S.PRAKASH Vs. AISWARIYA FLOUR MILLS

JUDGEMENT

(1.) This Appeal Suit is directed against the judgment and decree, dtd. 10/8/2009 passed by the learned Additional District Judge, Fast Track Court No.II, Salem in O.S.No.50 of 2005, in and by which, the suit filed by the appellant / plaintiff for recovery of a sum of Rs.14,57,200.00, though was decreed against the respondents / defendants 1, 3 and 4, was dismissed against the second respondent / second defendant. Aggrieved by the dismissal of the suit against the second respondent /second defendant, the appellant / plaintiff has filed this Appeal Suit. Hereinafter, in this judgment, the parties are referred to as per their array in the suit.

(2.) The case of the plaintiff is that the first defendant is a partnership firm and the defendants 2 to 4 are its partners. The first defendant firm borrowed a sum of Rs.6,00,000.00 from the plaintiff on 20/3/1999 for its business purposes and in consideration thereof, a promissory note was executed by the third defendant as the partner of the first defendant firm along with the fourth defendant promising to repay the same on demand or order with interest at the rate of 24% per annum. However, no amount was repaid. On 8/3/2002, the first defendant firm, through the third defendant, had paid a sum of Rs.10,000.00 and an acknowledgment of liability was endorsed on the reverse of the promissory note. On 22/2/2022, the third defendant also deposited a sale deed, dtd. 2/3/2000 with the plaintiff with an intention to create an equitable mortgage as the security for the debt. However, the amount was not repaid inspite of the demand notice, dtd. 14/2/2005 and hence the suit.

(3.) In the suit, the first defendant firm and its partner, the third defendant and her husband, the fourth defendant, remained ex parte. Only the second defendant contested the suit by filing a written statement to the effect that there was no such borrowal on the part of the first defendant firm. The promissory note is belatedly concocted and the deposit of the title deed is denied. Due to his personal reasons, the second defendant retired from the first defendant firm on and from 1/4/2000. On the said date, the third defendant inducted her husband, the fourth defendant as a partner. Therefore, the second defendant, having retired from the partnership, is not liable to pay the amount.