JUDGMENT : The present appellant was the defendant in the Court of Civil Judge (Sr. Dn.) at Gangavathi (henceforth for brevity referred to as ‘the Court below’) against whom the present respondent as a plaintiff had instituted a suit in O.S.No.73/2003 for the recovery of money. The Court below by its judgment and decree dated 17.07.2006 decreed the suit for a sum of Rs.2,01,400/- with future interest at the rate of 18% p.a. from the date of filing of the suit till realization against the defendant therein. Being aggrieved by the said judgment and decree, the said defendant has preferred this appeal. 2. In its memorandum of appeal, the appellant has taken a contention that the Court below has failed to appreciate the provisions of Section 69(2) of the Indian Partnership Act, 1932 (henceforth for brevity referred to as ‘the Partnership Act’), according to which, no suit to enforce the right arisen from a contract shall be instituted by or on behalf of a firm against any third party, unless the firm is registered. In the instant case, the plaintiff is not a proprietorship concern and the partnership firm was an unregistered one, as such, the suit itself was not maintainable. Thus, the Court below ought to have dismissed the suit on the ground that the suit was filed by a wrong plaintiff. 3. In response to the notice, the respondent has appeared and is being represented by its counsel. The lower court records were called for and the same are placed before this Court. 4. Heard the arguments from both side. 5. The points that arise for my consideration are : (i) Whether the suit filed by the plaintiff in the Court below was maintainable in view of Section 69(2) of the Indian Partnership Act, 1932 ? (ii) Whether the judgment and decree passed by the Court below deserves any interference at the hands of this Court ? 6. For convenience, the parties would be referred with their respective ranks they were holding in the Court below. 7. The summary of the case of the plaintiff in the Court below was that the defendant which is a partnership firm had purchased the paddy on credit basis from the plaintiff and has made certain payments. As on 13.11.2000, the defendant was due to the plaintiff in a sum of Rs.2,00,000/- towards the said transaction. 7. The summary of the case of the plaintiff in the Court below was that the defendant which is a partnership firm had purchased the paddy on credit basis from the plaintiff and has made certain payments. As on 13.11.2000, the defendant was due to the plaintiff in a sum of Rs.2,00,000/- towards the said transaction. The defendant had executed an undertaking on 13.11.2000 acknowledging such debt and promised to pay the same by December, 2000. Thereafter, the defendant paid only a sum of Rs.1,00,000/- by way of demand draft on 22.08.2003 and the remaining balance of Rs.1,00,000/- was not at all paid by the defendant. Hence, the suit for recovery of money. The plaintiff had filed the suit describing itself as a proprietorship concern. 8. The defendant in its written statement filed in the Court below has taken a contention that the plaintiff establishment M/s. Subhalaxmi Venkateshwara Traders is not a proprietorship concern, but it is a partnership firm. The suit was hit by Section 69 of Indian Partnership Act. The defendant also contended that, in fact there was a balance of Rs.2,76,155/- and the said amount was discharged by way of cash and sale of plots worth Rs.3,00,000/- in favour of the plaintiff and its partners through a registered sale deed. It was further contended that in spite of the delayed payment there was a settlement and the defendant had agreed to pay a sum of Rs.1,00,000/- to the plaintiff on moral and business grounds to keep the honour of his family. According to the defendant, as on 01.04.2002, there was no amount due from it to the plaintiff, since he has already paid settled amount of Rs.1,00,000/-. Hence, he has prayed for dismissal of the suit. 9. Based on the pleadings of the parties, the Court below framed the following issues: (1) Whether the plaintiff proves that he is a licensed dealer in food grains ? (2) Whether the plaintiff proves that the defendant is due a sum of Rs.1,00,000/- as on 31.11.2000 ? (3) Whether the defendant proves that he has discharged entire amount due to the plaintiff? (4) Whether the plaintiff is entitled to interest @ 18% p.a. ? (5) What relief is plaintiff entitled ? (6) What decree or order ? (2) Whether the plaintiff proves that the defendant is due a sum of Rs.1,00,000/- as on 31.11.2000 ? (3) Whether the defendant proves that he has discharged entire amount due to the plaintiff? (4) Whether the plaintiff is entitled to interest @ 18% p.a. ? (5) What relief is plaintiff entitled ? (6) What decree or order ? Additional Issue : (1) Whether the suit of the plaintiff is not maintainable in view of Section 69 of the Indian Partnership Act ? 10. In its support, the plaintiff got examined one Sri. Venkatesh Shahapur said to be its proprietor as PW-1 and got marked the documents from Ex.P-1 to P-23(O). The defendant got examined its managing partner Sri Prakashchand S/o. D. Hemaraj as DW-1 and got marked the documents at Ex.D-1 to D-53. On behalf of the Court, Ex.C-1 & Ex.C-1(a) were marked. The Court below answered issue Nos.1, 2 & 4 in the affirmative, issue No.3 in the negative and decreed the suit against the defendant. 11. The main contention of the appellant in its memorandum of appeal as well the argument of the learned counsel for the appellant is that, the plaintiff has throughout been a partnership firm and that the alleged transaction was never with a proprietorship concern. Admittedly, the plaintiff firm was an un-registered firm, as such, the unregistered firm cannot maintain a suit in view of Section 69 of the Partnership Act. It is his further argument that in order to overcome the said lacuna of non-registration of the firm, the plaintiff has falsely projected itself as a proprietorship concern. 12. After drawing attention of this Court to the several of the exhibits marked in the suit, the learned counsel also relied upon a judgment of the Hon’ble Supreme Court of India reported in 1977 (1) SCC 379 and submitted that there is no evidence regarding the dissolution of the partnership firm and neither notice nor any paper publication for dissolution of firm was carried out. As such, the plaintiff is still date a partnership firm, but not a proprietorship concern. 13. Per-contra, the learned counsel for the respondent in his argument submitted that the plaintiff has described itself as a proprietorship concern in the plaint. A demand draft for a sum of Rs.1,00,000/- that was issued by the defendant was also to the plaintiff concern, as such, the suit was maintainable. 14. 13. Per-contra, the learned counsel for the respondent in his argument submitted that the plaintiff has described itself as a proprietorship concern in the plaint. A demand draft for a sum of Rs.1,00,000/- that was issued by the defendant was also to the plaintiff concern, as such, the suit was maintainable. 14. The business relationship between the parties to the litigation is not in dispute. In the pleadings itself, the parties more particularly the defendant has admitted about it purchasing paddy from M/s. Subhalaxmi Venkateshwara Traders. Apart from contending that it has already cleared the entire due by paying the suit amount of Rs.1,00,000/- to M/s. Subhalaxmi Venkateshwara Traders, the defendant has specifically contended that the entire transaction was with partnership firm, but not with any proprietorship concern, much less with the plaintiff firm in its description as a proprietorship entity. Even though the Court below based on the pleadings has framed an additional issue regarding maintainability of the suit in view of Section 69 of the Indian Partnership Act, but it has answered the said issue in favour of the plaintiff. Thus, the main question is regarding the maintainability of the suit in the Court below. 15. The plaintiff as PW-1 has produced and got marked one bill book from Ex.P-1 to P-15 and their photocopies at Ex.P-1a to P-15a. Those bills are shown to have been issued from M/s. Subhalaxmi Venkateshwara Traders. In the bottom of the bill where the person authorized to sign is required to sign in the name of the concern is once again reflected as “for M/s. Subhalaxmi Venkateshwara Traders”. Nowhere in the bill the nature of concern has been shown, as to whether it is a proprietorship concern or a partnership firm. These documents bear KST and CST number also. However, in the photocopies which were submitted to the Court for record purpose and marked at Ex.P1a to P15a, a rubber stamp has been affixed subsequently showing the concern as a proprietorship concern. The very same plaintiff has also got produced a copy of the legal notice dated 03.09.2003 said to have been issued by it and addressed to the defendant, wherein in the opening paragraph itself it is mentioned that the Advocate has issued the said notice upon the instruction of his client Sri Venkatesh Shahapur s/o Venkappa partner of M/s. Subhalaxmi Venkateshwara Traders. Thus, in the legal notice, the plaintiff has shown itself as a partnership firm. Incidentally, Sri Venkatesh Shahapur who is claiming to be the proprietor of the plaintiff concern in the suit himself is shown as partner of the said firm. Ex.P-20 is another document produced and relied upon by the plaintiff. It is a reply by the defendant to the legal notice issued to it as per Ex.P-17. Even in the reply also M/s. Subhalaxmi Venkateshwara Traders is shown as a partnership concern. In the said reply, the defendant has admitted that the said concern was selling paddy to it on credit basis. Thus, the defendant has admitted its transaction with M/s. Subhalaxmi Venkateshwara Traders which was till then shown as a partnership firm. Ex.P-21 and 22 which are khata book No.17 & 18 and Ex.P-23 is a Roj book No.17 produced by the plaintiff, nowhere in them shows the nature of the concern i.e., M/s. Subhalaxmi Venkateshwara Traders. Thus, the documents relied upon by the plaintiff in order to prove the alleged transaction with defendant and its claim against the defendant shows the concern M/s. Subhalaxmi Venkateshwara Traders a partnership firm. 16. Apart from the documents produced by the plaintiff which thus goes to show that the plaintiff concern was a partnership concern as on the date of transaction, the plaintiff as PW-1 in his evidence has also made certain statement which are worth to be noticed. Even though he has described himself as a proprietor of M/s. Subhalaxmi Venkateshwara Traders, but in his cross-examination he has stated that himself and Mr. M. Prakash Babu were the partners of the said concern. He has admitted certain suggestions and made certain statements in his cross-examination, which are reproduced here below: (i) At page 6 line 3:- “It is true to suggest that KST and CST were taken in the firm.” (ii) At page 6 lines 5 & 6:- “I have not produced any document in respect of dissolution of firm. No public notice was issued at that time. No public notice was issued at that time. Even now I am running the shop in the same name.” (iii) At page 6 lines 7 & 8:- “There was nor written agreement between my self and my partner to continue above business in my name” (iv) At page 6 line 9:- “It is true to suggest that I furnished information to my Advocate at the time of issuing legal notice. It is true to suggest that in Ex.P-17 it was mentioned that I was the partner of M/s. Subba Lakshmi Venkateshwar Tranders. It is true to suggest that I told my Advocate that I was a partner of above firm.” 17. The above statement/admissions on the part of the PW-1 clearly go to show that the bills produced by him at Ex.P-1 to P-15 in the name of M/s. Subhalaxmi Venkateshwara Traders bears KST and CST numbers in it and those registrations under KST and CST were taken in the name of the firm. As such, with the said KST, CST registration numbers, the transaction has been made and the Ex.P-1 to P-15, the said transaction can be in the name of the partnership firm, but not in the proprietorship name. Secondly, even according to the plaintiff after completion of the transaction and at the time of issuance of legal notice as per Ex.P-17 also, the plaintiff was a partnership firm, but not a proprietorship concern. According to the plaintiff himself, there is no record to evidence the dissolution of the firm and the constitution of proprietorship concern with the same name of the concern. All these go to show that the transaction of the defendant was with the partnership firm, but not with a proprietorship concern, though with the same name of M/s. Subhalaxmi Venkateshwara Traders. 18. The defendant in his evidence has categorically stated that the alleged transaction was with the partnership firm, but not with a proprietorship concern. He has got produced its ledger extract at Ex.D1 & D2 which though mentions certain transaction of the defendant establishment with M/s. Subhalaxmi Venkateshwara Traders, but it does not show the nature of the establishment of the plaintiff concern. However, the same defendant has produced a bill book at Ex.D-3 containing 56 bills and 2 separate bills at Ex.D-4. He has got produced its ledger extract at Ex.D1 & D2 which though mentions certain transaction of the defendant establishment with M/s. Subhalaxmi Venkateshwara Traders, but it does not show the nature of the establishment of the plaintiff concern. However, the same defendant has produced a bill book at Ex.D-3 containing 56 bills and 2 separate bills at Ex.D-4. All these bills which are the office copies of their originals shown to have been issued by M/s. Subhalaxmi Venkateshwara Traders showing the said concern as a partnership concern and duly signed by its partner. In this regard, certain statements were elicited in the cross-examination of PW-1, some of them are very material which are reproduced here below. (i) At page 7 line 8:- “It is true to suggest that we have issued bills as performa found in Ex.D-3 and Ex.D-4. It is true to suggest that all the bills disclosed only partner and not proprietor.” (ii) At page 7 line 12:- “It is true to suggest that Ex.D-5 contain Rubber stamp of Partnership firm with partner”. (iii) At page 7 last two lines in the bottom:- “We have informed over auditors and other authorities ours is a partnership firm. It is true to suggest that for all purposes it is partnership firm.” 19. In this manner the plaintiff himself has admitted that the bills which are large in numbers (56 bills at Ex.D-3) and two more bills at Ex.D-4 are all issued by M/s. Subhalaxmi Venkateshwara Traders showing the said concern as a partnership firm. Ex.D-5 which is a letter dated 18.12.2001 written by the plaintiff to the defendant in its letter head also bears rubber stamp along with the signature of the author of the letter showing the said concern as a partnership concern. The author of the letter has signed in his capacity as a partner. Moreover, as already observed above, even after arising dispute between the parties, in the legal notice issued by the plaintiff as per Ex.P-17 just before institution of the suit also, the plaintiff is shown as a partnership firm. The author of the letter has signed in his capacity as a partner. Moreover, as already observed above, even after arising dispute between the parties, in the legal notice issued by the plaintiff as per Ex.P-17 just before institution of the suit also, the plaintiff is shown as a partnership firm. Even though the learned counsel for the respondent in his argument submitted that as per the Ex.P-16 which is a letter issued by the respondent to the plaintiff, a sum of Rs.2,00,000/- is shown as having paid towards the purchase of paddy, but nowhere the said letter shows the address of the plaintiff as a proprietorship concern. As such, the said document would be of no help to the plaintiff to show that it is a proprietorship concern. In the result, except the plaintiff describing itself as a proprietorship concern in its plaint and PW-1 claiming to be its proprietor deposing in his examination-in-chief that it is a proprietorship concern, there are no other evidence either oral or documentary to substantiate and corroborate the contention of the plaintiff that it is a proprietorship concern. On the other hand, there is ample evidence, both oral and documentary in the form of admissions on the part of none else than the plaintiff himself as PW-1 in his cross-examination, the evidence of defendant as DW-1 and the documents marked in the evidence at Ex.P-17, Ex.P-20, Ex.D-3, Ex.D-4 and Ex.D-5 clearly go to establish that the plaintiff concern M/s. Subhalaxmi Venkateshwara Traders is a partnership firm, with which the defendant had a business transaction. 20. The plaintiff, who has admitted that the concern was a partnership firm, nowhere has stated either in its pleading or in the evidence as to when and how the said partnership firm converted into a proprietorship concern. He has not given any details as to the dissolution of the firm if any or conversion of the firm into a partnership concern or about taking over of the assets and liabilities of the business of the partnership firm by the alleged proprietorship concern, if any. In the case relied upon by the learned counsel for the appellant in Seth Loonkaran Sethiya and others Vs. Mr. In the case relied upon by the learned counsel for the appellant in Seth Loonkaran Sethiya and others Vs. Mr. Ivan E. John and others reported in (1977) 1 SCC 379 , our Hon’ble Supreme Court in a case falling under Section 69 of the Partnership Act, 1932 and in a similar set of question regarding the nature of the establishment, in its Judgment at para 19 was pleased to observe as below: “19. The alleged dissolution of the partnership between Seth Sugan Chand and the plaintiff not having been established, it can be safely presumed in view of the above circumstances that the partnership between them continued to subsist at lease upto July 20, 1948. We are accordingly of the opinion that the firm ‘Sethiya & Co.’ was not dissolved with effect from June 30, 1948, as claimed by the plaintiff, and that the agreement dated July 6, 1948, was entered into by the plaintiff with the defendants first set not as the sole surviving proprietor of Sethiiya & Co. but as a partner of the firm ‘Sethiya & Co.’.” 21. In the instant case also even though the plaintiff as PW-1 has stated that himself and Mr. M. Prakash Babu were partners, but nowhere he has stated as to when the said partnership firm dissolved or taken over by the present plaintiff as a sole proprietor. As such, it has to be presumed that, as on the date of institution of the suit in the trial Court also the plaintiff M/s. Subhalaxmi Venkateshwara Traders was continued to be a partnership firm, but not a proprietorship concern. 22. Since, it is held that the plaintiff has failed to prove that it was a proprietorship concern as at the time of institution of the original suit and that the plaintiff concern was to be taken as partnership firm, then the next point would be, whether the suit filed by the said firm is maintainable under Section 69 of the Partnership Act. 23. It is nobody’s case that even the plaintiff as a partnership firm also was a registered firm, nowhere the plaintiff has whispered either in his pleadings or in his evidence that the partnership firm was registered at any point of time. As such, it has to be necessarily taken that the plaintiff concern has throughout been an unregistered partnership firm. 24. As such, it has to be necessarily taken that the plaintiff concern has throughout been an unregistered partnership firm. 24. Section 69 (1) & (2) of the Indian Partnership Act, 1932 reads as 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 Registrar 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 have been shown in the Registrar of Firms as partners in the firm.” 25. Admittedly the present transaction between the parties to the litigation has arisen from a contract of business between them. The appellant herein who was the defendant in the trial Court was a third party as against the plaintiff firm. 26. In Seth Loonkaran Sethiya (supra) at para 21, the Hon’ble Apex Court was pleased to observe as below: “A bare glance at the section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of Section 69 of the Partnership Act.” 27. In the instant case also, all the suit transactions have taken place between parties only when M/s. Subhalaxmi Venkateshwara Traders was a partnership firm. The said firm was an un-registered partnership firm. The alleged proprietor of the plaintiff was one of the partners of the said un-registered firm. In the instant case also, all the suit transactions have taken place between parties only when M/s. Subhalaxmi Venkateshwara Traders was a partnership firm. The said firm was an un-registered partnership firm. The alleged proprietor of the plaintiff was one of the partners of the said un-registered firm. As such, in the absence of any proof that the plaintiff concern which is said to be a proprietorship concern has succeeded to the assets of the partnership firm, the plaintiff cannot bring the suit to enforce a right arising out of a contract falling within the ambit of Section 69 of the Act. As such, the suit filed by the plaintiff though has described it as proprietorship concern, but in view of the analyses made above, there is no proof to admit the plaintiff as a proprietorship concern, but the said concern having been an un-registered partnership firm cannot maintain a suit to enforce its right arising from a contract against the defendant who was the third party, unless the firm is registered. The Court below while answering additional issue No.1 has not at all considered all these aspects. In two sentences, it has arrived at the conclusion in answering the said additional issue in the negative by observing as below : “The plaintiff approached this Court as a sole proprietor of proprietorship concern. As such, no provision of Indian Partnership Act can be pressed into act in this suit.” 28. The evidence on record is also very clear that the plaintiff is running M/s. Subhalaxmi Venkateshwara Traders as proprietorship concern. Hence, this issue has to be framed. The said reasoning given by the Court below has to be called as erroneous in the light of the analysis made above. 29. Thus, the suit itself being not maintainable, the further aspect of the alleged liability of the defendant towards the plaintiff does not require to be considered and analysed. As such, the Judgment and decree passed by the Court below in decreeing the suit of the plaintiff deserves to be interfered with. 30. Accordingly, I proceed to pass the following order: ORDER The appeal is allowed. The Judgment and decree dated 17.07.2006 passed by the Civil Judge (Sr. Dn.) at Gangavathi in O.S.No.73/2003 is set aside. The suit of the plaintiff in O.S.No.73/2003 is dismissed. No order as to costs. Draw decree accordingly.