The High Court set aside the non-suit orders and decreed in favor of the plaintiffs, holding that the suit was properly instituted by registered partners and the defendants failed to prove discharge of the debt.
Judgment and decree of courts below set aside; decree passed for Rs.8,527.61 with future interest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932
SA.No. 482 of 1997(G) ------------------------------[AS.NO.77/1990 OF SUB COURT, CHERTHALA, OS.NO.284/1987 OF ADDL.MUNSIFF COURT,CHERTHALA] ....................
APPELLANTS/APPELLANTS/PLAINTIFFS:
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1. ASWATHI FINANCE, CHERTHALLA.
2. ASWATHY FIANANCE – BY MANAGING PARTNER, K.M. MATHAI, KOOTHUNGAL, CHERTHALLA KIZHAKKUMMURI, KOKKOTHAMANGALAM VILLAGE.
3. ASWATHI FINANCE – BY CHAIRMAN (PARTNER) K.K. THOMAS, RESIDING AT KOYIKKARAPUTHENVEETTIL, C.M.C. WARD NO. 18, CHERTHALLA.
BY ADVS. SRI.A.K.MADHAVAN UNNI, SRI.G.ANIL.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
--------------------------------------------------------------------
1. BALACHANDRAN, S/O. PARAMESWARAN PILLAI, RESIDING AT KUZHIYIDATHU VEETTIL, KADAKKARAPPALLY PANCHAYATH, WARD NO.9, KADAKKARAPPALLY MURI, VAYALAR, MEKKU VILLAGE.
2. RAJAGOPAL, RESIDING AT JAYA VILAS, KADAKKARAPPALLY PANCHAYATH WARD NO.4, DO. MURI.
3. NARASIMHAPRABHU PADMANABHA PRABHU, CHANNAMCHARRIL C.M.C. WARD NO.19, CHERTHALLA VADAKKU VILLAGE, VADAKKUM MURI.
R3 BY ADV. SRI.RAJU JOSEPH.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
prv.
P.BHAVADASAN, J.
------------------------------------SA No.482 of 1997-G ------------------------------------Dated 19th July 2010
Judgment
Faced with the concurrent findings against him, the plaintiffs in OS No.284/87 before the Munsiff's Court, Cherthala, has come up in appeal.
SA 482/97
2
to concoct the promissory note. It was also contended that the plaintiffs' firm is not a registered firm. On the above grounds, they prayed for a dismissal of the suit.
SA 482/97 3
suiting the plaintiffs under S.69(2) of the Partnership Act. It is stated that the partnership firm was duly registered under the Partnership Act. The acknowledgment of registration certificate was produced before the Trial Court. It was at the appellate stage that the partnership deed was produced. According to him, the courts below were not justified in dismissing the suit.
SA 482/97 4
the persons who filed the suit were, at that time, partners of the firm. All that was denied was that the plaintiffs' firm was a registered firm and there was no specific denial of the averment in the plaint that the plaintiffs were partners of the firm at the time of institution of the suit. It needs to be noticed that except denying the allegations in the plaint, the defendants did not adduce any evidence. An allegation which is not specifically denied, is deemed to have been admitted. This vital aspect has been lost sight of by the courts below. Therefore, the courts below were not justified in dismissing the suit.
SA 482/97
5
court below accepted the case of the plaintiffs as far as the amount due is concerned. There is no reason to take a
different view in that regard.
The plaintiffs are entitled to realise a sum of Rs.8,527.61 from the defendants, jointly, severally and personally from their assets with future interest @ 6% on Rs.5,700/- from the date of institution of the suit till the date of payment. There will be no order as to costs.
P.BHAVADASAN, JUDGE
sta
SA 482/97 6
2 issues framed by the court
Whether the dismissal of suit was justified due to violation of S.69(2) of the Indian Partnership Act regarding unregistered firm.
Whether the burden of proof was discharged by defendants claiming discharge of debt.
1 provisions across 1 enactments
ASWATHI FINANCE
BALACHANDRAN
RAJAGOPAL
NARASIMHAPRABHU PADMANABHA PRABHU
P.BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
