TOWN INVESTMENTS Vs. SUBRAMANIAN

JUDGEMENT

(1.) Against the decree and judgment in O. S. No. 56 of 1989 on the file of the Sub Court, Thrissur, this appeal is preferred by the plaintiff. The plaintiff is a firm registered under the Indian Partnership Act and signatory to the plaint, being a partner of the firm, is competent to sue on behalf of the firm. The defendants had borrowed a sum of Rs. 50,000/- from the plaintiff firm and had executed a demand promissory note in favour of the plaintiff firm on 7.2.1983 agreeing to repay the same with interest at 12% per annum. Out of the said amount, the defendants have repaid a sum of Rs. 12,500/- on 22.11.1984 and another sum of Rs. 500/- on 5.2.1986. The balance amount is due from the defendants. Despite of repealed demands the balance amount was not paid. Since an amount of Rs. 500/- was paid on 5.2.1986 by the defendants, and the same was endorsed on the back side of the demand promissory note, the suit is not barred by limitation. The suit is filed for recovery of a sum of Rs. 74,422/- with interest at 12% per annum.

(2.) The defendants filed written statement admitting the execution of Ext. A1 promissory note. But denies the allegation that he had repaid only an amount of Rs. 13,000/- towards the transaction. The first defendant paid an amount of Rs. 43,000/- out of the loan transaction. An amount of Rs. 30,000/- was paid in March 1984 in two occasions. All the payments made by the defendants had been effected through the second defendant, a partner of the plaintiff firm. No receipts have been given to the defendants towards repayment but the payments were credited in the account books of the plaintiff. The plaintiff may be directed to produce the account books maintained by the firm. On receipt of the notice, defendants contacted the plaintiff and therefore, he did not send any reply to the plaintiff's notice. The allegation that the firm is registered under the Indian Partnership Act is denied. The plaintiff cannot sue against the second defendant. The interest claimed is excessive.

(3.) The third defendant filed a separate written statement contending that the first defendant was made to believe that he had paid an amount of Rs. 33,000/- to the plaintiff. The loan was obtained for the purpose of the first defendant and the third defendant is only a surety. If the amount is not recoverable from the first defendant, then only the plaintiff is entitled to proceed against him.