M.PUNDALIK RAO Vs. VIJAYAKUMAR GADGI & CO.

JUDGEMENT

(1.) This regular first appeal is filed by the plaintiff in O.S.No.91/2000, being aggrieved by the dismissal of suit by judgment and decree dated 28.06.2006, by the court of Addl. Civil Judge (Sr.Dn.), at Bidar.

(2.) For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court.

(3.) The appellant/plaintiff filed the suit seeking recovery of a sum of Rs.1,41,680/- together with interest and future interest at the rate of 18% per annum from the date of suit, till realization and for other equitable reliefs that he was entitled to be granted. According to the plaintiff, he is an Agent of Life Insurance Corporation of India, residing at Bidar. Defendant No.1 is a Partnership Firm and defendant No.2 is the Managing Partner of the firm. Defendant Nos.2 to 6 are also Partners of defendant No.1 firm. The firm is doing business of Commission Agency, at Gandhi Gunj, Bidar. The firm was in need of funds for development of business. Therefore, defendant No.2 in the capacity of Managing partner of defendant No.1 firm, approached the plaintiff for a hand loan for expansion of the business of the firm. Plaintiff agreed to advance the loan and accordingly, he advanced a sum of Rs.92,000/- to defendant No.1 - firm. The Managing Partner agreed to repay the said loan as early as possible. According to the plaintiff, he approached the Managing Partner many times for repayment of Rs.92,000/- but the Managing Partner i.e., defendant No.2 went on making false promises and thereby postponing repayment. At last, he issued a cheque bearing No.351241, for a sum of Rs.92,000/-, dated 22.07.1997, in favour of plaintiff, which was drawn on Canara Bank, Bidar Branch. Plaintiff presented the said cheque in his bank on the same day but as there was insufficient funds in the account of defendant No.1 firm, the cheque was dishonored and the same was intimated to the plaintiff. Plaintiff got issued legal notice to defendant No.2 as per the provisions of the Negotiable Instruments Act, 1881, (hereinafter referred to as the 'Act' for the sake of brevity). But, in spite of service of notice, defendant No.2 failed to repay the loan amount. So, the plaintiff filed a complaint under Sections 138, 141 and 142 of the Negotiable Instruments Act, 1881, against defendant No.2, which was pending before the Chief Judicial Magistrate, Bidar. At the time of filing of suit, according to the plaintiff, defendant No.2 was Managing Partner of defendant No.1 firm, borrowed loan from the plaintiff for improvement of business of the firm. That the defendants are jointly and severally liable to pay the loan. That as the loan amount has not been repaid, defendants are liable to pay interest at the rate of 18% per annum from the date of dishonor of cheque. Thus, the plaintiff is entitled to Rs.92,000/- being the principal amount and Rs.49,680/- being the interest at the rate of 18% per annum from 22.07.1997, aggregating to Rs.1,41,680/- with interest at the rate of 18% per annum. That as the said amount has not been repaid by the defendants, plaintiff filed the suit, seeking recovery of said amount.