@JUDGMENTTAG-ORDER
V.P. Tipnis, J.@mdashAs the point involved was short, at the time of the admission itself, we had fixed this matter for hearing.
2. The appeal impugns-the order dated 6th October 1997 passed by the learned Single Judge in Summons for Judgement No. 519 of 1996 in
Summary Suit No. 2693 of 1996. The suit was filed on the basis of dishonoured cheque issued by the defendant NO. 1 which is a firm dealing in
construction. The case of the plaintiff is that for the purposes of giving a flat, certain amounts were accepted by the defendant No. 3. The
defendant No. 3 who is a Partner of the defendant No. 1 firm also represented to be an estate agent. The cheque was issued in favour of the
defendant NO. 1 firm. The flat not having been made available, the amount was repaid by the defendant No. 3 by issuance of different cheques on
behalf of the defendant No. 1. Out of these cheques, one cheque was dishonoured and payment of other two cheques was stopped. Summons for
Judgement was taken out on the basis of the dishonoured cheque. Affidavits were filed on behalf of the defendants Nos. 2, 3 and 4. So far as the
defendant No. 3 is concerned, he has stated that the amounts repaid in cash have not been given credit and, therefore, the summary suit should not
be entertained. The defendants Nos. 2 and 4 raised defence by filing an affidavit to the effect that at the relevant time when the transaction took
place, they were not Partners of the firm inasmuch as they had retired long back by a document dated 31 -8-1987. The document was annexed to
the affidavit of the defendant No. 4. The learned Judge read the title of the document which reads as a document of partnership. However, the
learned Counsel who appeared before the learned Judge stated that it should be read as a document of retirement. The learned Judge held that
nothing has been brought on record by way of affidavits that the document of 1987 was, in fact, acted upon. The learned Judge also noted that the
names of the defendants Nos. 2 and 4 continued to be shown as Partners in the register of firm. The Counsel for the plaintiff has produced certified
extract from the register of firm issued in March 1997. No change has been indicated in the entries since 1986. The learned Judge held that
therefore, the plaintiff cannot be blamed and cannot be foisted with the knowledge of the internal agreement between the Partners inter se. A
person dealing with the firm would obviously be guided by the entries in the register of firm. The defence taken, according to the learned Judge,
appears to be an after-thought. Accordingly, the learned Judge granted conditional leave to defend the suit on depositing an amount of Rs. 1 lakh
within ten weeks from the date of the order. The learned Judge also passed consequential orders.
3. In this appeal, the learned Advocate for the appellant has urged that the learned Judge should have gone through the contents of the document.
Though the document is titled as ""Deed of Partnership"", it clearly shows that it is a deed of retirement. In fact, para 1, after the preliminaries are
mentioned, clearly shows that the appellant and one Anil Advani have gone out and retired from the said partnership firm known as ""Apollo
Construction'' with effect from 3rd August 1987 and the parties of the second and third part, viz., Manmohan Goyal and Rekha Goyal will be the
continuing Partners of the said firm, viz., Apollo Construction. The appellant filed affidavit categorically stating that himself and the 2nd defendant
have retired from the 1 st defendant firm as its Partners with effect from 3rd August 1987 and the said deed, though wrongly mentioned as Deed of
Partnership, is a deed of retirement, a copy of which was annexed to the affidavit.
4. The learned Counsel for the appellant contended that in view of the provisions of section 32 of the Indian Partnership Act and especially the
proviso to sub-section (3) of section 32, a retired Partner is not liable to any party who deals with the firm without knowing that he was a Partner.
5. The facts and circumstances of the case and the material on record prima facie show that the plaintiff had been dealing with the defendant No. 3
and the defendant No. 1 without knowledge that the appellant was a Partner. Whether the appellant had actually retired and whether he is liable or
not will have to be decided at the trial on evidence. However, one thing is clear that these facts certainly entitle the appellant to unconditional leave
to defend and he cannot be equated with the defendant No. 1 or the defendant No. 3. We must add that these are our prima facie observations as
we are considering only the issue of grant or otherwise of unconditional leave.
6. On the basis of material on record and in view of the provisions of section 32, sub-section (3) and the proviso thereof, we are of the view that
the appellant had made out a case for unconditional leave.
7. In the result, the appeal succeeds and we direct that insofar as the appellant (original defendant No. 4) is concerned, he is granted unconditional
leave to defend the suit. The appeal is allowed in the aforesaid terms. There shall be no order as to costs.
8. Appeal allowed.
