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2007 DIGILAW 696 (KAR)

MSPL LIMITED v. SB MINERALS

2007-10-26

D.V.SHYLENDRA KUMAR

body2007
ORDER This civil revision petition, under Section 115 of the Code of Civil Procedure filed by the defendant in OS No. 174 of 2003 pending on the file of the Addl. Civil Judge [Sr. Dn.] Hospet, is directed against the order dated 24.9.2007 passed by the learned trial Judge answering the preliminary issue which was framed as additional issue No.1 and which reads as under: “Whether the Defendant proves that, the suit of the plaintiff is not maintainable under the law and barred by law?” against the defendant and in favour of the plaintiff by holding that the suit of the plaintiff was maintainable for seeking the relief of permanent injunction against the defendant. 2. It is aggrieved by this order contending, inter alia, that the very suit filed by the plaintiff -firm represented by a partner whose name did not figure in the register of the Registrar of Firms, as a partner of the firm on the day when the suit was filed, the present revision petition on the premise that the suit was bad in law; that the suit by a person as a partner whose name did not figure as a partner of the firm as registered with the Registrar of firms is an ill laid suit, could not be entertained and cannot be proceeded in law and therefore the trial court should have held the answer against the plaintiff and should have dismissed the suit. 3. Sri. 3. Sri. Yoganarasimha, learned senior counsel appearing for the petitioner has vehemently urged that it is an admitted fact that the name of the person who laid the suit as a partner of the firm and who had signed the plaint as a partner did not figure on the date of filing of the suit i.e., as on 4.12.2003; that even in terms of the order of the learned trial Judge, the name of this partner was entered in the register of Registrar of firms as a partner only on 21.1.2004 and therefore the suit itself was defective; that the defect was a material defect going to the root of the matter and the learned trial Judge having answered this question against the defendant and not on a proper appreciation of the provisions of law, particularly the provisions of section 69(2) of the Indian Partnership Act, 1932 or the principle emanating from this Section and therefore has committed a material irregularity in passing the impugned order and the order calls for being revised within the scope of section 115 of the Code of Civil Procedure and for such purpose the present petition is filed. 4. I have perused the impugned order. The learned trial Judge while has noticed this argument, has found that the person who had signed on behalf of the firm which filed the suit was a partner of the firm on 18.3.2002 and that the suit was med on 4.12.2003, but the name or the partner who has signed on behalf of the firm was entered in the books of Registrar of firms as a partner of this firm only on 21.1.2004. 5. In such facts and circumstances, the learned trial Judge purporting to follow the decision of the Supreme Court in the case of M/s. Haldiram Bhujiawala & Another Vs. 5. In such facts and circumstances, the learned trial Judge purporting to follow the decision of the Supreme Court in the case of M/s. Haldiram Bhujiawala & Another Vs. M/s. Anand Kumar Deepak Kumar & Another reported in AIR 2000 SC 1287 has taken, the view that the suit being not based on any contract inter se between the plaintiff and the defendant and more one in the nature of enforcement of common law right as in the case of HaldiramA’s decision and as the Supreme Court had opined that for enforcing such common Jaw rights and statutory rights, there is no requirement of the firm being registered and even an unregistered firm can maintain a suit and suit was tenable and has therefore rejected the argument of the defendant. 6. Sri. Yoganarasimha, learned senior counsel appearing for the petitioner joining issue on this finding, submits that if the suit should have been laid down behalf of an unregistered firm, all partners should have joined and only one partner having signed even then suit was defective and therefore learned trial Judge has committed material irregularity not- withstanding the law as declared in Haldiram’s case. 7. The bar as contained in Section 69 of the Indian Partnership Act, 1932 which reads as under: “69. Effect of non-registration:- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person is or has been shown in the Register of Firms as a partner in the firm. (2) No suits 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 to have been shown in the Register of Firms as partners in the firm.” is basically in respect of suits which are med by partnership firm for the purpose of enforcing contracts against the defendants. In the present case, obviously it is not any enforcement of any contract as between the plaintiff and the defendant. In the present case, obviously it is not any enforcement of any contract as between the plaintiff and the defendant. If at all the plaintiff is alleging of some violation of some right in favour of the plaintiff. Whether there is such violation, it is a matter to be decided by the trial Court. But, even in terms of the provisions of Section 69 of the Act, the suit does not become bad as technically the partnership firm is one registered and the person who had signed on the date of filing of the suit was in fact a partner. The only deficiency was that the name of this partner did not figure in the register of firms as a partner of this firm. I am of the view such a defect if at an assuming that it is there, it is a mere procedural defect and not one constituting a material irregularity. 8. Even otherwise, I find that the order of the learned trial Judge holding that the suit is maintainable is fully justified both on law and on facts and therefore there is no need for interference of the impugned order. 9. Accordingly, the civil revision petition is dismissed.