MANU ENTERPRISES & ANR Vs. RAM PRATAP GOEL

JUDGEMENT

(1.) The admitted case of the litigating parties is that the respondent Ram Pratap Goel (the plaintiff) was carrying on business as the sole proprietor of the firm M/s.Rajit Textiles and was selling fabric. Manoj Kumar @ Manu who died on October 11, 2007 was carrying on business as the sole proprietor of the firm M/s.Manu Brothers and was purchasing fabric on credit from Ram Pratap Goel and had issued blank cheques duly signed by him, to be filled up by Ram Pratap Goel and presented for encashment on supply of fabric. It is the case of Ram Pratap Goel as pleaded in the plaint that after Manoj Kumar died (being murdered) the business was continued but with the changed name M/s.Manu Enterprises to defraud the creditors. Pleading further that when Manoj Kumar died he owed Rs. 20,22,492/- (Rupees Twenty Lacs Twenty Two Thousand Four Hundred and Ninety Two only) to him which liability was admitted by Kiran Khorwal and Jitender Kumar, the wife and brother of the deceased respectively, he pleaded in paragraph 5 of the plaint that Jitender Kumar (defendant No.2), Jamna Lal (defendant No.3) and Bhupesh and Ms.Bhavya were the brother, father, son and daughter of the deceased. Without explaining as to how the father and the brother of the deceased inherited the liability of the deceased; and in the teeth of the averment that with a dishonest intention the name of the firm was changed; admitting having received Rs. 2,00,000/- (Rupees Two Lacs only) after the death of the deceased, he prayed that a decree in sum of Rs. 18,22,492/- (Rupees Eighteen Lacs Twenty Two Thousand Four Hundred and Ninety Two only) was liable to be passed against the defendants. Claiming pre-suit interest @ 24% per annum and quantifying the same in sum of Rs. 5,27,970.17 (Rupees Five Lacs Twenty Seven Thousand Nine Hundred Seventy and Paisa Seventeen only), decree prayed for was in sum of Rs. 23,50,462.17 (Rupees Twenty Three Lacs Fifty Thousand Four Hundred Sixty Two and Paisa Seventeen only) together with pendente lite and future interest @ 24% per annum.

(2.) Though Bhupesh and Bhavya were stated to be minor and in the memo of parties were sued through their mother, no application was required to be filed under Order XXXII Rule 3 of the Code of Civil Procedure praying to the Court that the two minor defendants may be represented by their mother as their guardian. But, except noting said fact, we need not note the effect thereof because the impugned decree is only against Manu Enterprises represented through Kiran Khorwal, the wife of the deceased and Jitender Kumar, the brother of the deceased.

(3.) When the appeal came up for hearing learned counsel for the respondent conceded that no decree can be passed against defendant No.2, who is appellant No.2 in the appeal. Thus, on the basis of the said statement the impugned decree is set aside against appellant No.2 and the suit is dismissed qua him.