Bank of Koothattukulam v. Itten Thomas — 1954 DIGILAW 14 (KER)

Judgment :- 1. Plaintiff is the appellant. Plaintiff is the Bank of Koothattukulam, a firm represented by its Managing Proprietor. The first defendant issued a cheque for Rs. 3,700/- on 8.10.1947 in favour of the second defendant to be drawn on the Moovattupuzha branch of the Palai Central Bank Limited on 14.10.1947. The second defendant endorsed the cheque on 8.10.1947 itself in favour of the plaintiff-bank and received Rs. 3,700/-. When the cheque was sent by the plaintiff-bank to the Moovattupuzha branch of the Palai Central Bank Limited it was returned dishonoured on the ground that the first defendant had countermanded payment. It is alleged that the first defendant countermanded payment after knowing that the plaintiff-bank had paid the amount to the second defendant. The suit is for the amount paid by the plaintiff-bank with interest at 12 per cent per annum. 2. Both the defendants contested the suit. The first defendant contended that he issued the cheque in favour of the second defendant on 4.10.1947 and not on 8.10.1947, that it was a post-dated cheque bearing the date 14.10.1947, that the second defendant made him understand that he had purchased a lorry for which he had to pay Rs. 3,000/-, that the second defendant wanted a cheque bearing date subsequent to 10.10.1947 since he undertook to deposit the amount in the bank in the name of the first defendant before that date, that the second defendant had agreed that if the amount was not deposited within that time the first defendant might countermand payment, that when he came to know that the second defendant did not deposit the amount as undertaken by him he asked the bank not to encash the cheque, that neither the second defendant nor the plaintiff-bank had any right to present the cheque on 8.10.1947, that he was not liable for the amount, and that no notice had been issued to him. The second defendant contended that the plaintiff-bank which was a firm was not registered under the Travancore Partnership Act, that the suit was therefore not maintainable, that when he endorsed the cheque in favour of the plaintiff-bank he was told that the money would be paid to him only on the maturity of the cheque, that he did not receive any amount from the plaintiff-bank, that no notice was issued to him, and that he was not liable for any amount. 3. 3. On the question whether the plaintiff-bank paid the sum of Rs. 3,700/- to the second defendant the court below found that the amount was paid. But the suit was dismissed on the ground that the plaintiff-bank was not registered under the Travancore Partnership Act and that the suit was therefore not maintainable under S.68(2) of that Act corresponding to S.69(2) of the Indian Partnership Act. The parties were directed to suffer their respective costs. 4. The only question to be decided in this appeal is whether the court below was right in dismissing the suit on the ground that the plaintiff-bank was not registered under the Partnership Act. It is not disputed that the plaintiff-bank is a firm coming within the purview of the Travancore Partnership Act, XII of 1115. S.68(2) of that Act provides: "No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm". The present suit is admittedly one coming within the ambit of the sub-section. One of the points that arise for consideration in deciding whether the suit is hit by the sub-section is whether the plaintiff-bank was registered before the suit was instituted. In paragraph 3 of the plaint it is alleged that the plaintiff-bank was one registered under the Partnership Act. But what really happened was that a statement as required by S.57(1) of the Travancore Partnership Act was sent to the Registrar of Joint Stock Companies along with the prescribed fee on 8.11.1947. The records relating to this were not filed by the plaintiff in the court below. They were, however produced in this court and were accepted in evidence. Ext. J is the postal receipt of registration of the statement sent by the Managing Proprietor of the plaintiff-bank on 8.11.1947 to the Registrar of Joint Stock Companies. Ext. K is the money order receipt for the sum of Rs. 3/- sent on the same date. Ext. L is the receipt dated 12.11.1947 relating to the sum of Rs. 3/- sent by money order. Ext. K is the money order receipt for the sum of Rs. 3/- sent on the same date. Ext. L is the receipt dated 12.11.1947 relating to the sum of Rs. 3/- sent by money order. These records show that the Managing Proprietor of the firm sent the statement prescribed by S.57(1) and the fee required for the registration of the firm, on 8.11.1947, and that they were received by the Registrar of Joint Stock Companies on 12.11.1947. Ext. H, which was produced in the court below, is the certificate of registration of the firm. It does not contain the date on which it was signed. Only the month and the year are given, i.e., Kumbhom 1123. The firm was entered in the Registrar as Firm No. 26/23. The entry could have been made only on 12.11.1947 or some day after that. It was, however, argued for the appellant that the sending of the statement prescribed by S. 57(1) along with the required fee amounted to registration of the firm and that, therefore, the plaintiff-firm must be deemed to have been registered on 8.11.1947. The suit was instituted on 10.11.1947. It was, therefore, argued that the suit is not hit by S.68(2) of the Travancore Partnership Act. S. 57(1) of the Act (S. 58(1) of the Indian Act) relating to the registration of firms reads thus: "57(1) The registration of a firm may be effected at any time by sending by post or delivering to the Registrar a statement in the prescribed form and accompanied by the prescribed fee, stating the firm name, the place or principal place of business of the firm, the names of any other places where the firm carries on business, the date when each partner joined the firm, the names in full and permanent addresses of the partners, and the duration of the firm. The statement shall be signed by all the partners, or by their agents specially authorised in this behalf" It was contended for the appellant, that according to the wording of the section, registration of a firm is effected by sending a statement to the Registrar in the prescribed form along with the prescribed fee and that the subsequent filing of the statement and the entry of the name of the firm in the Register of Firms are only ministerial acts done by the Registrar in pursuance to the registration. 5. 5. S. 58 of the Act (S. 59 of the Indian Act) relating to the filing of the statement and the entering of the name of the firm in the Register of Firms reads thus: "58. When the Registrar is satisfied that the provisions of S. 57 have been duly complied with, he shall record an entry of the statement in a register called the Register of firms, and shall file the statement". Reading Ss. 57 and 58 together we are inclined to take the view that a firm cannot be said to be registered when the statement prescribed by S.57(1) and the required fee are sent to the Registrar of Joint Stock Companies and that the registration of the firm is effected only when the entry of the statement is recorded in the Register of Firms and the statement is filed by the Registrar as provided in S. 58. The argument advanced by learned Counsel for the appellant was advanced in Firm Ram Prasad-Thakkur Prasad v. Firm Kamta Prasad-Sita Ram (A.I.R. 1935 Allahabad 898). In that case also the statement and the fee were sent to the Registrar two days before the suit was instituted. In repelling the argument Kondall, J. said: "If S. 58 stand alone, this argument might have some force; but S. 59 shows that registration amounts to more than what is said in S. 58. The Registrar, under S. 59, must be satisfied that the provisions of S. 58 have been duly complied with, and he must record an entry of the statement in his register". Reference was also made to Lindley on Partnership, 10th Edn. page 922, where the learned author says: "It is apprehended that registration is compete so soon as the prescribed statement has reached the Registrar; and that the filing of the statement and issue of the certificate are ministerial acts the omission of which would not deprive a limited partnership of the benefit of the Act". Even if it is possible to accept this view, in the present case the statement sent by the Managing Proprietor of the firm reached the Registrar only on 12.11.1947 i.e., two days after the suit was filed. It cannot therefore be held that the firm was registered before the suit was instituted. 6. Even if it is possible to accept this view, in the present case the statement sent by the Managing Proprietor of the firm reached the Registrar only on 12.11.1947 i.e., two days after the suit was filed. It cannot therefore be held that the firm was registered before the suit was instituted. 6. Again, S.68(2) (S.69(2) of the Indian Act) prescribes another condition also, i.e., "Persons suing are or have been shown in the Register of Firms as partners in the firm". This evidently means that when the suit is instituted the names of the persons suing must find a place in the Register of Firms as partners in the firm. This aspect of the question was also considered by Kondall, J. in Ram Prasad-Thakkur Prasad v. Kamta Prasad-Sita Ram (A.I.R. 1935 Allahabad 898). The learned judge said: "It is necessary therefore not only that the firm should be registered, but the person suing must be shown as a partner in the firm and it is admitted that on the date when the plaint was filed the second part of this condition had not been carried out". It follows from this that when the suit was instituted the plaintiff-firm was not registered and the name of the person suing was not in the Register of firms. 7. The second point for consideration is whether the registration of the firm during the pendency of the suit is sufficient compliance with S. 68(2). It was argued for the appellant that the court below ought to have treated the suit as one properly instituted on the date on which the firm was registered. Learned counsel relied on certain decisions in support of this position. One such is Varadarajulu v. Rajamanika (A.I.R. 1937 Madras 767). In that case the firm was registered during the pendency of the suit. Horwill, J. who decided the case observed: "It is a well established principle that the court can take notice of events that happen subsequent to the filing of the suit and that any irregularities or deficiencies in the cause of action that may exist on the date of the filing of the plaint can be overlooked if on some date subsequent to the filing of the plaint and before the suit comes up for trial those irregularities or deficiencies are rectified by the plaintiff or by processes of law". The learned judge further observed: "When the registration has been carried out, the requirements of the legislature are fulfilled and there is no reason in equity why from the moment of registration a suit previously filed should not be allowed to go on. This suit is not of course one in which the subsequent act of registration validated the plaint from the date of its being filed; for no suit was maintainable before the date of registration. The most that the plaintiff can ask for is that his plaint should be treated as a valid one from the date of registration". The same view was taken by Mittor, J. in Radhacharan v. Matilal (41 Calcutta W.N. 534). These two cases were cited with approval in Jakiuddin v. Vithoba (A.I.R. 1939 Nagpur 301). Although it was held in that case that the suit offended S.69 of the Indian Partnership Act, Gruer, J. who decided the case observed: "If registration had been done during the pendency of the suit it might, no doubt, have legally proceeded from that date unless there was a bar of limitation". 8. Another case relied on by learned counsel for the appellant is Nazir Ahamad v. People's Bank of Northern India Limited (A.I.R. 1942 Lahore 289 (F.B.). That was a case in which the plaintiff instituted the suit against a company in liquidation without obtaining the leave of the court under S. 171 of the Indian Companies Act, but obtained such leave during the pendency of the suit. The Full Bench held that the suit was not liable to be dismissed on the ground that the leave of the court was not obtained before the suit was instituted. The wording of S. 171 of the Companies Act is, however, different from that of S.68(2) of the Travancore Partnership Act. S.171 of the Companies Act runs as follows: "When a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the court, and subject to such terms as the court may impose". S.171 of the Companies Act runs as follows: "When a winding up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the court, and subject to such terms as the court may impose". The words used in S. 68(2) of the Travancore Partnership Act are "No suit shall be instituted in a court." In the circumstances, we do not think that the decision in Nazir Ahamad v. People's Bank of Northern India Limited (A.I.R. 1942 Lahore 289) can be regarded as an authority for the position that the registration of the firm during the pendency of the suit is sufficient compliance with the requirements of S.68(2) of the Travancore Partnership Act. It is true that Ramlall, J. one of the judges who took part in the decision of the Lahore case dealt with S.69(2) of the Indian Partnership Act in the course of the discussion and supported the view taken in Varadarajulu v. Rajamanika (A.I.R. 1937 Madras 767) and Radhacharan v. Matilal (41 Calcutta W.N. 534). The learned judge said: "It seems to me that even under the Partnership Act the better opinion is that as a matter of procedure the remedy which is available is withheld till a condition is complied with and that the grant of leave by the court is such a condition. The right to enforce a claim is granted by a decree and if the condition for the enforcement of that remedy is complied with before the grant of the decree, it makes no difference whether this condition is complied with before or after the institution of the suit so long as it is complied with before the decree is made". 9. A.I.R. 1937 Madras 767,41 Calcutta W.N. 534, and A.I.R. 1939 Nagpur 301 were considered in later decisions and were dissented from. The position now accepted by practically all the High Courts in India is that the registration of the firm is a condition precedent to the right to institute a suit of the nature mentioned in S.68(2) of the Travancore Partnership Act and that the defect of non-registration cannot be remedied by registration of the firm during the pendency of the suit. So far as the Madras High Court is concerned the leading case is Ponnuchami Goundar v. Muthusami Goundar (A.I.R. 1942 Madras 252). In that case Leach, C.J., discussed the question with reference to decided cases and held that "registration of the firm is a condition precedent to the right to institute the suit and the court has no jurisdiction to proceed with the trial when the condition precedent has not been fulfilled." Reliance was placed by the learned Chief Justice on the decision of the Privy Council in Bhagchand Dagdusa v. Secretary of State (51 Bombay 725). In that case the question for consideration was whether the provision contained in S. 80 of the Code of Civil Procedure was mandatory and whether a suit instituted without complying with that provision was maintainable. Their Lordships held that the provision was mandatory and that a suit instituted without complying with that provision was not maintainable. Following this decision, Leach, C.J. observed: "S. 80, Civil P.C. has very much in common with S. 69, Partnership Act. It says that no suit shall be instituted against the Secretary of State for India in Council, or against a Public Officer, for an act purporting to be done by him in his official capacity, until the expiration of two months next after notice in writing has been given. The Privy Council also observed that S. 80 imposes a statutory and unqualified obligation upon the court and S.69(2), Partnership Act, does the same". The learned Chief Justice also relied on the decision of the Madras High Court in Chouse Khan v. Balasubba Rowther (51 Mad. 833), and Mohideen Rowther v. Sahabdeen Sahib (A.I.R. 1937 Madras 667) which related to S.28(2) of the Provincial Insolvency Act. That section in prevents a suit being filed against an insolvent without the leave of the Insolvency Court. It was held in these cases that subsequent leave would not cure the initial defect and validate the institution of the suit. Reference was also made to Subramonia Mudaliar v. The Eat Asiatic Co. Ltd. (A.I.R. 1938 Madras 991), Ibrahim Sahib & Brother v. Curulinga Aiyar (A.I.R. 1938 Madras 185), and Girdharilal Son & Co. v. Kappini Gowder (A.I.R. 1938 Madras 668). Reference was also made to Subramonia Mudaliar v. The Eat Asiatic Co. Ltd. (A.I.R. 1938 Madras 991), Ibrahim Sahib & Brother v. Curulinga Aiyar (A.I.R. 1938 Madras 185), and Girdharilal Son & Co. v. Kappini Gowder (A.I.R. 1938 Madras 668). In the first two cases it was held that the registration of the firm after the institution of the suit would not cure the defect of non-registration before the institution of the suit. The same view was taken by Venkataramana Rao, J. in the third case, but the other two judges who took part in the decision did not express any opinion on the point. The decision of Horwill, J. in Varadarajalu Naidu v. Rajamanicka Mudaliar (A.I.R. 1937 Madras 767) was considered by the learned Chief Justice and was not followed. About that decision the learned Chief Justice observed: "Whatever may be the principle which applies to the rectification of irregularities and deficiencies in the cause of action we are of the opinion that it cannot be applied here. The conclusion of Horwill, J. that subsequent registration will put the suit on a proper basis received support, however, from the judgment of the Calcutta High Court in 41 Calcutta W.N. 534 and that of the Nagpur High Court in A.I.R. 1939 Nag. 301. These cases were decided by judges sitting alone. In the Calcutta case it was said that when registration had been effected the suit might be treated as though the plaint had been received and the suit instituted on the day following the day of registration. The Patna High Court expressed dissent from this opinion in 18 Patna 114 Firm Laduram Sagaramal v. Jumuna Prasad where Harries, C.J., observed that he knew of no provision of law which permits a court to treat the pliant as having been filed on a date subsequent to the date on which it was actually filed and we know of no such provision". Reference was also made to the decisions in Danmal Parshotamdas v. Baburan Chhotilal (58 Allahabad 495), Krishnan Lal Ram Lal v. Abdul Ghafer Khan (17 Lahore 375) and Chhagen Lai v. Firm Mangal Sain (A.I.R. 1938 Lahore 787). The learned Chief Justice concluded thus: "The great weight of authority is in favour of the opinion that registration will not put the suit on a proper basis and that the court's duty is to dismiss it. The learned Chief Justice concluded thus: "The great weight of authority is in favour of the opinion that registration will not put the suit on a proper basis and that the court's duty is to dismiss it. We consider that the majority opinion is correct. A suit is instituted when the plaint is filed in a court of competent jurisdiction. S. 69 says that a suit by a firm shall not be instituted until the firm has been registered. The registration of the firm is a condition precedent to the right to institute the suit and the court has no jurisdiction to proceed with the trial when the condition precedent has not been fulfilled". 10. So far as the Calcutta High Court is concerned, the decision of Mitter, J. in Radhacharan v. Matilal (41 Calcutta W.N. 534) was dissented from in Dwijendra Nath Singh v. Govinda Chandra (A.I.R. 1953 Calcutta 497) decided by a Division Bench of that court consisting of Das Gupta and Guha Ray, JJ. After referring to 41 Calcutta W.N. 534 and an unreported decision of that court in which a contrary view was taken, and the decisions of the other High Courts on the point, Das Gupta, J. agreed with the view that registration of the firm after the date of the suit would not cure the defect of non-registration before the date of suit. The learned judge observed: "When the legislature forbids the doing of an act it is not proper for a Court to allow the doing of that act by subterfuge. Sub-ss. (1) and (2) of S. 69 forbid the institution of a suit by or on behalf of an unregistered firm. With the policy underlying that legislation we are not concerned but we are bound to give effect to the fiat of the legislature. The only way we can do it is by dismissing the suit. Not to dismiss such a suit by reason of the fact of later registration is really to relieve the party who has not carried out the requirements of the law by means of a subterfuge. The only way we can do it is by dismissing the suit. Not to dismiss such a suit by reason of the fact of later registration is really to relieve the party who has not carried out the requirements of the law by means of a subterfuge. It might seem hard and at first sight pointless to drive a party to bring a fresh suit but if the law requires that, I do not see that we should be justified in helping him to avoid that position by interpreting the law to mean something which it does not say. If later registration would have been sufficient compliance with the law, it was for the legislature to say that the legislature did not say that but said on the contrary that no suit shall be instituted by or on behalf of a firm in certain matters unless the firm has been registered. It is the duty of the courts to carry out the law as it is and to resist the temptation of interpreting it to meet the hardship supposed or real of a particular case". 11. A.I.R. 1939 Nagpur 301, the other case relied on by the appellant, was considered by the Nagpur High Court in Abdul Karim v. Ram Das (A.I.R. 1951 Nagpur 159). Mudholkar, J. preferred to follow the decision of the Madras High Court in A.I.R. 1942 Madras 252. With regard to A.I.R. 1939 Nagpur 501, this is what the learned judge said: "A contrary view as to the effect of the registration of a firm subsequent to the suit was expressed by Gruer, J., in obiter in Jaikiuddin v. Vithobi 1939 N.L.J. 427; A.I.R. (26) 1939 Nagpur 301. But it was abandoned by him later in Kanchedilal v. Gaorishankar, Civil Revision No. 765 of 1938 D/- 10.7.1940. In Mahadeo v. Shah Vijaya Kumar Hiralal, Civil Revision No. 613 of 1949 D/- 20.4.1950. Deo, J., has come to the same conclusion as Gruer, J. in his second decision". The learned judge considered the decisions in A.I.R. 1937 Madras 767 and 41 Calcutta W.N. 534 and refused to follow them. Firm Mohanlal Ram Gopal v. Firm Udau Ram Sewa (A.I.R. 1936 Patna 140), Krishnanlal Ramlal v. Abdul Ghafur Khan (A.I.R. 1935 Lahore 893), and Danmel Parshothamdass v. Babu Ram Chotelal (A.I.R. 1936 Allahabad 3) were also cited with approval. 12. Firm Mohanlal Ram Gopal v. Firm Udau Ram Sewa (A.I.R. 1936 Patna 140), Krishnanlal Ramlal v. Abdul Ghafur Khan (A.I.R. 1935 Lahore 893), and Danmel Parshothamdass v. Babu Ram Chotelal (A.I.R. 1936 Allahabad 3) were also cited with approval. 12. A.I.R. 1942 Lahore 289 was distinguished by Falshaw and Kapur, JJ. in Firm Das Raj v. Firm Hiralal (A.I.R. 1952 Punjab 415). This is what Falshaw, J. remarked about the observation of Ramlall, J. in A.I.R. 1942 Lahore 289: "There is no doubt that at page 542 Ramlall, J. has on the strength of A.I.R. 1937 Mad. 767 and 41 Cal. W.N. 534 made certain observations which appear to indicate that in his view a suit filed by an unregistered partnership firm could be validated by registration of the firm pendente lite, but since a different matter was under consideration by the Full Bench those remarks must be regarded simply as obiter and they have not been endorsed by either of the other two learned judges who constituted the Bench. Beckett, J. delivered a separate judgment in which he did not consider the matter at all, but confined himself to S. 171 of the Companies Act and Tek Chand, J. merely said that he agreed with the answer proposed by his learned brothren. The weight of authority, and in fact all the reported cases on the point which deserve to be taken into consideration, are clearly to the effect that subsequent registration will not validate the suit, and with this view I am in respectful agreement". The same view was taken by the Punjab High Court in Puranmal v. Central Bank of India (A.I.R. 1953 Punjab 235) decided by Harnam Singh and Kapur, JJ.) In that case also A.I.R. 1942 Lahore 289 was distinguished and the observations of Ramlall, J. were considered as mere obiter. 13. The Bombay High Court considered the question in Prithvi Singh v. Hasan Alli (A.I.R. 1951 Bombay 6). 13. The Bombay High Court considered the question in Prithvi Singh v. Hasan Alli (A.I.R. 1951 Bombay 6). Bhagwati, J. who wrote the judgment in the case considered the decisions of the various High Courts on the question and came to the conclusion that S.69(2) of the Partnership Act (Indian) "bars the institution of a suit to enforce a right arising out of a contract unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm and a subsequent registration of the partnership firm cannot and does not cure the initial defect in the institution of the suit". The learned judge further observed: "A plain reading of the terms of S. 69(2) of the Act, without anything more, clearly shows that the institution of a suit to enforce a right arising from a contract is barred unless the Firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. No words could be clearer than these to prevent a suit being instituted by or on behalf of a firm unless the firm was registered, and it is really surprising to find even the few authorities that have been cited against this proposition". 14. The Patna High Court dealt with the question in Firm Laduram Sagarmal v. Jamuna Prasad Chowdhuri (A.I.R. 1939 Patna 239) already referred to. After referring to the decisions of the other High Courts on the question, Harries, C.J. observed at page 241: "It is therefore clear that the trend of authority is in favour of the respondents' contention in this case, viz., that a suit which is not maintainable by reason of non-compliance with S. 69, Partnership Act, cannot become maintainable at a later stage by reason of registration. In my view, subsequent registration cannot cure the initial defect. A plaint filed by an unregistered firm is in effect no plaint at all because S. 69 makes claims arising out of a contract unenforceable if the firm is unregistered at the date of the institution of the suit. An unregistered firm has no right to sue, and therefore the plaint filed by it has no legal effect. If at the time the plaint is filed the claim is bound to fail, I cannot see subsequent registration can improve the position". 15. An unregistered firm has no right to sue, and therefore the plaint filed by it has no legal effect. If at the time the plaint is filed the claim is bound to fail, I cannot see subsequent registration can improve the position". 15. In A.I.R. 1935 Allahabad 898, which was already referred to, the facts are similar to those of the present case. In that case also the statement prescribed by S.58 of the Indian Partnership Act was sent to the Registrar along with the required fee two days before the date of the institution of the suit and the name of the firm was entered in the Register of Firms during the pendency of the suit. Kondall, J. held that the suit was not maintainable. This view was confirmed by a Division Bench of the Allahabad High Court consisting of Sulaiman, C.J. and Bennet, J. in Danmal Parushothamdas v. Baburam Chhotalal (I.L.R. 58 Allahabad 495). 16. The Madhya Bharat High Court also has taken the same view in a recent decision of that Court viz., Nand Kishore v. Muheswari Milla Morena (A.I.R. 1953 Madhya Bharat 42). Chaturvedi, J. considered the decisions of the various High Courts on the question and held that the registration of the firm is a condition precedent to its right to institute a suit and that subsequent registration would not cure the defect. 17. Although this question has not directly arisen for consideration before the Travancore High Court, that Court also has expressed its opinion on the point in Ganapathy Chettiar v. Abdul Kani Rowther (1946 T.L.R. 260). The question that arose for consideration in that case was whether S.68(2) of the Travancore Partnership Act could be given retrospective operation. In the course of the discussion, Abraham, J. observed at page 273: "Under S. 68 of the Partnership Act the registration of a firm is a condition precedent to its right to institute a suit, and a court has no jurisdiction to proceed with the trial of the suit when the condition precedent has not been fulfilled. Registration of the firm subsequent to the date of the institution of suit cannot remedy the defect, and the court is bound to dismiss it - I.L.R. 1942 Madras 252, K.K.A. Ponnuchami Gounder v. Muthusami Gounder". Registration of the firm subsequent to the date of the institution of suit cannot remedy the defect, and the court is bound to dismiss it - I.L.R. 1942 Madras 252, K.K.A. Ponnuchami Gounder v. Muthusami Gounder". In Krishna Pillai v. Travancore National and Quilon Bank Ltd. (1943 T.L.R. 458), a Full Bench of the Travancore High Court interpreted S. 173 of the Travancore Companies Act, I of 1092, corresponding to S. 171 of the Indian Act, in the same manner as the Lahore High Court interpreted it in A.I.R. 1942 Lahore 289, that is, a suit instituted against a company in liquidation without the leave of court is not liable to be dismissed on that ground since the institution of the suit is not barred by the section but only the commencement of further proceedings. When discussing the question, Krishnaswami Iyer, C.J., pointed out the difference between the language used in S.173 of the Travancore Companies Act and that used in other enactments when the Legislature wanted to prohibit the institution of the suit unless a particular condition is satisfied. The learned Chief Justice said: "The legislature has used express language when such institution itself is prohibited and the legislature is well aware of such language. When the institution itself is prohibited ti would mean that the parties are disabled from presenting a suit and the court is disabled from receiving it, i.e., assuming jurisdiction over it. Such an instance of disability is found enacted in the following case where the words used are different " .................... . The learned Chief Justice then quoted S.65 of the Travancore Code of Civil Procedure in which the words used are: 'No suit shall be instituted against the Diwan of Travancore ' It will be seen from this that, according to the leaned Chief Justice, if the words used are 'no suit shall be instituted' it will amount to a prohibition of the institution of the suit, and the court will not have no jurisdiction to entertain the suit. 18. 18. The above review of the case law on the subject shows that the view held by practically all the High Courts in India is that the registration of the firm is a condition precedent to its right to institute a suit of the nature mentioned in S. 69(2) of the Indian Partnership Act and that registration after the institution of the suit cannot cure the defect of non-registration before the date of suit. It follows from this that the court below was right in dismissing the suit on the ground that the plaintiff-firm was not registered under the Travancore Partnership Act before the suit was instituted. 19. In this view of the case, it is not necessary to record a finding on the issues relating to the merits of the case. It is, therefore, unnecessary to consider the memorandum of objections filed on behalf of the first respondent. The findings of the court below on Issues Nos. 1, 2 and 5 are set aside and the questions raised in those issues are left open. Subject to this modification, the judgment and decree of the court below are confirmed and the appeal is dismissed. The memorandum of objections is also dismissed except to the extent mentioned above. In the circumstances of this case, we think it proper to direct the parties to bear their respective costs both here and in the court below, and we order accordingly. Dismissed.