Durga Subrahmanyameswara and Co. vs Siripurapu Sankaraiah and Another

P.S. Narayana, J.—The appeal is filed as against the decree and judgment made in O.S. No. 3 of 1984 on the file of Subordinate Judge, Kothagudem. The unsuccessful plaintiff is the appellant.

The plaintiff filed the suit for recovery of a sum of Rs. 51,825/-. The suit was resisted. The evidence of P.Ws.1 to 4 and D.Ws.1 to 3 had been recorded and Exs.A1 to A16 were marked. The learned Judge after recording certain reasons, ultimately dismissed the suit observing that the suit is dismissed on a technical ground and hence, the parties to bear their costs. Aggrieved by the same, the present appeal is preferred.

Sri M.Y.K. Raidu, learned Counsel representing Sri P. Raja Rao, the learned Counsel for appellant-plaintiff, had brought to the notice of this Court that C.M.P. No. 824 of 1991 was filed praying for reception of the certified copy of the Certificate of Registration u/s 69 of the Indian Partnership Act, 1932 (hereinafter for short referred to as "the Act") issued by the Registrar of Firms, A.P., Hyderabad, as additional evidence. The Counsel would maintain that inasmuch as on a technical ground, the suit was dismissed it would be just and proper to mark the same as Ex.A17 and allow the appeal instead of sending the matter back again. The learned Counsel also would point out that originally the suit was instituted in individual name and in the light of the objection taken, the same was amended as representing the Partnership Firm and inasmuch as the defect was rectified by virtue of an amendment, the amendment would relate back to the date of the institution of the suit and hence, the view expressed by the learned Judge that if the date of amendment be considered, the suit would be barred by limitation, also is not the correct view.

Per contra, the learned Counsel representing respondents-defendants had taken this Court through the findings recorded and would contend that in the light of the facts and circumstances, the additional evidence to be negatived and the findings are to be confirmed.

In the light of the facts and circumstances, the following points arise for consideration in this appeal:

Whether the findings recorded by the learned Subordinate Judge, Kothagudem, negativing the relief of recovery of money to appellant-plaintiff be legally sustained in the facts and circumstances of the case ?

Whether C.M.P.No. 824 of 1991 to be allowed or to be dismissed in the facts and circumstances of the case ?

If so, to what relief the parties would be entitled to ?

Point Nos. 1 and 2:

Originally, the suit in O.S. No. 3 of 1984 was filed by Sri P. Subrahmanyeswara Rao as the plaintiff, but however, the same was amended as "M/s. Durga Subrahmanyeswara and Company represented by its Managing Partner P. Subrahmanyeswara Rao" by virtue of an order made by the learned Subordinate Judge, Kothagudem, in I.A.No. 228 of 1990, dated 28.2.1990. The suit is for recovery of a sum of Rs. 51,825/-. The case of the appellant-plaintiff is that the plaintiff is a Civil Works Contractor and he had obtained a contract for construction of residential quarters of S.C. Co., at Manugur, and the respondents-defendants are the brick manufacturers. On 31.1.1981 they entered into an agreement with the plaintiff for supply of 25 lakhs bricks at the rate of Rs. 72/- per one thousand bricks and on the same day, they received an advance of Rs. 30,000/- from the plaintiff. On 10.2.1981, the first defendant received another sum of Rs. 15,000/- from the plaintiff, but the defendants had not supplied the bricks and the plaintiff purchased the bricks from others and hence, the defendants are liable to return the amount of Rs. 45,000/- received from the plaintiff together with interest at 12% per annum.

The first defendant filed the written statement denying the very fact of entering into an agreement with the plaintiff, but it was pleaded that they entered into an agreement with Peddaiah and they manufactured six lakhs bricks and delivered the same to Peddaiah and according to the terms and conditions of the agreement, Peddaiah had to supply coal to the defendants for manufacture of bricks, but coal was not supplied to them. The first defendant prepared four lakhs bricks, but could not bake them for want of coal. It was also pleaded that in the meanwhile, mansoon set in and the entire stock of unbaked bricks were damaged and became unfit for use. It was also pleaded that Peddaiah paid an amount of Rs. 45,000/- to the defendants and the accounts were maintained by the second defendant, who colluded with the plaintiff. It was also pleaded that the suit is bad for non-joinder of Peddaiah, a necessary party. The first defendant was permitted to amend the written statement raising a plea relating to the maintainability of the suit on the ground that though the suit claim relates to the firm, the suit was not filed on behalf of the firm and the firm was not registered with the Registrar of Firms. However, the plaintiff was permitted to amend the description of the plaintiff P. Subrahmanyeswara Rao into "M/s. Durga Subrahmanyeswara and Company represented by its Managing Partner P. Subrahmanyeswara Rao" as per the order made by the learned Judge dated 28.2.1990 in I.A. No. 228 of 1990. The second defendant did not contest the suit.

The following issues were settled:

Whether the plaintiff is entitled to recover any amount ?

Whether Peddaiah is a necessary party ?

To what relief ?

The following additional issue was framed on 1.2.1990:

Whether the suit claim relates to a firm ? If so, whether the said firm is not registered with the Registrar of Firms and whether the suit is not maintainable ?

The following additional issues were framed on 26.4.1990:

Whether the suit is maintained in the present form ?

Whether the suit claim is barred by limitation ?

The plaintiff examined four witnesses and marked Exs.A1 to A16 and the first defendant examined two witnesses and no documents were marked.

While answering the issue whether the suit claim relates to a firm and if so, whether the said firm is not registered with the Registrar of Firms and whether the suit is not maintainable, the learned Judge recorded the reasons at paras 12, 13, 14 and 15 of the judgment and came to the conclusion that the plaintiff failed to comply with the mandatory provisions of Section 69(2) of the Act and the suit is barred by virtue of the said provision. However, while answering issue No. 1, the learned Judge observed that the plaintiff has proved that it had paid an advance of Rs. 45,000/- to the defendants for supply of bricks and the defendants failed to supply the bricks and therefore, the defendants are liable to refund the amount to the plaintiff together with interest thereon. But however, in view of the finding recorded in relation to additional issue framed on 1.2.1990 to the effect that on account of the non-registration of the plaintiff firm with the Registrar of Firms, the suit is not maintainable and the plaintiff is not entitled to recover the suit amount from the defendants.

Issue No. 2 and additional issue Nos. 1 and 2 framed on 26.4.1990 also had been answered in Paras 18, 19 and 20 of the judgment and ultimately, in the light of the said finding, the suit was dismissed.

In the light of the reasons which had been well explained in the affidavit filed in support of the application in Paras 2 to 7 in C.M.P. No. 824 of 1991, and also in the light of the findings recorded by the learned Judge, this Court is of the considered opinion that it would be just and proper to permit the additional evidence to be received and accordingly, C.M.P. No. 824 of 1991 is hereby allowed.

It is needless to say that normally when a mistake in the cause title relating to the description of the parties is rectified, the amendment would relate back to the date of institution of the suit. However, inasmuch as on the ground that the plaintiff firm was unable to establish that it is a registered firm to maintain the suit, the same was dismissed, and inasmuch as C.M.P. No. 824 of 1991 is being allowed by this Court, this Court is of the considered opinion that the matter to be sent back for the purpose of giving an opportunity to the parties to let in further evidence on these aspects.

Point No. 3:

In the light of the findings recorded above, the decree and judgment in O.S. No. 3 of 1984 on the file of Subordinate Judge, Kothagudem are hereby set-aside, and the matter is remanded to the trial Court with a direction to afford an opportunity to both the parties to let in further evidence on the aspects referred to supra and decide the matter afresh in accordance with law. It is needless to say that the suit is an old suit for recovery of money. In view of the same, the learned Judge shall expeditiously dispose of the matter at an early date, preferably, within a period of four months from the date of receipt of a copy of this order, and inasmuch as the order of remand is made, the parties to bear their own costs.