V.P. Muhammed v. Branch Manager, Catholic Syrian Bank Ltd. and New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927** **AS.No. 192 of 2003 ( ) -----------------------** **AGAINST THE JUDGMENT AND DECREE IN OS.810/1993 OF I ADDL.SUB COURT,ERNAKULAM DATED 19-10-1996** **APPELLANT/PLAINTIFF:** **--------------------** **V.P.MUHAMMED, AGED 52 YEARS, SON OF VALIYAKATHU VEETTIL PAREETHU, RESIDING AT 21/1936, VALIAKATHU HOUSE, P.O PALLURUTHY, EDAKOCHI VILLAGE, KOCHI TALUK.** **BY ADVS.SRI.A.N.KUTTAN** **SRI.C.CHANDRASEKHARAN** **RESPONDENTS/DEFENDANTS 1 & 2:** - **----------------------------** **1. THE BRANCH MANAGER, POWER OF ATTORNEY HOLDER, CATHOLIC SYRIAN BANK LTD., ERNAKULAM VILLAGE, KOVILVATTOM DESOM, KANAYANNUR TALUK,** **2. NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ASSISTANT MANAGER, WILLINGDOM ISLAND, MATTANCHERY VILLAGE, KOCHI TALUK.** **R1 BY ADV. SRI.MADHU RADHAKRISHNAN ADV. SRI.P.RADHAKRISHNAN R2 BY ADV. SRI.GEORGE K.VARGHESE ADV. SRI.JOSEPH A.VADAKEL** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17-08-2017, THE COURT ON 22.08.2017 DELIVERED THE FOLLOWING:** **vdv** ## **V.Chitambaresh & Sathish Ninan, JJ. ============================== A.S No.192 of 2003 ========================== Dated this the 22[nd] day of August, 2017** ## **JUDGMENT** ## **Sathish Ninan, J** The unsuccessful plaintiff in a suit for damages is the appellant. 2. The plaintiff along with defendants 3 to 5 were the partners of a firm “M/s Sam Industrial and Commercial Corporation”. The firm was engaged in the business in fishing. The firm owned a boat under the name “Sinbad”. For repairs of the boat, the plaintiff in his capacity as partner availed a loan of `15,000 from the first defendant Bank. The boat was hypothecated with the Bank and was insured with the second defendant insurance company. The boat capsized on 30.10.1988 on its transit from Kulachal in Tamil Nadu to Kochi. When the insurance amount was claimed, the second defendant insurance company A.S No.192/2003 2 informed that the policy was not renewed since the year 1988 for non-payment of premium and accordingly, the claim was declined. Alleging that the Bank committed default in payment of the premium the suit is filed for realization of insurance amount as compensation from the first defendant Bank. It was contended by first defendant that the frame of the suit is not proper and that the firm itself ought to have figured as the plaintiff. The alleged liability on the part of the Bank to pay the insurance premium was denied. The claim for damages was resisted. 3. The court below found that the suit is not maintainable in view of the Section 69(2) of the Indian Partnership Act since the suit is by an unregistered firm. As regards the liability of the Bank, it was held that though there was no written contract between the plaintiff and first defendant Bank regarding payment of the insurance premium, the A.S No.192/2003 3 first defendant Bank was negligent in not paying the premium. 4. Heard the learned counsel on either side. 5. As regards the finding of the court below that the suit is not maintainable in view of Section 69(2) of the Indian Partnership Act, it was contended by the learned counsel for the appellant/plaintiff, that it is the specific case of the plaintiff that though initially the business was being conducted by partnership firm which admittedly was unregistered, subsequently the other partners of the firm namely defendants 3 to 5 voluntarily retired from the firm. Therefore, according to the learned counsel, the suit is filed in his individual capacity and not for and on behalf of the partnership firm. However, on the materials, we find it otherwise. The plaint and the deposition of the plaintiff as PW1 would reveal that the boat in question was owned by an unregistered partnership, A.S No.192/2003 4 that for maintenance of the boat a loan was availed from the Bank. The firm being the owner of the boat was the competent person entitled to sue for lack of payment of insurance premium relating to the boat. The plaintiff could not in his individual capacity have sued for the same. Though it is contended by the plaintiff that the other partners of the firm had retired from the firm voluntarily, there is total absence of any material before the court evidencing the same. The contention of the plaintiff that the partnership firm does not survive, has not been substantiated. Therefore, it could only be taken that partnership firm continues and that the suit is on behalf of the firm. The apex court in **Seth Loonkaran Sethiya and Others v Mr.Ivan E.John and Others** ( **AIR 1977 SC 336)** held thus: “A bare glance at the section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in A.S No.192/2003 5 him or acquired by him under a contract which he entered into as a partner of an unregistered firm whether existing or dissolved, void. In other words, a partner of a erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of Section 69 of the Partnership Act.” 6. The right of the plaintiff to sue the Bank is claimed as emanating out of the loan agreement. Therefore, since the right to sue is claimed under a contract, the suit is not maintainable. 7. Even assuming that the suit would be maintainable, we find that the claim of the plaintiff could not be sustained on its merits. The contention of the plaintiff is that the boat capsized in transit. It is on that account that the claim for insurance was made. However, there is lack of evidence to prove the alleged incident. Though the plaintiff as PW1 would say that the matter was reported to the concerned police station, no A.S No.192/2003 6 evidence in the said regard has been produced to substantiate the same. Though the plaintiff relied on Ext A2 stated to be a telegram sent by an agent of the plaintiff, the person who is claimed to have sent that telegram has not been examined. Court below found that the evidence of PW2 who is an employee of the plaintiff cannot be accepted. No document was produced from the port authority regarding the alleged incident. The discrepancies in the evidence of PW2 regarding the sinking of the vessel was noted by the court below. It has also been found by the court below that the testimonies of PWs 1 and 2 differ in material aspects. Therefore, when the very incident relating to the loss of vessel is not proved, there is no question of proving or claiming the resultant damages. Therefore the present claim made against the first defendant Bank for damages could not be sustained. A.S No.192/2003 7 8. That apart Exts.B1 letter by the plaintiff would show that even according to the plaintiff the business had come to a stand still. In the light of Exts B2 and B3 letters, the evidence of the defence witnesses to the effect that the vessel was completely damaged, is liable to be accepted. There is no reason to disbelieve the genuiness of the said letters or its contents. As found by the court below, on facts, the first defendant Bank did not have any liability to make payment of the insurance premium, but the premium was being paid by the Bank in order to secure the security. Once the boat has become unseaworthy, there is no point in the Bank making further payments towards insurance premium. Therefore, the first defendant bank could not be found fault with for not continuing to remit the insurance premium since 1988. It is also to be noticed that as early as in the year 1981 the Bank had filed O.S 424 of 1981 for realization of the A.S No.192/2003 8 loan amount and that it was even in spite of the non payment of the loan amount due to the bank that the Bank was incurring expenditure to make payment of the insurance premium till 1988. The finding of the court below that the bank was negligent in not paying the insurance premium is not liable to be sustained. In the facts and circumstances of the case, we find that the bank did not have any liability to continue to make payment of the insurance premium. In the result, the appeal fails and is dismissed. No costs. ## **V.Chitambaresh, Judge** **Sathish Ninan, Judge** vdv //TRUE COPY// P.A TO JUDGE