Order In this first appeal, plaintiff has challenged the judgment and decree dated 25.9.2007 passed by the learned Civil Judge, Tinsukia in Money Suit No.22 of 2004 thereby dismissing the suit of the plaintiff in entirety. 2. Plaintiff M/S All India Road Transport Agency which is a partnership firm instituted the suit against Indian Oil Corporation Ltd. stating that on 19.3.2001 it received a letter from the defendant and in that letter the defendant alleged the plaintiff of having placed two trucks on 26.4.2000 for transportation of 30 Metric ton of paraffin wax for M/S Heena International. Subsequently, it was found that the demand draft produced by the party was forged and that the party was also fictitious. The defendant thereafter, required the plaintiff to produce the lorry or the driver of the vehicle for recovery of the amount. Plaintiff further stated that on 26.4.2000, a representative of M/S Heena International of Motihar (Bihar) approached plaintiff and their branch office at Tinsukia requesting for arranging transportation of 590 bags of paraffin wax weighing about 29.5 metric ton from Digboi to Muzzaffarpur in Bihar against payment of charge. The plaintiff agreed to the proposal for carrying paraffin wax from Digobi to Muzzarfarpur against agreed freight amount of Rs.41,300/- and received Rs.7000/- as advance. It was agreed between the parties that balance amount would be paid to M/S Heena International at the time of delivery of the goods to the driver of the vehicle. The plaintiff thereafter hired two trucks from lorry brokers M/S Assam South Road Lines and through them carried paraffin wax to its destination. The transaction came to an end upon safe delivery of the goods to M/S Heena International at the site desired by latter who accompanied the said trucks and balance amount of the freight was paid to the driver. However, upon receipt of the aforesaid letter dated 19.3.2001 from defendant on 27.3.2001, the defendant made an enquiry to know that one of the vehicles namely, AP-16/W-2077 had arrived at Tinsukia by then and so immediately by letter dated 29.3.2001 informed the defendant about the availability of the vehicle and furnished all details thereon. The letter was received by official of the defendant who did not take any step thereafter for apprehending the driver either through police or otherwise. The letter was received by official of the defendant who did not take any step thereafter for apprehending the driver either through police or otherwise. But after expiry of about ten months, the defendant again wrote a letter to the plaintiff on 22.12002 asking to identify the place of delivery along with name of the recipient in order to recover the amount from the party and thereby also threatened the plaintiff to debit the amount from the account of the plaintiff. The plaintiff, however, clarified his stand by letters dated 5.2.2002, 21.2.2002 and 26.2.2002. According to the plaintiff there was no privity between the plaintiff and the defendant in connection with transportation of the consignment in dispute and that plaintiff was a mere public carrier. According to the plaintiff, there was an agreement between the plaintiff and the defendant on 16.2.1999 for carrying goods of the defendant on the basis of request and payment of the defendant which expired on 15.2.2000. Thereafter, another agreement was entered into between the parties on 1.10.2000 which remains in force for one year. But the defendant wanted to punish the plaintiff for misdeed done by M/S Heena International which according to the plaintiff was unjust and unfair. Privity of contract if there be any was between M/S Heena International and the defendant and there was no contract with the plaintiff at all for purchase of the aforesaid amount of paraffin wax. The defendant did not make any correspondence with the plaintiff. Thereafter, the plaintiff discovered that on 28.5.2002 defendant had unilaterally deducted an amount of Rs.11,75,857/- from the pending account of the plaintiff allegedly on the ground ‘product loss recovery by road’. It was not mentioned anywhere that the deduction was made in respect of the misdeed by M/S Heena International. Thus, the action on the part of the defendant was illegal, arbitrary and unauthorized. Plaintiff, thereafter, submitted representation before the defendant on 3.7.2002 and 23.8.2003 by registered post asking for refund of the amount along with interest @ 18 % per annum, however, to no avail. Under such circumstance, plaintiff instituted the suit, inter-alia, for declaration that deduction of Rs.11,75,857/- by defendant was illegal and unauthorized and for the consequent recovery of the same amount from the defendant. 3. Upon receipt of the summon, defendant appeared and submitted written statement wherein the first point of challenge was on the point of maintainability. Under such circumstance, plaintiff instituted the suit, inter-alia, for declaration that deduction of Rs.11,75,857/- by defendant was illegal and unauthorized and for the consequent recovery of the same amount from the defendant. 3. Upon receipt of the summon, defendant appeared and submitted written statement wherein the first point of challenge was on the point of maintainability. In para-1 of the written statement defendant stated that the suit of the plaintiff is barred under Section 69 of the Indian Partnership Act, 1932. Defendant also raised objection as to defect of parties by pointing out that M/S Heena International is either a proper party or a necessary party and so the suit has become vitiated for non-impleading the same. Apart from that usual objection as to locus-standi of the deponent in signing the verification and affidavit etc. were also taken by plaintiff. On facts the defendant stated that plaintiff and some person representing themselves to be personnel of M/S Heena Internation presented documents including purchase order, authority letter and demand draft of Rs.9,95,000/-. Believing the said demand draft of the document to be authentic, defendant issued release order on 25.4.2000 for delivery of 29.5 Metric Ton of paraffin wax and handed over the same to the defendant on 26.4.2000 and the defendant representing itself to be an agent of M/S Heena International received the aforesaid paraffin wax consignment for further transmission to Motihari. The plaintiff was in possession of the release order issued in the name of M/S Heena International and a letter of authority from M/S Heena International on 26.4.2000 when it had approached the defendant office for the purpose of lifting the consignment. Such action on the part of the plaintiff was clearly indicative of the fact that plaintiff was very much privy to the transaction of the same. The defendant presented the demand draft to his bank, UBI, Digboi for payment which subsequently informed the defendant that demand draft was a forged one and was never issued by the issuing bank. Subsequent enquiry revealed that delivery order which have been furnished to the plaintiff was also not actually issued by the Chief Divisional Manager of the defendant at Patna and it was also a fabricated one. Under such circumstances, defendant lodged a complaint with the police at Digboi Police Station on 3.8.2000 leading to investigation into the case. Subsequent enquiry revealed that delivery order which have been furnished to the plaintiff was also not actually issued by the Chief Divisional Manager of the defendant at Patna and it was also a fabricated one. Under such circumstances, defendant lodged a complaint with the police at Digboi Police Station on 3.8.2000 leading to investigation into the case. Digboi Police Station registered the case No. 167 of 2000 under Section 409 of the IPC and the same was pending at that time. In the meantime, defendant approached the plaintiff to co-operate for the purpose of enquiry to find out the identity of the truck and the purchaser. But plaintiff was unable to furnish any document of the consignment to M/S Heena International at Motihari or at any other place. But data sheets produced by the plaintiff indicate that consignment was never delivered to Motihari but it was released at Muzaffarpur in Bihar. When a clarification was asked from the plaintiff, no convincing reply came back and so a letter was issued to the defendant formally on 19.3.2001 in this regard asking to produce the truck drivers so as to enable the defendant to take necessary action. The defendant replied to this letter on 29.3.2001 but did not furnish any detail as to the place of unloading of the consignment. Defendant, thereafter wrote another letter to the plaintiff on 22.1.2002 asking for the place of unloading the consignment and the plaintiff failed to produce the same and rather addressed letter on 5.2.2002, 21.2.2002 and 26.2.2002 denying its liability in this regard and stated that it had delivered the consignment in full. The plaintiff neither revealed the details of the delivery of the consignment nor had it furnished any documentary proof of having delivered the consignment to M/S Heena International and so the defendant became convinced that plaintiff was hand in glove with M/S Heena International or that M/S Heena International was itself non-existent The defendant supplied 29.5 metric ton of paraffin wax and handed it over to the plaintiff at Digboi for which a forged draft of Rs.9,95,000/- was handed over by the plaintiff. This is why the defendant adopted practice of adjusting consignment value in case of non-delivery or short delivery of the consignment etc. Adjustment was made from pending bills of the defendant for Rs.11,7000/-. This was done on 28.5.2002. This is why the defendant adopted practice of adjusting consignment value in case of non-delivery or short delivery of the consignment etc. Adjustment was made from pending bills of the defendant for Rs.11,7000/-. This was done on 28.5.2002. The defendant denied the statement made in the plaint in entirety and claimed that the suit be dismissed with cost. 4. Upon such rival contention of the parties, the learned trial court has framed as many as eight issues which are quoted below:- (i) Whether there is a cause of action for the suit? (ii) Whether the suit is barred by Section 69 of the Indian Partnership Act, 1932? (iii) Whether the suit is bad for non-joinder of M/S Heena International? (iv) Whether the plaintiff is an agen of M/S Heena International and their exist any contract between the plaintiff and the defendant regarding the consignment of paraffin was delivered to M/S Heena International by the defendant? (v) Whether there exist any contract between the plaintiff and defendant in respect of deduction of Rs.11,75,857.00 only? (vi) Whether the defendant is legally entitled to debit the amount of Rs.11,75,857.00 from the dues of plaintiff? (vii) Whether the plaintiff is entitled for any decree, as prayed for? (viii) to what reliefs, if any, parties are entitled ? 5. In course of trial plaintiff examined two witnesses and adduced some documents. Defendant also examined two witnesses and adduced some documents. Upon consideration of the materials placed by the parties on record, the learned trial court dismissed the suit in entirety holding that the suit was bad for non-impleading M/S Heena International and M/S Assam South Road Lines who are necessary parties in this suit. The learned trial court, however, held that the suit was not barred under Section 69 of the Indian Partnership Act, 1932. 6. Challenging the aforesaid judgment and decree passed by the trial court, it is the case of the plaintiff that there was no contract between the plaintiff and the defendant in regard to sale of 29.5 metric ton of paraffin wax. Contract was between M/S Heena International and the defendant and the defendant was not entitled to make any deduction from the pending bills of the plaintiff on other count when M/S Heena International is alleged to have committed some misconduct by placing forged demand draft and forged letter of authority. Contract was between M/S Heena International and the defendant and the defendant was not entitled to make any deduction from the pending bills of the plaintiff on other count when M/S Heena International is alleged to have committed some misconduct by placing forged demand draft and forged letter of authority. According to the plaintiff it is not the agent of M/S Heena International and so the action of the defendant in deducting amount from the pending bills of the plaintiff was unjust, unfair and illegal. The appellant further submits that damage or short delivery of the goods not having been proved the defendant committed illegality in making the deduction and so the suit is liable to be decreed. Coming to the question of defect of parties, it is the case of the appellant that M/S Heena International has got nothing to do with adjusting money from the pending bills of the plaintiff and so opinion of the learned trial court that M/S Heena International or M/S Assam South Road Lines are necessary party is incorrect. The suit, therefore, is liable to be decided on merit and the claim of the plaintiff is liable to be decreed. 7. I have heard Mr. S Banik, learned counsel for the appellant and Mr. SN Sharma, learned senior counsel assisted by Mr. K Kalita, for the respondent. I have perused the pleadings of the parties, deposition of the witnesses of both the sides and the documents adduced by them. 8. At the threshold, learned senior counsel appearing for the respondent raised the plea that apart from the ground mentioned in the impugned judgment and decree, the suit of the plaintiff could have been dismissed on the point of maintainability by holding that suit is barred under Section 69 of the Indian Partnership Act, 1932 and the finding arrived at by the trial court on this point is contrary to the fact and the law involved in this case. 9. Per Contra, Mr. S Banik, learned counsel for the appellant would argue that respondent is not entitled to raise this objection at the threshold inasmuch as respondent did not file any cross-objection in time or even subsequently as is required under the provision of Order XLI Rule 22 of the Code of Civil Procedure. 9. Per Contra, Mr. S Banik, learned counsel for the appellant would argue that respondent is not entitled to raise this objection at the threshold inasmuch as respondent did not file any cross-objection in time or even subsequently as is required under the provision of Order XLI Rule 22 of the Code of Civil Procedure. The opinion arrived at by the learned trial court that the suit of the plaintiff is not barred under Section 69 of the Indian Partnership Act, 1932, therefore, has attained finality and so the preliminary objection is liable to be rejected at the threshold. 10. I have heard the parties on the question of preliminary objection. Order XLI Rule 22 has been amended in the year 1976 to give an extra benefit to the respondent for challenging a part of the decree without preferring an appeal separately. Provision of Order XLI Rule 22 as it stand today is quoted below for ready reference: 22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been In his favour; and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one months from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow:- Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or In part, in favour of that respondent. (2) Form of objection and provisions applicable thereto—Such cross objection shall be in the form of the memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Omitted (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or Is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit, (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 11. Prior to 1976, Order XLI Rule 22 of the CPC empowered a respondent to support the decree any of the ground decided against him in the court below but take any cross objection to the decree which he could have taken by way of appeal. It was observed in the objection published in Gazette of India dated 8.4.1974 that Rule 22 gives two distinct rights of the respondent in an appeal. First is the right of upholding the decree of the court of first instance on any of the ground of which that court decided against him and the second right is that of taking any cross-objection to the decree which he might have taken up by way of appeal. In the first case, respondent support the decree and in the second case he attacks the decree. It was therefore, felt necessary to make some modification in the Rule so as to enable a person to support a decree on a ground decided against him. What was intended by legislature is that a respondent in the appeal may support the decree by ascertaining that the matter decided against him should have been decided in his favour. The amendment thus is only clarificatory in nature. By adding an explanation respondent has been empowered to file cross-objection in respect to finding adverse to him notwithstanding that ultimate decision is wholly or in part in his favour. 12. The amendment thus is only clarificatory in nature. By adding an explanation respondent has been empowered to file cross-objection in respect to finding adverse to him notwithstanding that ultimate decision is wholly or in part in his favour. 12. In the case of Ravinder Kumar Sharma vs. State of Assam reported in AIR 1999 SC 3571 , the Hon’ble Supreme Court has held that respondent defendant in an appeal can without filing cross-objection attack adverse finding upon which a decree in part has been passed against the respondent for the purpose of sustaining decree to the extent. The lower court had dismissed the suit against the defendant/respondent. The Supreme Court found that filing of cross-objection after 1976 amendment is purely optional and not mandatory. 13. On perusal of the Order XLI Rule 22 of the CPC, it would be clear that there are two parts in this provision. By the first part of the rule, respondent has been given liberty to support the decree on some other point other than the one relied on by the trial court. The provision does not show that for such support filing of any cross-objection is necessary. By the second part of the Rule, the respondent has been given liberty also to file a cross-objection in respect to the decree for which he could have appealed against and has not preferred any appeal. However, such a cross-objection has to be filed within a period of one month from the date of receipt of notice in the appeal. The question as to whether a respondent can support a decree on some other point other than the one(s) relied on by the trial court without filing cross-objection arose in a number of cases before different High Court as well as Hon’ble Supreme Court of the country. In the case of Nazir Ahmed vs. State Bank of Mysore reported in 2007(11) SCC 75 , the point has been dealt by the Hon’ble Supreme Court and it has been held that for the purpose of supporting a decree, filing of any cross-objection is not necessary. Cross-objection is necessary if only some relief is claimed by the respondent which has been denied by trial court. For ready reference, para-7 of the judgment is quoted below:- “7. Cross-objection is necessary if only some relief is claimed by the respondent which has been denied by trial court. For ready reference, para-7 of the judgment is quoted below:- “7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order XLI Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order II Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross- objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court”. 14. Since the objection raised by Mr. S Banik, learned counsel is no longer res-integra in view of the aforesaid judgment of the Hon’ble Supreme Court, preliminary objection raised by the respondent is taken up for consideration. 15. Mr. SN Sharna, learned senior counsel submits that admittedly plaintiff is a partnership firm and this is why an objection was taken in para-1 of the written statement claiming that the plaintiff not having furnished registration number and or registration certificate in regard to registration of the partnership, the suit is barred under Section 69 of the Indian Partnership Act, 1932. He drew attention of the opinion of the learned trial court in this regard. He drew attention of the opinion of the learned trial court in this regard. The trial court noticed that plaintiff adduced Exhbiti-2 which is a certificate given by Notary Public in regard to the date of partnership which indicates that on 9.5.1997, Exhibit-3 was issued by registrar of firm, West Bengal wherein it was written that Registrar of firm, West Bengal acknowledged receipt of under-mentioned documents and intimated that it has been filed/recorded and registered pursuant to Indian Partnership Act, 1932. There was a registration number written in handwriting but admittedly Exhibit-3 is not a registration certificate. The learned trial court drew conclusion from this document that plaintiff had applied for registration before the Registrar of Firms and Societies and that no registration certificate has been produced and exhibited. But having made these observation in the finding under Issue No.2, learned court thereafter held that the issue is decided in favour of the plaintiff and that the suit is not barred under Section 69 of the Partnership Act, 1932. According to Mr. Sharma, once the trial court noticed that no registration certificate has been produced and exhibited, it was incumbent on the part of the learned trial court to hold that the firm is not a registered one and consequently the suit filed by it is not maintainable. This not having been done finding in regard to issue No.2 is liable to be reversed and consequently suit is liable to be dismissed on this additional ground, Mr. Sharma argued. At this stage, Mr. S Banik, learned counsel for the appellant submitted that even if it is proved that the plaintiff is not registered firm, in that event Section 69(2) of the Indian Partnership Act would come to his rescue. To him no suit to enforce a right arising from a contract can be filed against a third party unless the firm is registered and that here in this case in the transaction of sale of paraffin wax, the defendant is a third party and so bar under Section 69 of the Act will not apply. Section 69 (1) and (2) of the 1932 is quoted below: “69. Section 69 (1) and (2) of the 1932 is quoted below: “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 suing is or has been shown in the Register of Firms as a partner in the firm. (2) 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.” Bars institution of a suit by any firm or any person alleged to have been a partner in firm unless the firm is registered and the person suing is or has been shown in the registrar of firm as partner in the firm. Clause (1) and (2) therefore states that no suit to enforce a right arising from a contract shall be instituted in any court against any third party by on or behalf of the firm unless the firm is registered. Now the question is if there is claim against a third party in that event unregistered partnership firm cannot file a suit. But here in this case admittedly plaintiff has a contract with the defendant for carrying its goods to various places. In its own showing plaintiff stated that there was a contract between the plaintiff and the defendant by agreement dated 16.2.1999 which expired on 15.2.2000. Thereafter another agreement was entered into between the parties on 1.10.2000 and the same remained in force for a period of one year. Under this agreement there was a clause that the defendant would be made entitled to make deduction from the pending bills of the plaintiff if there is any allegation of short delivery or non delivery. Rightly or wrongly, defendant made deduction from the pending bills of the defendant taking recourse to this contract. Under this agreement there was a clause that the defendant would be made entitled to make deduction from the pending bills of the plaintiff if there is any allegation of short delivery or non delivery. Rightly or wrongly, defendant made deduction from the pending bills of the defendant taking recourse to this contract. What is the case of plaintiff is that such deduction though permissible under the contract was wrongly done by defendant and that there was no short delivery or non delivery at all. The question as to whether deduction has been made rightly or wrongly is a different one which will form the merit of the case. For the purpose of deciding maintainability of the suit, court is to see as to whether there is a contract in between the plaintiff and the defendant. Admittedly in terms of the para-7 of the plaint there was a contract between plaintiff and the defendant and so defendant cannot get away from the mischief of section 69(2) of the Indian Partnership Act, 1932. Under the facts and circumstances of this case, there being a contract between the plaintiff and the defendant, the plaintiff was not entitled to institute the suit in the name of the partnership without the partnership being a registered one. Admittedly, on the basis of the finding of the learned trial court and the evidence led by the parties, the plaintiff failed to produce certificate of registration before the learned trial court. It is the finding of the trial court that certificate of registration of partnership has neither been produced nor exhibited. That is why the learned trial court arrived at the finding that plaintiff had applied for registration only but net result is that on the date of institution of the suit, plaintiff was not a registered partnership firm and so bar under Section 69 of the Indian Partnership Act, 1932 would very much apply in the present case. Having so found it is to be held that learned trial court committed error in deciding issue No.2 in favour of the plaintiff and against the defendant. Suit could have been decided with this very issue alone. The preliminary objection raised by the respondent in regard to issue No. 2 stands answered in favour of the respondent and against the plaintiff. 13. Suit could have been decided with this very issue alone. The preliminary objection raised by the respondent in regard to issue No. 2 stands answered in favour of the respondent and against the plaintiff. 13. Since the very suit of the plaintiff is found to be not maintainable, there is no point in entering into the merit of the appeal on any other count. Accordingly, appeal stands dismissed and decree of the dismissal of the suit stands upheld. 14. No order as to cost. Send down the records.