R. SUBRAMANIAM Vs. DENA BANK

JUDGEMENT

(1.) This appeal is directed by the 3rd defendant against the judgment and decree dated 7.4.1984 of a learned single Judge of this Court in C.S. No. 4 of 1980, decreeing the suit against all the defendants except the 4th defendant. It is the case of the 3rd defendant that he was a partner of the 1st defendant firm till 31.10.1997 and then after his retirement, the 2nd defendant has become of the proprietor of the 1st defendant firm and arranged with defendants 5 to 7 as co -obligants with the 1st defendant to pay the dues to the plaintiff -bank on the express understanding that the 3rd defendant would be released. But, in the written statement, defendants 1 and 2 contended that the signatures of defendants 5 to 7 were obtained by the 1st defendant on various dates and were handed over to the plaintiff. The documents handed over to the plaintiff are the promissory notes executed by defendants 5 to 7. It is the specific case of the 3rd defendant that he retired from the 1st defendant firm and a release deed was executed between him and the 2nd defendant, and in pursuance to the agreement between them, a letter was sent on 15.11.1977 enclosing a copy of the release deed to the plaintiff and that the plaintiff has also sent a reply under Ex.P -49 acknowledging the receipt of the release deed and the letter dated 15.11.1997 but stating that the 3rd defendant cannot absolve himself of the liabilities of the partnership firm till the date of his alleged release. Ex.D -4 is the letter written by the 1st defendant to the plaintiff. In that letter, the 1st defendant has stated that it has no objection for the release of the 3rd defendant from all encumbrances, but would furnish further security if so required by the plaintiff. The said letter is marked as Ex.D -4. In another letter, he requested the plaintiff to release the 3rd defendant from all the liabilities as he has furnished substituted sureties. However, the plaintiff has not released the 3rd defendant but filed the suit against the 3rd defendant as well.

(2.) The learned single Judge, however, rejected the contention of the 3rd defendant and has passed a decree against all the defendants except the 4th defendant. Aggrieved by the said judgment and decree, the 3rd defendant has preferred the above appeal.

(3.) Mr. A.P.S. Kasturi Rangan, learned counsel for the appellant/3rd defendant, submitted that the plaintiff -bank after accepting the promissory notes executed by defendants 5 to 7, ought not to have filed the suit against the 3rd defendant and therefore, the decree passed by the learned single Judge against the 3rd defendant as well cannot at all be maintained. In support of his contention, he invited our attention to the evidence of P.W.1 in cross -examination.