capital of Rs.2,00,000/- each and entered into a partnership agreement on 25.05.1998. subsequently, the plaintiff's wife Tmt.Kannaki joined as a partner and a fresh partnership agreement was entered into on 18.06.2005. The defendant in the suit, namely, Thiru.T.Ponnusamy expressed his desire to retire from the partnership and accordingly on 22.06.2005 a retirement deed was executed. Thereafter, in the partnership business, plaintiff and his wife alone are partners and they are running the business. At the time of retirement of T.Ponnusamy settled his account from the firm and Form-V under the Indian Partnership Act, 1932 was also filed with the signature of all the partners on 24.06.2005. The contention of the defendant in the reply notice are contrary to the document signed by plaintiff. The profit and loss account of SRK Bus Services, Palani, for the assessment year 2005-06 and 2004-05 shows the capital accounts of defendant is only Rs.2,00,000/-. Hence, the plaintiff through his Advocate issued a rejoinder to the defendant's Advocate and there is no reply from the defendant to the rejoinder. Hence, the plaintiff is entitled to recover a sum of Rs.10,00,000/- along with interest from 14.05.2005 to 14.05.2006 for 12 months.

4. The suit was contested by the respondent in A.S.No.225 of 2009 in the following lines:

4.1. The defendant, his two partners one K.Ganesan and S.Palanisamy are good friends and all the three of them are in partnership among themselves, running several businesses in the field of textiles. The plaintiff also was a good friend of defendant and his partners. The defendant and his partners were not acquainted with transport business but the plaintiff was running transport and he was well acquainted and experienced in transport business. When the plaintiff wanted to purchase a new route between Palani and Coimbatore, h








































































































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