VAIYAPURI Vs. M SUNDARESAN

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree passed in O.S. No. 221 of 1979 by the Subordinate Judge, Karur on 14-8-1984.

(2.) The sixth defendant is the appellant herein.

(3.) The plaint averments are summarised as follows : The plaintiff, third defendant and one R.S. Vasantha were the partners of the business run by M/s. MS SV Traders. The business is to purchase and sell cottons, cotton wastes and yarn. Subsequently, Vasantha retired on 7-7-1978 and the plaintiff and the third defendant continued the business under the same name and style in the same place with same assets and liabilities. Thereafter, the third defendant also retired from the partnership relinquishing the rights under the said partnership in favour of the plaintiff. The third defendant is impleaded as a party to avoid any technical difficulty and no relief is prayed for against him. The first defendant purchased goods from the plaintiff on credit basis from 26-7-1978 and he has made various payments. The details of purchases and payments made by the first defendant are set out in the schedule. For all the purchases made by the first defendant, bills have been issued. In some of the receipts issued to the first defendant and signed by him, the amounts due as on date had been struck and he has acknowledged and accepted the same. After giving credit to the amounts paid by the first defendant, still a sum of Rs.65,680/- is due from the first defendant. The second defendant has executed a 'Surety Guarantor' letter on 21-8-1978 in which, the second defendant stood surety and guarantor for the amounts due by the first defendant. The second defendant has specifically undertaken and given guarantee for the amounts due by the first defendant. Thus, the second defendant is jointly and severally liable to pay the amounts due to the plaintiff as undertaken by him in the letter. When presssed for the amounts due by the first defendant on 27-9-1978, he had given six post-dated cheques drawn on Karur Vysya Bank in his favour by S.P.Srinivasan, proprietor, S.P. Srinivasan Agency duly endorsed in favour of the plaintiff. But, before the plaintiff could present even the first cheque for payment, which is dated 5-10-1978, the first defendant informed the plaintiff not to present those cheques for encashment as his customer has not arranged for funds. He undertook to pay the amounts due and subsequently he made payments, but has not made payments in full. The amounts covered by cheque runs to Rs.80,000/-. He made payments only to the tune of Rs.30,080/- and when the plaintiff insisted on payments and settlement of accounts, the first defendant informed him to present those cheques for payment. When the plaintiff presented the cheques for encashment, they have been dishonoured and returned with the endorsement "Please refer to drawer" on 5-3-1979. though the said S.P. Srinivasan is also liable for the amounts covered by the cheques, as the plaintiff learns he is also not in sound position, the plaintiff is not impleading him as defendant for recovery of amounts. The first defendant, as a principal debtor and the second defendant, as guarantor are both jointly and severally liable to pay the suit claim. The plaintiff prays for a decree against defendants 1 and 2 for a sum of Rs.71,780/- with subsequent interest and costs. The second defendant died on 9-9-1979 leaving behind him the defendants 4 to 13 as his heirs and they are in possession and enjoyment of all the assets of the deceased second defendant.