MURUGARAM TRANSPORT Vs. KAVERI TYRES

JUDGEMENT

(1.) This appeal has been preferred against the Judgment and Decree of the trial Judge viz., the learned Additional District Judge, Karaikal, dated 31.08.2001 made in O.S. No. 37 of 2000 on the file of the Court below. The defendant, who suffered the Decree for the recovery of a sum of Rs. 33,210/- with interest and costs, has filed the appeal.

(2.) The suit was filed by the respondent herein against Murugaram Transport, originally showing one Periyasamy be its Proprietor. It was contended in the plaint that Murugaram Transport regularly purchased tires and tubes from the respondent/plaintiff on credit basis and a sum of Rs. 33,210/- was due as on 25.12.1998; that the said Periyasamy representing Murugaram Transport confirmed the balance and acknowledged the debt in writing on 30.12.1999; that thereafter despite repeated request and service of a legal notice on 21.03.2000, the appellant concern viz., Murugaram Transport failed to discharge the said loan and that hence the respondent/plaintiff was forced to file the suit for recovery of the said sum with interest and costs. It was also contended therein that as per the trade practice, the respondent/plaintiff was entitled to recover an interest at the rate of 24% per annum for the outstanding amount. Thus, the respondent/plaintiff had prayed for a Decree directing the appellant/defendant to pay a sum of Rs. 44,500/- towards the principal and interest up to the date of plaint along with future interest at the rate of 24% per annum and also costs.

(3.) The suit was resisted by the appellant/defendant by filing a written statement, which was signed by the said Periyasamy. In the said written statement, besides contending that the suit was barred by the provisions of the Partnership Act and also by the law of limitation, it had been contended that the defendant concern was not properly described. According to the averments found in the said written statement, the defendant was a partnership firm and not a proprietary concern and hence the frame of the suit as if it was a proprietary concern was defective and hence liable to be dismissed.