MRINAL KANTI ROY vs SUNIL NATH

1.Heard Mr. D. Barua, the learned counsel for the appellant as well as Mr. S Dutta, learned Senior Counsel assisted by Mr. Siddhant Dutta, the

learned counsel appearing for the respondent.

As per the memo of appeal, the same is found to be presented under Section 98 of Civil Procedure Code (CPC for short). Obviously, this is a

mistake in presentation of appeal. Therefore, for ends of justice, this appeal is treated as one under Section 96 CPC. The respondent herein is the

plaintiff in T.S. No. 38 of 2006. As per the plaint the defendant was M/s. Daniel Construction, a registered partnership from having office at Rajendra

Complex, Premtola, Silchar, represented by its partner, Sri Mrinal Kanti Roy. However, the present appeal has been preferred by Sri Mrinal Kanti

Roy. Although the appellant was not arrayed as one of the defendants in the suit, while filing this appeal, the appellant has not taken any leave of this

Court to file the present appeal. Nonetheless, as the appeal is found to have been filed on 13.07.2000, and was admitted for hearing by order dated

27.04.2012, this court is not inclined to non-suit the appellant after about 8 years on this technical ground. Having observed that the appellant was one

of the partners of the defendant No.1 firm, the hearing of this appeal has been proceeded with.

In the suit it was projected by the respondent herein that one Subash Kr. Dev Roy was the owner of the land on which Shibam Apartment situated

at Central Road, Silchar was constructed by the defendant firm, namely, M/s. Daniel Construction (hereinafter referred to as “defendantâ€). By

virtue of registered Deed of Agreement No.896 and Power of Attorney No.86, both dated 21.07.2000, the land owner had appointed the defendant as

his attorney, and gave them the authority to sell/ transfer the ownership rights of the flats and shops in the said building to the intending purchasers.

Accordingly, by an Agreement dated 10.02.2001, the defendant had entered into a contract with the respondent herein for sale of a shop room bearing

Room No.5, having a total area of 333 sq. feet, and described in the Schedule appended to the plaint for a sale consideration of Rs.8,65,000/- and it

was stated that the defendant had taken an advance of Rs.2,00,000/- from the respondent by issuing a separate money receipt dated 10.02.2001. It

was stated that thereafter, pursuant to the said agreement, the respondent had paid a further sum of Rs.1,00,000/- on 23.03.2001 and a further sum of

Rs.1,00,000/- on 28.04.2001. However, the defendant did not complete the proposed construction. As the appellant had expressed his inability to

complete the construction because of financial crisis, the respondent paid a further sum of Rs.4,65,000/- to the defendant on 22.12.2003, and while

receiving the said last payment, the appellant, signed an Agreement dated 22.12.2003, as the partner of the defendant and that by the said writing, the

defendant had acknowledged the receipt of a sum of Rs.1,00,000/- paid on 23.03.2001 and on 28.04.2001 and the receipt of a further sum of

Rs.4,65,000/- from the respondent on 22.12.2003 and undertook to deliver the possession and to complete the sale within 6 (six) months. However,

neither the sale was completed nor possession of the promised space was delivered to the respondent. Hence, the respondent had filed a suit for

specific performance of the said contract with a prayer for executing the sale deed, for delivery of property, for formal injunction, cost, etc.

The appellant contested the suit in his own name and took up the plea of non-maintainability of the suit under the provision of the Partnership Act

because it was not registered with the Registrar of Firms and could not be legally sued and it was also stated that the suit was not maintainable under

Specific Relief Act, further stating that all the partners of the firm were necessary parties without impleading them, for which the suit was bad for

non-joinder of necessary parties. The appellant denied receipt of Rs.4,65,000/-, and it was further stated that the respondent had failed to pay the

balance consideration of Rs.6,65,000/-. The appellant further took up a plea that the respondent had agreed to finance the partners for the

defendant’s business and against the loan taken, dividends were paid to the respondent. It was also stated that the alleged Agreement dated

27.12.2003 was neither executed by the appellant nor had he received any money mentioned therein and that the said agreement was an anti-dated

one, created falsely for the suit. It was further stated that the appellant used to give signed blank stamp papers to the respondent on good faith while

taking loan and therefore, the Agreement dated 22.12.2003 was prepared on one such paper. However, the appellant had stated that upon perusal of

the original document, he can ascertain whether the said agreement was one of such stamp paper. Accordingly, the appellant had prayed for dismissal

of the suit.

As per the records, the written statement was filed after the time stipulated under Order VIII Rule 1 CPC, and, as such, the said written statement

of the appellant was accepted by the learned trial court by order dated 25.06.2007. Hence, no issues were framed for trial. The appellant was not

permitted to adduce any evidence vide order dated 28.08.2008.

The respondent examined himself as PW-1 and he had exhibited the Agreement dated 10.02.2001 (Ext.1), Money receipt of Rs.2,00,000/- dated

10.02.2001 [Ext.1(i)], Deed of Agreement dated 22.12.2003 (Ext.2).

For the purpose of deciding the suit, the learned Trial Court had framed one issue i.e. Whether the plaintiff is entitled to a decree as prayed for?

The learned Trial Court by discussing the provisions of section 25 and section 69 of the Partnership Act, 1932 had held that there was no bar for

filing a suit and it was further held that all the partners of the firm are liable jointly for the acts of the firm. The learned Trial Court further held that the

respondent herein had been able to prove the Agreement dated 10.02.2001 (Ext.1) was in respect of purchasing the shop room No.5, having an area

of 333 sq. feet and it was held that the vide Ext.1(i) and Ext.2, the respondent herein had proved that the payment of full consideration of Rs.

8,65,000/- was made to the defendant. The learned Trial Court had further held that from the contents of Ext.1 it was duly established that the

appellant herein was the constituted attorney on the promoter firm. As a result, the issue No.1 was decided in favor of the respondent No.1 and the

suit was decreed with cost by declaring that the defendant firm shall execute and register a sale deed in respect of suit premised in respect of

respondent herein and deliver possession thereof within a period of 1 (one) month from the date of passing a decree, failing which the sale deed would

be executed and registered according to the provision s of Order XXI Rule 34 (5) and 6(a) CPC. A decree for permanent injunction was also granted

to restrain the defendant from alienating/ transferring the suit property to any other party.

Heard the submissions advanced by the learned counsel for the appellant as well as the learned Senior Counsel for the respondent. The learned

counsel for the appellant has strenuously argued on the basis of the issues raised by the appellant before the learned Trial Court by filing his written

statement, notwithstanding that the said written statement was not accepted by order dated 25.06.2007, as indicated herein before. Hence, the only

point of determination, which arises in the present appeal is that Whether the impugned judgment and decree is sustainable on facts and in law?

The first point raised by the learned counsel for the appellant was that the suit was bad for non-joinder of the other partners of the defendant firm.

The said point was denied by the learned Senior Counsel for the respondent. This issue appears to be well settled by this Court in the case of State of

Tripura and anr. Vs. Bhowmik and Company, AIR 2004 Gau 19: (2004) 1 GLR 489. In the said case, this Court had held that the partners can be

sued in the name of firm and when so sued, the firm includes and represents its partners and therefore, it was held that that the question of non-joinder

of a partner by his name does not arise when the suit is against the firm. Therefore, the issue raised by the learned counsel for the appellant is not

sustainable, because as the present suit is found to have been filed against the defendant, which is a partnership firm, the suit cannot be held to be bad

for non-joinder of its partners. Moreover, the learned Trial Court appears to have rightly held, by referring to section 25 of the Partnership Act that

every partner is jointly and separately liable for facts of the firm while he is a partner. Moreover, the provisions of Order XXX Rule 1 CPC, permits

the partners to be sued in the name of the firm. Hence, this Court finds that the suit was not bad for non-joinder of any partners as the co-defendants

in the suit.

The other point which has been taken up by the learned counsel for the appellant was that the respondent had given loan to the partners for doing

business of the defendant firm and that in course of such monetary transactions, the appellant had signed blank stamp papers upon which the

agreement dated 22.12.2003 (Ext.2) was prepared. The said stand was denied by the learned Senior Counsel for the respondent. He had submitted

that the appellant having failed to prove his stand, the said ground was not sustainable on facts and in law. In this regard, on a perusal of the

Agreement dated 10.02.2001 (Ext.1) and the Agreement dated 22.12.2003 (Ext.2), it is seen that by the Agreement dated 10.02.2001 (Ext.1), the

defendant had agreed for the sale of the premises described in Schedule-1 of the said Agreement to the respondent at a sale consideration of

Rs.8,65,000/-, but it is a way of a separate money receipt dated 10.02.2001 (Ext.1(i)] that a sum of Rs. 2,00,000/- was paid to the defendant, which

was acknowledged by issuing a money receipt for a sum of Rs.2,00,000/-.

However, the Deed of Agreement dated 12.07.2000 (Ext.2) appears to be highly questionable. Firstly, although the said document is said to be a

Deed of Agreement, it is unilaterally signed only by the appellant herein and there is no signature of the respondent. In the absence of signature by the

respondent, the said document cannot be said to be an agreement. Secondly, the stamp paper is found to have been purchased/ issued on 11.07.2000,

as per the endorsement made in its back page. In the front page of Ext.2, there are 2 (two) signatures of the appellant, and both signatures contain the

dated of 12.07.2000. Therefore, when the principal Agreement (Ext.1) was executed on 10.02.2001, there is no way to believe that the appellant

would have acknowledged on 12.07.2000, the receipt of part payment of Rs.1,00,000/- on 23.03.2001, Rs.1,00,000 on 24.08.2001 and Rs.4,65,000/-on

22.12.2003, because as stated herein before, the said document contains the date of signature as 12.07.2000. Thirdly, the date of Agreement (Ext.2) is

shown to be typed as 22nd day of December 2003. On the face of the said document, it appears to be a manipulated document because immediately

below the signature of the appellant on Ext.2, bears the date of 12.07.2000. It is unbelievable that when an agreement is purported to have been made

on 22.12.2003, it would be signed by the respondent by giving a date of 12.07.2000 and that the respondent would accept such an valuable document

showing a receipt of Rs.6,65,000/- from him with a signature of the appellant dated 12.07.2000. Therefore, for the above discussions on the 3 (three)

aforesaid reasons, the explanation given by the learned counsel for the appellant, seems to be a plausible and probable explanation.

It is seen that notwithstanding the previous orders passed by the learned trial Court on 25.01.2007, the learned Trial Court has recorded in the

order sheet that the learned lawyer for the defendant vide petition No.176/2 again prayed for time for filing of written statement and the said prayer

was allowed, provided that the written statement was made within stipulated time. The next date of the suit was fixed on 02.03.2007 for written

statement and within a bracket, it was mentioned that the “written statement be made within timeâ€. However, sufficiently before the next date

fixed, on 17.02.2007, the appellant herein had submitted his written statement. On the next date fixed i.e. on 02.03.2007, the learned trial Court has

recorded in the order sheet that the written statement was filed on 17.02.2007 which was put up today (i.e. 02.03.2007). Therefore, when the learned

trial Court had fixed the next date for filing of written statement on 02.03.2007, directing that the written statement to be filed on time, and the said

written statement, which was filed before time on 17.02.2007, could not have been rejected so as to proceed ex-parte against the appellant. Therefore,

this Court is of the view that the order dated 25.06.2007, by which the written statement filed by the appellant was rejected is not sustainable either on

facts or in law.

Therefore, having disbelieved the contents of the purported Agreement dated 22.12.2003 (Ext.2), this Court finds that the appellant herein appears

to have a prima-facie case for defending the suit and the resultant decree. In the grounds of appeal, the ex-parte proceeding against the appellant is

one of the grounds of challenge. Hence, by invoking the provision of Order XLI Rule 33 as well as section 105 CPC, this Court is inclined to set aside

the order dated 25.06.2007, passed by the learned Trial Court for not accepting the written statement of the appellant, as well as the order dated

28.08.2008 for not allowing the appellant to adduce evidence.

Resultantly, the point of determination is answered in the negative and in favor of the appellant, as such, the ex-parte judgment and decree dated

18.03.2009, passed by the learned Civil Judge No.1, Cachar, Silchar in T.S. 38/06 is hereby set aside. Consequently, the suit is remanded back to the

said learned Court for a fresh trial by directing the learned trial Court to accept the written statement filed by the appellant on 17.02.2007. As a result,

it would be open to both sides to adduce fresh evidence to prove their respective style. This order of remand is within the meaning of Order XLI Rule

23A CPC.

Accordingly, this appeal stands allowed by order in remand of the suit for fresh trial as indicated above.

There shall be no order as to cost all throughout.

Both the parties, who are duly represented by their learned counsels, shall appear before the Court of learned Civil Judge, Cachar, Silchar on

14.05.2018 without any notice for appearance, and by producing a certified copy of this order, shall seek further instructions from the said learned

Court.

Let the LCR be returned back.