K A LOUIZ Vs. A A AUGUSTIN

JUDGEMENT

(1.) This appeal is filed by the plaintiff in a suit for realisation of a sum of Rs.47,550.39 with future interest and cost. Plaintiff and defendant were the partners of a firm "Lions Knitting Industries". The firm had availed a loan from Canara Bank and the Bank filed O.S. 185/1978 on the file of the Sub Court, Kochi and obtained a decree on 22.11.1980 against the firm. It is stated that the plaintiff had mortgaged his property to the Bank and in execution of the decree the property was brought to sale and the plaintiff paid an amount of Rs.71,154.40 on 14.2.1985. There were earlier two payments of Rs.1000/- each and altogether the plaintiff paid Rs.73,154.50. According to the plaintiff, the plaintiff is entitled to recover half of the amount paid by him from the defendant who was the other partner of the firm. Though the plaintiff demanded the amount as per lawyer notice dated 24.5.1986, the defendant did not reply to the notice nor paid the amount. Hence the suit was filed for the relief as stated above.

(2.) The defendant filed a written statement contending that the mutual obligations between the partners ceased on 4.12.1982 and alleged payments if at all true was voluntary and hence it cannot bind the defendant. The suit having been brought after three years is barred by limitation. It is also stated in Para.5 of the written statement that he did not participate in the execution proceedings and he was not aware of any payment having been made by the plaintiff. Therefore, he denied and put the plaintiff to strict proof thereof.

(3.) In the Trial Court the plaintiff produced Exts.A1 to A3 and the defendant produced Ext.B1. The plaintiff was examined as PW 1 and the defendant did not get into the box. After the trial, the Trial Court has dismissed the suit finding that the plaintiff has not produced any evidence to show that he has made the payment to the bank. On the question of limitation, the Trial Court found that the suit was not barred by limitation.