TMI Blog2009 (4) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments Act,1881 alleged against them. The learned counsel for the applicant has taken me through the complaint, affidavit in lieu of examination in chief and other documents on record. he pointed out that there is enough material on record to show that M/s. Shah Enterprises had taken over the liability of M/s. Shah Agencies towards the applicant. Apart from the averments made in the complaint and in Affidavit in lieu of examination in chief, he invited my attention to the letter at Exh.P-5 dated 7th December 2000 sent by M/s. Shah Agency to the applicant. He submitted that the said letter clearly shows that the cheques were issued by the second respondent in discharge of the liability of M/s. Shah Agencies and that M/s. Shah Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in her capacity as a Proprietor of M/s. Shah Enterprises and to the third respondent in his capacity as the Power of Attorney holder of the Shah Enterprises. In paragraph 1 of the notice it is stated that the applicant is engaged in business of manufacturing and selling of synthetic Polymers/Resins and in response to orders from the 2nd respondent as proprietor of the Shah Agencies, the applicant has supplied goods from time to time to 2nd and third accused and in discharge of the liability towards the goods supplied and delivered, the cheques in disputes were issued. In the notice itself, the applicant has stated that the goods were sold and supplied to the proprietor of Shah Agencies. As stated earlier the notice is addressed to the propr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely upon the said running account when produced. 6. The cause title of the complaint and averments made in the paragraph 2 show that M/s Shah Enterprises is a the proprietary concern and Mrs.Bhavana Shah is described as the Proprietor of Shah Enterprises. In fact paragraph 2 of the affidavit in lieu of examination in chief the applicant has specifically asserted that accused no.1 conveyed to him that the accused No.1 was the proprietor of the Shah Enterprises. In paragraph 2 of the affidavit in lieu of examination in chief, the applicant has stated thus : 2. I say that accused had conveyed to me that accused no.1 was a Proprietor of Shah Enterprises. I say that however now it is understood that Shah Enterprises is a Partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the cheques were issued by the accused 2 as power of attorney holder of Shah Enterprises. Further improvement is made in paragraph 4 of the affidavit in lieu of examination in chief which reads thus : 4. I say that the accused along with Shah Agencies, represented by accused no.2 as the power of Attorney holder of both concerns were regular customers of my concern buying Synthetic Polyester Resin from time to time in the name of Shah Agencies. On orders received from the said Shah Agencies, I had sold, supplied and delivered Synthetic Polyester Resins to them. The said goods were received by the said Shah Agencies in good condition and without demur as their quality and quantity.... 8. Thus, in the complaint a case is made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his capacity of power of attorney of Shah Enterprises had agreed to take over and discharge the liability of M/s. Shah Agency. Reliance is placed by the applicant on the letter at Exh.P-5. Apart from the fact that the said letter is no evidence to show that the liability of Shah Agency was taken over by Shah Enterprises, as stated earlier, the said case was never made out by the applicant in the complaint. The said case made out in the complaint is that the liability is of M/s. Shah Enterprises and not of M/s. Shah Agencies. The letter dated of 7th December 2000 at Exh.P-5 is not signed by accused no. 1 who according to the applicant is the proprietor or partner of Shah Enterprises. The letter has been sent by accused No.2 in his capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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