JUDGMENT V.K.Ahuja, J.(oral: This judgment shall dispose of both the appeal as well as cross objections. The regular second appeal under Section 100 of C.P.C was filed by the appellants/defendants against the judgment and decree passed by the learned District Judge Solan, dated 15.12.1999 vide which he had reversed the judgment and decree dated, 20.11.1998 passed by the learned Senior Sub Judge, Solan vide which he had dismissed the suit of the plaintiffs/respondents 2.Briefly stated, the facts of the case are that the respondents (hereinafter referred to as the plaintiffs) filed a suit for mandatory injunction as against the appellants (hereinafter referred to as the defendants). It was alleged by the plaintiffs that they are owners of Truck No.HPA-1 194, which was insured with the Insurance Company and was valid up to 29.1 .1986. The said vehicle was damaged in fire on 1.7.1985. The matter qua loss of the vehicle was brought to the notice of defendants No. 3 and 4 with the request to release the claim. However, the claim was not paid on one pretext or the other. The defendants on 21.1.1991 informed the plaintiffs that the claim of the plaintiffs for insurance was turned down on the ground that the case of accident was manipulated one . The suit for mandatory injunction was accordingly filed directing the defendants to pay the insurance amount of ‘.1 ,80,000/- and ‘ 15,000/- as damages/ interest from the date of accident till its payment. 3.Defendants took up the plea in regard to limitation that the suit was filed after one year of the date of repudiation of the claim and was therefore, not maintainable . The defendants also pleaded that the plaintiffs are not competent to file the suit and also challenged the locus-standi to file the suit. 4.On the pleadings of the parties, following issues were settled by the learned trial Court: 1.Whether the plaintiff is entitled to the amount as claimed ? OPP 2.Whether the suit is bad for mis-joinder of parties as alleged?OPD 3.Whether the suit is within limitation?OPD 4.Whether the suit is not maintainable in the present form?OPD 5.Whether the Civil Court has no jurisdiction to try the suit?OPD 6.Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged?OPD7.Whether the plaintiff has no cause of action to file the present suit as alleged?OPD 8.Relief. 5.The learned trial Court vide its impugned judgment, dismissed the suit of the plaintiffs. 6.On appeal, the findings of the learned trial Court was set- aside and the suit of the plaintiffs for recovery of ‘. 1,80,000/- being insurance amount and for damages for ‘. 15,000/- was decreed as against the defendants. Being aggrieved, the defendants have filed the present second appeal. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The appeal in question was admitted on substantial questions of law, which may be reproduced as under: 3. “ Whether sub-section (1) of Section: 69 of the Indian Partnership Act, 1932 covers a suit by a plaintiff suing in respect of a right vested in him or acquired by him as partner in a firm and for the applicability of this Section whether it is essential that a firm should be actually in existence on the date when suit is instituted?6.Whether no specific plea under Section : 69 of the Indian Partnership Act, 1932 was taken in the written statement but necessary facts for application of that section were brought to the notice of court, whether the court can admit evidence and refuse to entertain the suit as being barred under Section : 69 (2) of the Indian Partnership act ?7.Whether in this case to decide the plea that the Civil Suit filed by the plaintiffs was time barred in view of the disclaimer clause of policy, limitation was required to be counted from the date the amendment of plaint was allowed by the court? 9.The submissions made by learned counsel for the appellants were on three points. Firstly, that the repudiation of the claim took place on 21 .6.1991 and according to condition No.8 of the policy, the claim have to be filed within a period of 12 calendar months. “It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.” 10. Thus, it was submitted that since the claim was filed for recovery of the amount by way of a suit which was amended in the year 1995, it was time barred. 11. In support, learned counsel for the appellants had relied upon a decision of this Court in H.P. Horticultural Produce Marketing and Processing Corporation Limited Versus United India Insurance Company Limited and another, 1993 (3) Shim. L.C. 257.The observations made in para 9 and 13 to 15 are relevant and are being reproduced below:9.The case of the defendants is that in view of the condition laid down in Clause 6 (ii) of the insurance policy Ex. PW-1/1 the present suit is neither maintainable nor is within time. The said Clause reads: “In no case whatsoever shall the Company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is subject to pending action or arbitration. It being expressly agreed and declared that if the company shall disclaim liability for any claim hereunder the such claim shall not within 12 calendar months from the date of disclaimer have been made the subject matter of a suit in a Court of law then the claim shall for the purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”12.The above ratio laid down by the Full Bench of the Punjab High Court was approved and upheld by the Supreme Court in National Insurance Company Limited V. Sujir Ganesh Nayak and Company and another [ (1997) 4 SCC 366 ]. It was observed as under :- “ From the case law referred to above the legal position that emerges is that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed bylaw would be void as offending Section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed bylaw for the enforcement of his right has yet not expired. That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed bylaw for the enforcement of his right has yet not expired. But there could be agreements which do not seek to curtail the time for enforcement of the rights but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time barred. Such a Clause would fall outside the scope of Section 28 of the Contract Act. This, in brief, seems to be the settled legal position.” 14. “In the present case, admittedly the claim regarding loss and damage was lodged by the plaintiff with the defendants within 12 months of the happening of loss and damage. Such claim was repudiated by the defendants on 27.03.21992 vide letter Ex. PW-1/6. Therefore, in terms of Clause 6(ii) the plaintiff could have enforced the claim against the defendants by way of a suit within 12 months from such repudiation. In other words, the claim could have been enforced till 26.03.1993. The present suit was filed on 02.0.1995, for enforcement of the claim, that is, about two years after the expiry of the period prescribed under Clause 6 (ii). On the failure of the plaintiff to enforce the claim within the period stipulated in Clause 6(ii) of the Insurance Policy Ex. PW-1/1, the forfeiture clause came into play and the right of the plaintiff to enforce the claim stood extinguished.15.“The suit filed by the plaintiff, therefore, is neither maintainable nor the same can be said to be within time. On the failure of the plaintiff to enforce the claim within the period stipulated in Clause 6(ii) of the Insurance Policy Ex. PW-1/1, the forfeiture clause came into play and the right of the plaintiff to enforce the claim stood extinguished.15.“The suit filed by the plaintiff, therefore, is neither maintainable nor the same can be said to be within time. The two issues are decided in favour of the defendants.” 12.On the other hand the submissions made by learned counsel for the respondents were that the period of limitation was 3 years from the date of rejection of the claim and this clause will not be applicable to the facts of the case. 13.A perusal of the above judgment clearly shows that this clause was held to be valid by a Ld. Single Judge of this Court relying upon a decision of Hon’ble Supreme Court and, as such, the suit had to be filed for the recovery of the amount in question within a period of 12 months from the date of repudiation of the claim and, this claim having been preferred by way of amendment in 1995. The suit originally was filed in the year 1991 but the claim for the amount was made by way of amendment of the plaint in the year 1995. Therefore, the suit in question was time barred having been filed after 12 calendar months of repudiation of the claim by the defendants. Therefore, the findings to the contrary are set-aside. 14.Coming to the next question, the plea was raised by learned counsel for the appellants that the policy in question was in the name of two of the partners namely Gauri Shankar and Rattan Singh who were not shown partners in the Insurance Policy but were jointly shown as owners. Since as admitted by the plaintiffs, in cross examination, both the plaintiffs were partners and as the firm in question was not registered, there was a Bar under Section 69 of the Partnership Act to file the suit on behalf of the firm by one of the partners until and unless the firm was registered. In support, learned counsel for the appellants had relied upon two decisions. Reliance was placed upon the decision of this Court in Naranjan Chauhan Versus State of H.P., AIR 2009, the then decided by this Court while sitting in a Division Bench alongwith Justice Deepk Gupta. In support, learned counsel for the appellants had relied upon two decisions. Reliance was placed upon the decision of this Court in Naranjan Chauhan Versus State of H.P., AIR 2009, the then decided by this Court while sitting in a Division Bench alongwith Justice Deepk Gupta. The observations made in para 14 are relevant and are being reproduced as below: “We have gone through the written statement in detail filed by the defendants in which they have not specifically taken the plea under Section 69 of the Partnership Act, but it was specifically pleaded that the suit was not maintainable since the auction was held in the name and style of the company i.e the partnership firm and the internal arrangements stand nowhere for the departmental concern. It is true that Section 69 of the Partnership Act has not been specifically mentioned in the written statement, but it was specifically mentioned that the suit is not maintainable having been filed by one of the partners only and, therefore, it was bad for non- joinder of necessary parties, i.e the other partners. Once the plea was taken that the suit was not maintainable, the plaintiff was not taken by surprise and he was well aware of the question being raised. The question was a legal one and the provisions of Section 69, as held by the Apex Court (supra) are mandatory, it can not be said that this plea can not be considered until and unless it was specifically pleaded that there was a bar under Section 69 (1) of the Partnership Act. In our view, this plea being legal one can be raised at any stage and it cannot be said that the facts were not pleaded, though not specifically, but since the facts were pleaded, the decision of the Madras High Court is not applicable to the present facts and this plea is legal one can be considered by this Court.” 15. Reliance was also placed upon the decision in Oriental Fire & General Insurance Company Ltd. Vs. Reliance was also placed upon the decision in Oriental Fire & General Insurance Company Ltd. Vs. Union of India , AIR 1991 Patna 250, where a similar question arose before the lordship for consideration and on the facts of the case it was observed as under: “Where a suit was filed by a partnership firm to enforce liability on Insurance Company arising out of an insurance policy in respect of motor vehicle belonging to the firm, the suit would be barred by virtue of S. 69 (2) of the Partnership Act for non- registration of the firm. It cannot be said that since the liability arising out of an insurance policy is not a liability arising out of a contract simliciter, but also arose out of S.46 of Insurance Act and therefore, it also arose out of a statute, S 69(2) of the Partnership Act shall not be attracted. The terms of the contract as embodied in the Insurance Policy were subject to the Insurance Act, 1938. This will, however, not mean that the terms of the contract aforesaid will be completely effaced in view of Sec. 46 of the Insurance Act. It was only to the extent of any repugnancy that the provisions of Sec.46 of the Act will prevail. From this also, it would appear that in the instant case there was a contract between the parties as per the terms of the Insurance Policy which cannot be said to have been completely obliterated in view of Sec. 46 of the Insurance Act and the bar as imposed by Sec.69(2) of the Partnership Act will operate.” 16.On this point, it was submitted by learned counsel for the respondent that no specific plea was taken by the defendants in the written statement that the suit was not maintainable since it was filed by one of the partners and the firm in question was not registered. On this point, it was submitted that the question raised is legal one and the question of maintainability of the suit can be considered even if no specific plea was taken in the written statement in this regard. The reason being the plaintiffs themselves had admitted this fact in the cross examination that both the owners were partners, running a partnership firm which was not registered. The reason being the plaintiffs themselves had admitted this fact in the cross examination that both the owners were partners, running a partnership firm which was not registered. Therefore, the suit could not have been filed relying upon section 69 of the Partnership Act until and unless the firm was registered and this plea being legal one can be considered at this stage also. 17. Coming to the other point raised by learned counsel for the respondents that the learned trial Court had given its findings under issue No.3 in regard to limitation that the suit was within time which had not been specifically challenged by the appellants by filing cross objections before the first appellate Court and therefore, those findings have become final. I am unable to agree these submissions since once the appeal was filed by the plaintiffs against the judgment of the learned trial Court. The plea being legal one could have been raised during the course of arguments and the findings under issue No.3 could also have been challenged even though no specific cross objection was filed against the particular issue which was held to be as against the defendants. Therefore, this plea is liable to be repelled and is therefore, repelled being devoid of any force. This judgment shall also dispose of the cross objections filed by the plaintiffs claiming that the suit be decreed along with interest which was not awarded by the learned appellate Court . 18.In view of the above discussion, I accordingly hold that the appeal deserves to be allowed and the findings of learned first appellate Court are liable to be set-aside on all the points as discussed. However, parties are left to bear their own costs.