K LAKSHMINAIAYANA Vs. L V S PADDY

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal. The suit filed against the first defendant firm and also the partners, defendants 2 to 6, for recovery of Rs. 18,500/- for the goods supplied by the plaintiff. Defendants 2 to 6 are said to be the partners of the firm. Defendants 2 to 5 filed a separate written statement stating that the firm was dissolved with effect from 31-3-77 and that the suit transaction took place on 7-9-77 and 8-9-77 and hence they are not liable and they are not aware of the transaction also. The 6th defendant admitted the transaction but disputed the quantum and also pleaded that he will pay the amount in instalments. On this controversy the court below held that the 6th defendant alone is liable for the transaction, the dissolution took place as pleaded by the defendants and as the plaintiff is not aware that defendants 2 to 5 are the partners, it exonerated D-2 to D-5 and dismissed the suit with costs so far as they are concerned and decreed the suit as against D-1 and D-6. Against the said judgment and decree the present appeal is filed.

(2.) Learned counsel for the plaintiff contended that the decree so far it exonerated defendants 2 to 5 is unsustainable as the partners have registered the firm and there was no public notice as contemplated under Sec. 72 of the Indian Partnership Act, Act 9/32 (hereinafter called the Act) This is refuted by the learned counsel fqr the defendant stating that che proviso to Sec. 45 of the Act is attracted to the facts of the case as the plaintiff is not aware of the fact that D-2 to D-5 are partners of the first defendant firm, their retirement prior to the transaction in question would not give him a right to sue.

(3.) It is seen that the controversy depends upon the fact whether the proviso to Sec. 45 is attracted or not. It is necessary to look to Sec. 45 of the Act which reads as follows: