Heard counsel for the appellant. The respondents had appeared through their counsel, but no one appears on behalf of them today. There was no representation on their behalf on the previous date also.
The impugned judgment and decree dated 24th June 1997/7th July 1997 passed in Money Suit No.05 of 1994 by learned Sub-Judge-IV, Jamshedpur is in challenge in the present appeal by the defendant/appellant.
The suit was for a decree for realisation of Rs. 6,59,826.38/- in favour of the plaintiffs including interest till the date of filing of the suit pendente lite and future interest @ 24% per annum till the date of its realisation, besides the cost. The learned trial court by the impugned judgment decreed it in part on contest with cost against the defendants by directing them to pay the decreetal amount of Rs.6,80,000/- to the plaintiffs within ninety days from the date of signing of the decree. The defendants were also directed to pay interest pendente lite and future interest @ 9% per annum on the decreetal amount, failing which the plaintiffs should be entitled to realise the decreetal dues through the process of the court at the cost of the defendants. The brief case of the parties, as pleaded before the learned trial court, is as under.
Plaintiff, claiming itself to be a registered partnership firm carrying the business of contract, distributorship and order supply with its office at Jamshedpur, was given jobs to do the works of different kinds by the defendant-company for a sum of Rs.8,69,000/- vide job orders/work orders dated 20th January 1990. Work orders were changed by order no.5 on 27th December 1991 and the value was increased to Rs.15,26,372/-. Plaintiff was also given job being sanction order dated 1st April 1988 for Rs.12,094.56 paise. It was further awarded work orders dated 18th October 1990 for Rs.5,60,000/-. It is the case of the plaintiff that 10 number of jobs were awarded to him. After the completion of the works, the defendant-company detained Rs.34,992/- from the bills of the aforesaid 10 jobs. It was further contended that in respect of one job no.319/TM/1989-90 the defendant did not make payment of the 3rd account bill dated 11th July 1991 for a sum of Rs.2,48,916.42/-. Similarly the 4th and final bill of job no.319/TM/89-90 dated 6th September 1991 for Rs.4,42,482.84 was also not paid by the defendant- company. Another amount of Rs.53,708.15/- due against 3rd account bill of job no.109/TM/1990-91 bill dated 24th January 1992 was paid, but the 4th and final bill of the said job totalling Rs.28,855.21 paise was not paid. Thus, a total amount of Rs.10,54,826.38/- became due which includes the interest @ 24% per annum.
According to the defendants, plaintiffs were given work orders dated 22nd December 1990 for making 50 car garages, nine cycle cum scooter shades and when he did not comply, defendants were compelled to terminate the contract on 4th November 1991 which caused loss and damage to the extent of Rs.10,03,565/- to the defendants. The defendants at paragraph-18 of the written statement admitted that a sum of Rs.6.80 lakhs was lying due in the credit of the plaintiffs from defendants against various jobs including the jobs for which the present suit has been filed. The defendants alleged that for the breach of contract by the plaintiffs, the defendants were entitled to realise a sum of Rs.3,23,565.50 paise as detailed in Schedule-B of the written statement. The defendants had also filed Money Suit No.52 of 1994 before the learned Sub-Judge-I, Jamshedpur.
Plaintiff examined its partner J.K. Sohan who proved the bill dated 11th July 1991. He also proved his certification by the Assistant Zonal Engineer of TISCO and Deputy Superintending Engineer, Town Engineering which is marked as Exbt-2. He also proved the bill dated 1st January 1992 which is marked as Exbt.2/A. He proved the bill dated 12th October, 1991 which is Exbt.2/C. Challan for supply of Gadda was marked as Exbt.3. He also deposed that the Superintending Town Engineer issued a letter to refund the security money which has not been complied with. The same is marked as Exbt.4. Exbt.5 is the letter dated 30th August 1993 issued by the defendant Senior Deputy Manager, Town Engineering. This witness also proved the bill dated 5th July 1991 bearing no.31 counter signed by the officials of the defendant-company marked as Exbt.2/D. Exbt.2/C is the bill dated 11th July 1991 bill dated 23rd November 1991 is marked as Exbt.6. Plaintiff also filed a certificate of registration of the plaintiff-firm marked as Exbt.6.
The defendants examined one D.W.1- Chandrama Rai to support their case who stated that the plaintiff-company is not a registered partnership firm and the claim is not correct. He also deposed in cross-examination that he did not know about the jobs for which the plaintiff has filed the suit. Based on the pleadings of the parties, the following issues were framed:-
(i) Is the suit as framed and maintainable?
(ii) Have the plaintiffs got cause of action for the suit?
(iii) Is the suit barred by law of limitation?
(iv) Are the plaintiffs entitled to get a decree for Rs.10,54,836.38 as detailed in the Schedule-A of the plaint and interest pendent lite and future against the defendant?
Learned trial court analyzed the material exhibits produced by the parties during evidence and their pleadings and found that the claim of the plaintiff was admitted by the defendant-company at paragraph-18 of the written statement. It also found corroboration in the statements of P.W.1 that the dues were admitted by the defendant. The learned trial court accordingly held that plaintiff is entitled to Rs.6,80,000/- in his favour. Issue No.(iv) was accordingly answered in favour of the plaintiff. Issue Nos. (i) to (iii) were decided together. The learned trial court did not find any merit in the objection of the defendant raised under Section 69(2) of the Partnership Act in view of the fact that the plaintiff had filed the details of five partners. Moreover, the certificate of registration of the plaintiff-firm was also brought on record as Exbt.6. The plea of defendant that there were only two partners, was therefore not found to be tenable. The suit as filed by the plaintiff-firm was therefore held to be maintainable. Accordingly by the impugned judgment the relief prayed for was allowed however with interest @ 9% per annum pendente lite and future only and not for the period anterior to the filing of the suit.
Learned counsel for the appellant has made efforts to question the findings of the learned trial court on both counts.
He has however not been able to dislodge the findings relating to the admission made at para-18 of the written statement where the defendant had accepted the dues of Rs.6,80,000/- in favour of the plaintiff. Learned counsel for the appellant has also stated during course of arguments that Money Suit No. 52/1994 filed by the defendants against the plaintiffs in the court of Sub-Judge-I, Jamshedpur has also been dismissed. The plea relating to the maintainability of the suit could also not be made vulnerable in spite of the strenuous arguments made by learned counsel for the appellant as the firm was a registered partnership firm. Suit has been filed in the name of partnership firm itself.
Learned counsel for the appellant have also informed that during pendency of this appeal by virtue of the interim orders dated 7th September 1998 and 17th December 1998 the defendant/appellant herein was directed to deposit the entire decreetal amount before the executing court by 25th September 1998. The respondent was also allowed to withdraw the said amount on furnishing bank guarantee to the satisfaction of the executing court. As per the instruction furnished to the learned counsel for the appellant, the plaintiff/respondent had deposited a bank guarantee equivalent to the amount of Rs.9,16,939/- while withdrawing the decreetal amount. The said bank guarantee was extended up to 3rd April, 2019 and is still valid.
I have considered the submissions of learned counsel for the appellant and gone through the relevant material records relied upon by them and also the impugned judgment.
The points in issue with which the appellant is aggrieved i.e. the findings of the learned trial court on the admissibility of the claim of Rs.6,80,000/- and the maintainability of the suit in view of the provisions of Section 69(2) of the Partnership Act have been duly discussed by the learned trial court on the basis of the material evidence and pleadings of the parties as reflected in the foregoing paragraphs of this judgment. When the learned trial court was satisfied on the basis of admission made in the written statement of the defendants themselves and that Money Suit No.52/1994 preferred by them against the plaintiff for realisation of a sum of Rs.3,23,565.50 paise was also dismissed, claim of Rs.6,80,000/- decreed in favour of the plaintiff cannot
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be said to suffer from any error of fact or appreciation of the material evidence on record. On the other hand, the findings relating to the maintainability of the suit also stands unimpeached in view of Exbt.6 being the certificate of registration of the plaintiff-company proved during trial. The firm being a registered partnership firm, was entitled to sue and enforce its right arising out of a contract by or on behalf of any person showing as a partner in a firm. On both counts, therefore, this Court is satisfied that the impugned judgment and decree does not suffer from any such error of law or facts which deserves interference. The decreetal amount having been deposited and realised in favour of the respondents by virtue of the interim order, the executing court shall discharge the bank guarantee submitted by the respondents on their application made. The appeal is dismissed. Decree accordingly. The lower court records may be returned to the court concerned forthwith.