This appeal has been directed against the judgment and decree passed by the lower Court in dismissing the suit filed by the plaintiff. The suit was filed by the appellant/plaintiff before the lower Court for recovery of sum of Rs.3,20,008.25, with subsequent interest at the rate of 18% per annum with costs.
2.The brief facts mentioned in the plaint are as follows:-
The plaintiff is a registered partnership firm and is represented by its Power of Attorney, Mr.Arvind H.Chhathar, S/o.Hardoss aged about 50 years and residing at No.1, Marnaby Road, Devdarshan Apartments, Madras-10. The defendant is a partnership firm and the constitution of the firm is not known to the plaintiff. The defendant is required to furnish 'for JYOTI TEXTILE DYEING & PRINTING WORKS' names and address of all its partners. The plaintiff supplied goods to the defendant from time to time on the orders placed by the defendant. In the course of dealings with the defendant a sum of Rs.2,376,924.25 as on 03.04.1996 became due and payable by the defendant. The plaintiff supplied goods to the defendant by the following Invoice Numbers:
a)Invoice No.204 dated 29.6.1992 for Rs.1,05,031.00 balance Rs.7886.25.
b)Invoice No.268 dated 31.8.1992 for Rs.41,787.00
c)Invoice No.300 dated 12.9.1992 for Rs.30,314.25
d)Invoice No.304 dated 17.9.1992 for Rs.50,713.00
e)Invoice No.353 dated 16.10.1992 for Rs.35,478.00
f)Invoice No.396 dated 31.10.1992 for Rs.35,721.00
g)Invoice No.403 dated 31.10.1992 for Rs.36,024.75
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The plaintiff demanded the payment from defendant in person as well as through its representatives. The defendant neglected to pay the balance inspite of repeated demands by the plaintiff. The plaintiff, therefore, issued Lawyer's notices dated 24.05.1993, 29.06.1993, 03.08.1993 & 11.10.1993 from Jetpur, Gujarat and finally on 07.10.1996. The defendant has sent the following replies to the above Notices, claiming adjustment of Rs.51.001.00 in the credit of another concern M/s.B.N.D.Enterprises:-
a) Reply dated 28.05.1993
b) Reply dated 21.07.1993
c) Reply dated 14.06.1993
d) Reply dated 25.10.1993 The defendant has written a letter dated 28.05.1993 to the plaintiff promising to settle the bills. The plaintiff sent a final lawyer's notice dated 07.10.1996 calling upon the defendant to pay the balance of Rs.2,37,924.25 as on 03.04.1996 after adjustment of Rs.51,001.00 in the credit of M/s.B.N.D.Enterprises, with interest at the rate of 24% per annum within one week from the date of receipt of the said notice. The defendant had sent a reply notice. But the defendant has not paid the balance amount till date. The plaintiff is entitled to the following amounts:-
Principal amount 2.37,924.25 Interest @ 10% pa from 16.11.1994 to 16.10.1996 23/12 x 18/100 x 2,37,924.25 82,084.00 -------------- Total amount payable Rs. 3,20.008.25 --------------
Total amount payable is Rs.3,20,008.25. The plaintiff is entitled to interest at the rate of 18.5% per annum till the date of payment. The amount due is in respect of commercial transactions and therefore, the minimum lending rate of interest at 18% per annum by Nationalised Banks is applicable. The cause of action for the suit arose at Madras on 29.06.1992; when the defendant purchased textiles from the Plaintiff and subsequently on various dates when the defendants purchased goods from the plaintiff and when the plaintiff issued a lawyer's notice on various dates and finally on 08.10.1996. The suit has been properly valued. Hence, the suit.
3.The plea raised in the written statement by the respondent would run as follows:-
The plaintiff firm is not a registered firm. The said Mr.Arvind.H.Chhatbar is not the duly authorized agent of the plaintiff. The power of attorney has not been validly executed. The amounts demanded by the plaintiff in their several legal notices has not been consistently made. The plaintiff itself is not clear about the amount allegedly due by the defendant. The defendant stated that it is true that the defendant had business dealings with the plaintiff and had placed few orders with the plaintiff. The plaintiff had not supplied goods to the defendant on the alleged orders placed by the defendant. The defendant denied that the defendant-firm is liable to pay a sum of Rs.2,37,924.25 as on 3.4.1996. The defendant further denied that it had purchased goods from the plaintiff under seven invoices as alleged in the plaint. The defendant denied that the plaintiff had demanded payment through its representatives as alleged in the plaintiff. The plaintiff had not supplied goods as stated by them in the legal notices. The suitable replies have been sent by the defendant to the notices issued by the plaintiff denying the liability of the defendant to make the payment. The plaintiff has not given credit to a sum of Rs.51,000/- deposited by its sister concern B.N.D.Enterises and interest has also not been credit to on the said deposit. The incentive agreed to be paid by the plaintiff has not been given credit to. The defendant would submit that even during the previous transactions the plaintiff had not supplied goods in accordance with the specifications made by the defendant and as a result the defendant had discontinued to do business with the plaintiff. The goods supplied were not in accordance with the sample as shown by the plaintiff and the same was not accepted by the defendant. The defendant had on many occasions complained to the plaintiff's local representatives that the goods supplied were defective and damaged and the defendant had to incur additional expenditure and suffers a loss. The amount stated by the plaintiff both in the final legal notice and in the plaint is excessive, arbitrary and without any basis. The statement of account filed along with the plaint does not reflect the true state of affairs and the correctness of the figures mentioned therein is disputed by the defendant. The defendant has no agreement with the plaintiff to pay any interest at all. The defendant also stated that there has been no custom or practice to pay interest in the previous dealings and no demand for interest was also made by the plaintiff. The defendant is not liable to pay interest to the tune of Rs.82,084/- as claimed by the plaintiff. The plaintiff has filed the present suit to harass the defendant and malign its reputation in the trade. Hence, the suit is liable to be dismissed.
4.Before the lower Court the Power of Attorney of plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.33 were marked on the side of the plaintiff. No evidence both oral and documentary was produced on the side of the defendant. The lower Court had framed the following issued for disposal of the case:
1)Whether the plaintiff-firm is a registered partnership firm?
2)Whether Mr.Arvind H.Chhatbar is holding valid power of attorney?
3)Whether the defendant is liable to pay the amount?
4)Whether there is no agreement to pay interest and whether the defendant is not liable to pay the interest?
5)To what relief the plaintiff is entitled?
The lower Court had appraised the evidence adduced by the plaintiff before the lower Court and had come to the conclusion that the plaintiff could not maintain the suit and the claim of the plaintiff for the said amount and the subsequent interest thereon could not be awarded in favour of the plaintiff and accordingly, the suit was dismissed with costs.
5.On a careful consideration of the pleadings, the evidence produced before the lower Court, judgment and decree passed by the lower Court, the grounds raised in the memorandum of appeal and other records and the arguments made by the learned counsel for the respondent/defendant, this Court could see the following points emanated for disposal in this appeal_
1)Whether the suit filed by the plaintiff as a partnership firm through the power of attorney is maintainable?
2)Whether the defendant is liable to pay the suit claim made in the plaint?
3)Whether the plaintiff is entitled for 18% interest for the outstanding sum as claimed in the plaint?
4)Whether the judgment and decree passed by the lower Court are liable to be set aside and the appeal is allowable?
6.No representation for the appellant/plaintiff despite the name of the appellant is printed in the cause list. Heard the learned counsel for the respondent/defendant.
7.Point No.1:-The appellant was the plaintiff, who lost the case before the lower Court. The suit was filed by the plaintiff for recovery of sum of Rs.3,20,008.25 together with interest at the rate of 18% per annum on the principal amount of Rs.2,37,924.25 till the date of payment. The suit claim was made by the plaintiff on the foot of seven invoices namely_
a)Invoice No.204 dated 29.6.1992 for Rs.1,05,031.00 balance Rs.7886.25.
b)Invoice No.268 dated 31.8.1992 for Rs.41,787.00
c)Invoice No.300 dated 12.9.1992 for Rs.30,314.25
d)Invoice No.304 dated 17.9.1992 for Rs.50,713.00
e)Invoice No.353 dated 16.10.1992 for Rs.35,478.00
f)Invoice No.396 dated 31.10.1992 for Rs.35,721.00
g)Invoice No.403 dated 31.10.1992 for Rs.36,024.75
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Total Rs.2,37,924.25 -----------------
The plaintiff is described as a Registered Partnership Firm represented through the Power of Attorney viz., Mr.Arvaid.H.Chhatbar. In order to substantiate the claim of the plaintiff, he had examined the alleged power of attorney as P.W.1. The said deed of power of attorney was produced as Ex.A.33. The case of the appellant/plaintiff would be that the lower Court had grossly erred in not believing the verification affidavit of one L.Dayalan endorsed in the power of attorney itself and the lower Court did not give any opportunity to the plaintiff to produce ratification regarding the due execution of the Power of Attorney by the partner of the plaintiff firm. The further contention of the appellant would be that the said partner of the plaintiff firm viz.Narsidas Gangji could have ratified the power of attorney executed by him at any time, but the lower Court had dismissed the suit without giving the said opportunity. It is also the contention of the appellant that the said ratification of the deed of power of attorney deed could be done by the said partner even in the appeal stage and he was also arranging for another Power of Attorney to be executed by him after rectifying the action of the present power agent including the filing of the suit against the defendant/respondent. The further contention of the appellant would be that the registration of firm certificate was produced into the office at the time of filing the suit and therefore, it could not be said that the plaintiff was not a registered partnership firm and it could not maintain the suit in view of
Section 62 of the Partnership Act. The said registration certificate copies are being arranged to be produced by the appellant. Similarly, it is also the contention of the appellant that the lower Court was grossly erred in refusing the interest for the outstanding sum of money in the transaction the plaintiff had with the defendant. The contention of the appellant was also to the effect that the liability of the defendant was proved through the documentary evidence produced by P.W.1, but, however, the suit claim was not found to have been proved by the plaintiff before the lower Court, which is incorrect. The appellant has also requested to decree the suit as prayed for on the basis of the evidence submitted by the appellant before the lower Court. Apart from these grounds made in the appeal memorandum, no other submissions were made by the appellant himself or through his counsel.
7(a)From the submissions made by the learned counsel for the respondent/defendant this Court could understand that the transactions were said to have been had with the plaintiff during the year 1992 and the invoices produced as Ex.A.1 to Ex.A.7 will go to show that all the invoices are prior to 31.01.1992 and the lorry receipts produced as Ex.A.8 to Ex.A.14 would also confirm the said dates of dealings. The dispute in between the plaintiff and the defendant would be culled out from the exchange of letters produced in Ex.A.23 to Ex.A.26. According to the case of the defendant, the plaintiff had supplied the sub-standard quality of goods and had not supplied the goods in time and no incentives have been credited to the account of the defendant. It is also the case of the defendant that a deposit of Rs.51,000/- with the plaintiff in the name of the defendant's sister concern viz., B.N.D.Enterprises was not adjusted towards the said amount. No documents were produced to show the unconditional undertaking or acknowledgment of the defendant to pay the said outstanding amount on the foot of the invoices viz., Ex.A.1 to Ex.A.7. Admittedly the suit was filed on 28.10.1996 clearly after the period of three years. Moreover, the plaintiff had specifically denied that the plaintiff claimed to be the registered firm should have comeforward with necessary documents to prove that it is a registered firm and the partner, who is said to have executed the power of attorney to P.W.1, is shown as one of the partners in the list of partners. However, the plaintiff had not comeforward with the registration certificate and the list of partners in order to show that the plaintiff firm is a registered firm under Indian Partnership Act and the executant of power of attorney- Ex.A.33 is also one of the partners to the said firm. The case of the appellant in this appeal was to the effect that the registration certificate was produced along with the plaint at the time of filing the suit. If it was so, nothing would prevent him from marking the said document at the time of the examination of P.W.1. It was not done so. Similarly the person, who was said to have authorised P.W.1 to file a suit and to depose on behalf of the said firm, was not shown as one of the partners of the plaintiff firm.
7(b)The law is very clear in this aspect and according to
Section 69(2) of Indian Partnership Act, an unregistered firm cannot maintain a suit on behalf of the said firm. Reliance was placed by the learned counsel for the respondent on a judgment of this Court reported in 1999(II) CTC 540 (M/s.K.R.M.Money Lenders rep by its Power Agent Karuppiah s. Mr.A.Manohara @ Doss). The relevant passage would run as follows:-
"Merely because at the time of taking the plaint on file notice has been ordered and a copy of the registration had been produced and the plaintiff had been permitted to institute the suit, it cannot be assumed that the plaintiff is a registered firm and it is not as if the plaintiff exonerated from establishing that it is a registered firm or that the suit has been validly instituted or no objection is permissible on any letter date. The formality that has been complied with at the initial stage before taking the plaint on file and at the time of institution of the suit is always subject to all exceptions. Therefore, it follows that the defendants are entitled to raise such an objection in respect of the plaint which is non est in law. It cannot be said that the defendants have waived such an objection by their failure to raise or on the part of the court to frame an issue in this respect. The failure to establish that the plaintiff is a registered firm and the failure to establish that the power of attorney is competent to institute the suit, in my considered view and in the light of the above pronouncements renders the suit plaint a nullity which cannot be cured."
Apart from that, the validity of the power of attorney-Ex.A.33 is also questioned by the defendant. On a careful perusal of the evidence of P.W.1, this Court could see that P.W.1 goes to speak that the power of attorney was registered at Jetpur. Moreover, on a careful perusal of Ex.A.33-Power of Attorney Deed, I could see that it is not a registered power of attorney, but was notarized at Madras as rightly pointed out by the lower Court . The stamp papers were purchased in Madras and the person viz. L.Thayalan S/o.V.L.Nanthan had given a verification in the power deed itself declaring that the executant Mr.Narsudas Gangji had subscribed his signature on 08.10.1996 in his presence. It has not been stated in the said verification, as to where it was signed by the said Mr.Narsidas Gangji either at Madras or at Jetpur. The said Mr.L.Dayalan was not examined before the lower Court. Therefore, the evidence of P.W.1 to the effect that the said deed of power of attorney was executed by the alleged partner of plaintiff MR.Narsidas Gangji at Jetpur run contrary to the other documentary evidence. The appellant's contention that Mr.Narsidas Gangji, the partner of the plaintiff firm, could at any time rectify the authorization given to P.W.1 and therefore, it would not be fatal to the case and the dismissal of the suit is gross error committed by the lower Court, can not be sustained as it was not complied with.
7(c)The appeal was filed in the year 1999 and despite 10 years past no document was produced on the side of the appellant in respect of the ratification of the power conferred upon P.W.1. No registration certificate nor the list of partners were filed by the appellant in this appeal by way of additional evidence. Therefore, the failure to prove the power of attorney said to have been authorized in favour of P.W.1 is still without any change. The aforesaid judgment of this Court reported in 1999(II) CTC 540 (M/s.K.R.M.Money Lenders rep by its Power Agent Karuppiah s. Mr.A.Manohara @ Doss) is applicable in this stage also. Therefore, the appellant/plaintiff has no legs to stand on his pleadings nor proved them to maintain the suit before the lower Court, despite no plea has been raised in respect of limitation point. Therefore, I find no reason to hold that the suit filed by the plaintiff is maintainable.
8.Points 2 & 3:- The appellant/plaintiff had filed the suit for recovery of money on the basis of the business transactions made through Ex.A.1 to Ex.A.7 invoices. Admittedly all those invoices were dated 31.10.1992 and prior dates to the said date. The suit has been filed on 28.10.1996. The plaintiff did not specifically aver in the plaint regarding the exemption to be pleaded for maintaining the suit filed beyond the period of three years. There is no plea of any acknowledgment of liability of the defendant found in the plaint. Therefore, the claim made by the plaintiff is also not liable to be paid by the defendant to the plaintiff. Similarly, there is no agreement for payment of interest as seen through Ex.A.1 to Ex.A.7-invoices. It has also been found that the defendant is not liable to pay the suit claim made through Ex.A.1 to Ex.A.7 and therefore, the claim for interest at 18% per annum for the outstanding amount will not also arise. Therefore, both these points are also decided against the appellant.
9.Point No.4:- In view of the finding in Points 1 to 3 that the plaintiff is not entitled for any relief sought for by him and the suit is not maintainable in law, this Court is of the view that the judgment and decree passed by the lower Court are not liable to be set aside.
10.In the result, the appeal is dismissed, confirming the judgment and decree passed by the lower Court with costs.
07.07.2009 Index :Yes/No Web :Yes/No ssv V.PERIYA KARUPPIAH, J.
To, The II Additional Judge, City Civil Court, Chennai.
ssv A.S.No.333 of 1999 07.07.2009