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2015 DIGILAW 540 (CAL)

Saikat Dey v. Dukhiram Paul

2015-07-01

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. : Leave is granted to the learned advocate-on-record of the appellant to remove the defect as notified by the Stamp Reporter, here and now. The plaintiff being a partner of the partnership firm being carried on under the name and style of “Amar Pure Oil Mill” filed a suit against his partners praying for declaration of his absolute right, title and interest in respect of the suit property. He claims that he is the managing partner of the said partnership firm and the other partners are all sleeping partners. The defendants filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the suit is barred under the provision of Section 69(2) of the Partnership Act, 1932 as partnership firm is not a registered firm. As a matter of fact, rejection of plaint was prayed for as per the provision contained in Section 69(2) of the Partnership Act. The Learned Trial Judge rejected the plaint by the impugned order holding, inter alia, that the suit is barred under the provision of Section 69(1) of the Partnership Act, 1932. The legality of the said order of rejection of plaint has been challenged by the plaintiff in this First Miscellaneous Appeal. The learned advocate appearing for the appellant submits that Section 69(2) of the Partnership Act, 1932 does not apply in the facts of the instant case as this is not a suit filed by a partner to enforce a right arising from a contract in any Court against the third party. He thus contends that since this is not a suit by a partner to enforce his claim against a third party, Section 69(2) of the Partnership Act has no application and as such, non-registration of the partnership cannot stand in the way in maintaining the said suit by the plaintiff. We find substance in such contention of the learned advocate of the appellant but at the same time we hold that the suit is barred under the provision of Section 69(1) of the Partnership Act inasmuch as for maintaining a suit by a partner against the partnership firm and/or other partners to enforce any right arising out of contract, registration of the partnership firm is a precondition for maintaining such suit. Hence, we do not find any illegality in the order impugned whereby the Learned Trial Judge held that the suit was barred under the provision of Section 69(1) of the Partnership Act. In our considered view, the Learned Trial Judge was justified in rejecting the plaint under the provision of Order 7 Rule 11(d) of the Code of Civil Procedure. We thus, do not find any justification to interfere with the impugned order. Accordingly, we decline to admit this appeal. We however, make it clear that this order will not preclude the plaintiff from presenting the fresh plaint in terms of the provision contained in Order 7 Rule 13 of the Code of Civil Procedure subject to limitation. The appeal is, thus, dismissed. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the application. The application being CAN 5520 of 2015 is thus, deemed to be disposed of.