The plaintiff was entitled to recover payments owed under agreements, affirming that individual rights supersede partnership firm status and that jurisdictional dismissal was erroneous.

JUDGMENT

Bhaskar Raj Pradhan, J. - The regular first appeal seeks to challenge the judgment and decree dated 19.12.2019 passed in Money Suit No.279 of 2017 by the learned District Judge, Special Division-I Sikkim at Gangtok (learned District Judge) dismissing the suit.

2. The plaint was filed by the appellant-Surja Narayan Pradhan (the plaintiff) against the respondents-Jumden Lepcha (defendant no.1) and O.T. Lepcha (defendant no.2). The plaint alleged that the plaintiff had taken on lease a property owned by the defendants for running a hotel. According to the plaint it was agreed between the plaintiff and the defendant no.1 that the plaintiff would construct and extend further one and half stories to the existing residential building, renovate the premises and convert it into a hotel at the cost of the plaintiff. It was the case of the plaintiff that, he had, during the course of construction deposited money in the loan account of defendant no.1 maintained in the State Bank of India towards payment of loan availed by the defendant no.1 in the name of the hotel. It was further averred that the plaintiff deposited money in the account of defendant no.2 as well in the State Bank of India and Axis Bank India Ltd. On completion of the construction, extension and renovation in the year 2010 he started running the hotel on mutual consent without drawing any lease agreement. It is averred that, thereafter, in the year 2013 a lease deed dated 18.03.2013 (exhibit-12) was drawn between the plaintiff and defendant no.1 for a period of eleven months commencing from 01.05.2013 to 31.03.2014 at an annual lease rent of Rs.13 lakhs excluding water and electricity charges. The construction and renovation work on the premises was calculated by the parties jointly and it was found that the plaintiff had incurred Rs.55 lakhs which was acknowledged in the lease deed. In fact the defendant no.1 had also undertaken to pay back the said amount between 21.03.2014 to 31.03.2014. The plaintiff further avers that on the expiry of the stipulated period and when the defendant no.1 was unable to repay the sum of Rs.55 lakhs, an agreement dated 15.10.2014 (exhibit-13) was drawn between the defendant no.1 and the plaintiff whereby the defendant no.1 agreed to pay a sum of Rs.13,75,000/- in cash on 17.07.2014, a further sum of the same amount in cash on 27.09.2014 and pay the remaining amount of Rs.27,50,000/- by two post dated cheques. It is stated that the defendant no.1 made payment of Rs.27,50,000/- in two instalment i.e. 17.07.2014 and 27.09.2014 and informed the plaintiff that she would pay the remaining amount of Rs.27,50,000/- by two cheques payable from the account of defendant no.2. On 15.10.2014 the defendant no.2 issued two post dated cheques for a sum of Rs.13,75,000/- each, both drawn at State Bank of Sikkim, towards payment of outstanding amount of Rs.27,50,000/-. It is averred that before presentation of the first cheque bearing No.070618 dated 30.12.2014 the defendant no.2 paid Rs.13,75,000/- in cash and resultantly the cheque was not presented for payment. On 17.04.2015 the plaintiff presented the second post dated cheque bearing No.070619 dated 30.03.2015 which was however, returned by i.e. Axis Bank Ltd. on account of insufficient funds. The cheque was re-presented on 09.05.2015 which was once again returned unpaid due to insufficient funds. Legal notices dated 25.05.2015 and 06.07.2015 were thereafter issued which was followed by a proceeding under section 138 of the Negotiable Instrument Act, 1881 which was ultimately withdrawn. Ultimately, the suit was filed in the year 18.12.2017 against the defendants seeking a decree of Rs.15,40,000/- inclusive of interest calculated @ 12 % per annum with a further prayer for pendentlite and future interest @ 12% per annum.

3. The defendants filed their joint written statement. They pleaded inter alia that the suit was not maintainable; that there is no cause of action for filing the suit; that the plai