P K KUNCHACHUMMA Vs. CHALAPURAM BANK LTD

JUDGEMENT

(1.) This is an appeal by defendants 2 and 4 to 7 against the decree and judgment of the learned Subordinate Judge of Kozhikode, passed against them in OS 98 of 1949.

(2.) The defendants 2 and 4 to 7 filed a joint written statement contesting the claim of the plaintiff. They denied that there was ever a partnership by name "P. Hyder Hajee Sons' nor were they partners of any such firm. Hyder Hajee, the husband of the 2nd defendant and the father of defendants 3 to 7 was having business of his own and he died in or about August 1942. Sometime before his death, the said Hyder Hajee took one of his sons, the 3rd defendant alone as a partner and both of them were trading under the name of 'P. Hyder Hajee Son'. After the death of Hyder Hajee, the 3rd defendant alone has been carrying on a trade in the said firm name and that none of these defendants had any right in the same. In or about September 1947, the said 3rd defendant and the plaintiff's agent got an agreement in English the contents of which they were not aware, and had them signed by these defendants. The 6th and 7th defendants were minors to the knowledge of the plaintiff and in spite of that they were also made to execute those documents. They allege collusion and fraud on the part of the 3rd defendant and the plaintiff to get them involved in a liability which was exclusively that of the 3rd defendant. It is only subsequently that they have come to know that in the agreements executed by them in favour of the plaintiff they have been described as merchants carrying on business in the name of 'Hyder Hajee and Sons' which is not true. Regarding another letter dated 30-9-1947 written by these defendants, along with the 3rd defendant, they allege it was again due to the manoeuvre of the plaintiff's agent and 3rd defendant. In the end, they contended that they have absolutely no liability to the plaintiff in any manner.

(3.) The 3rd defendant filed a separate written statement. He denied that defendants 2 to 7 ever constituted partnership or were carrying on business in the name of 'P. Hyder Hajee Sons'. According to him, he became a partner with his father about three years prior to his father's death and when he became such a partner, the business carried on by his father under the name of 'P. Hyder Hajee', was changed into 'P. Hyder Hajee and Son'. Subsequent to his father's death in about 1942 he has been carrying on his business absolutely by himself under the name of 'P. Hyder Hajee Son'. He admitted having had dealings with the plaintiff is proprietor of 'P. Hyder Hajee Son'. In or about September 1947, the Bank represented to him that it was necessary to get a written admission from his mother and brothers about his absolute right in his business and to have suitable documents executed by them. Believing the Bank's representations he signed the papers got ready by the Bank without reading them along with his mother and brothers. It is only now that he understood that the documents recited that there was a firm of 'Hyder Hajee Sons' carried on by himself in partnership along with the other defendants. Virtually, he attributed fraud to the Bank officials in getting ready those documents He admitted the execution of the two pronotes referred to in the plaint but stated that they represented his individual translation as proprietor of his own firm 'P. Hyder Hajee Son'. He also contended that there was no firm by the name of 'P. Hyder Hajee Sons' at any time in existence, nor was there such a partnership as alleged by the plaintiff. He also contended that there was some sort of adjustments between him and the plaintiff. On all these grounds the 3rd defendant also disputed his liability to the suit claim