A B PATIL Vs. ORISSA TRANSPORT SERVICE

JUDGEMENT

(1.) THIS Court ordered CMP No. 2125 of 2007 on 20. 6. 2008 and the dismissal order dated 21. 3. 2007 made in the second appeal was set aside and the second appeal was restored to file. The second appeal was heard and judgment was reserved on 20. 6. 2008.

(2.) SRI Agastya Sharma, learned counsel representing appellant had taken this Court through the substantial questions of law raised in the memorandum of grounds of second appeal and would point out that the appellate Court totally erred in reversing the well considered judgment of the trial Court. The learned Counsel also had taken this Court through the oral evidence of PW. 1, DWs. 1 and 2 and also the documentary evidence Exs. A. 1 to A. 3 and Exs. B. 1 to B. 5 and would maintain that in the facts and circumstances of the case when the Manager had issued Exs. A. 1 to a. 3, it may have to be taken that the amounts had been received on behalf of m/s. Orissa Transport Service and in fact the Court of first instance appreciated the oral and documentary evidence available on record and came to the correct conclusion. Whereas, the appellate Court, without appreciating the evidence available on record in proper perspective, had reversed the well considered judgment of the Court of the first instance and allowed the appeal dismissing the suit. The learned Counsel also would maintain that it is not as though the partners are available at Hyderabad. They are faraway and the Manager alone will be looking after all the affairs of the transport service at Hyderabad and the manager represents the firm as such and the acts of the Manager would be binding on the firm. The learned Counsel also had drawn the attention of this Court to Section 25 of the Indian Partnership Act and also section 2 (a) and 2 (b) of the said Act and would maintain that in the light of the said provisions, the decree of the Court of first instance to be restored and the findings recorded by the appellate Court to be disturbed by setting aside the decree and judgment made by the appellate Court dismissing the suit.

(3.) ON the contrary, Sri P. V. A. Padmanabham, learned Counsel representing respondents had taken this Court through the findings recorded by the appellate court and would maintain that the principal question to be decided is that whether the manager was authorized to enter into these transactions and in the absence of any authority, the acts of said Manager would be unauthorized and such acts will not be binding on the firm. In other words, the counsel would maintain that the firm cannot be made liable for such unauthorized acts of the Manager and if at all any receipts had been passed by the Manager even specifying the name of the firm, the Manager as such may be fastened with the liability and not the firm and even otherwise in the absence of the Manager, no relief as such can be granted and, hence, the appellate Court is well justified in reversing the decree and judgment made by the trial Court.