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2018 DIGILAW 1679 (GAU)

Sanjay Kumar Jain v. Thir Narayan Singh

2018-11-30

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. O.P. Bhati, the learned advocate for the petitioners and Mr. N.N. Jha, the learned advocate for the respondents. 2. The respondents No. 1 to 4 are the plaintiffs in T.S. No. 212/2017, where the petitioners are arrayed as the defendants No. 1 and 2. The said suit was filed for ejection and for realization of arrear rent, pendente lite and future rent, etc. In the said suit, the petitioners had filed an application under Order VII Rule 11(d) read with section 151 CPC for rejection of plaint, being Misc. (J) Case No. 266/2018, inter-alia, on the ground that the respondent No. 4 herein was an unregistered partnership firm for which the suit was barred under Section 69(2) of the Partnership Act, 1932. The said application was rejected by the learned Court of Munsiff No. 1, Kamrup (M), Guwahati (hereinafter referred to as the "trial Court") by the order impugned herein. Hence, by filing this application under Article 227 of the Constitution of India, the petitioners have challenged the order dt. 14.09.2018, passed by the learned trial Court in Misc.(J) Case No. 266/18 arising in T.S. No. 212/2017. 3. With the consent of the learned advocates for both the sides, the matter was heard at length in the motion stage. 4. The learned counsel for the petitioners has submitted that the respondent No. 1 is the father of the respondents No. 2 and 3 and by virtue of a Lease Deed, they had leased out the suit premises consisting of shop room No. 3 in the lower ground floor of their building called T.N. Tower, located at AT Road, Guwahati to the petitioners w.e.f. 01.02.1998 and, as such, the relationship between the petitioners and the respondents No. 1 to 3 is that of tenant and landlord. It is submitted that under clause 1 and 2 of the said lease agreement, it was envisaged that in addition to paying monthly rent to the respondents No. 1, 2 and 3, the petitioners would also have to pay the monthly maintenance charges, as enhanced from time to time, to the respondent No. 4, i.e. M/s. Mehta Enterprises, the authorized agency of the landlords. Reference is made to the statements made in the plaint to show that the said arrangement was continuing for payment of monthly rent and separate monthly maintenance charges to the respondents, for which separate money receipts were issued by the respondent No. 4. 5. By referring to the unregistered partnership deed dated 01.04.1997 between the respondents No. 2 and 3, it is submitted that as the respondent No. 4 was an unregistered partnership firm, having joined the suit as plaintiff No. 4, the provisions of Section 69(2) of the Partnership Act, 1932 goy attracted, which provided that no suit shall lie for enforcement of any right of such partnership firm. It is further submitted that the respondents No. 1, 2 and 3 had statutory right under the provisions of the Assam Urban Areas Rent Control Act, 1972 to evict the petitioners, but such right was not available to the respondent No. 4, as the respondent No. 4 was admittedly an agent of the respondents No. 1, 2 and 3 to collect monthly maintenance charges for which the respondent No. 4 cannot enter into the shoes of the landlord of the petitioners. Moreover, in terms of the lease agreement, between the petitioners and the respondents No. 1, 2 and 3, the respondents No. 1, 2 and 3 had surrendered and/or abandoned their right to collect the monthly maintenance charges and, as such, when the respondent No. 4 was issuing separate money receipt for monthly maintenance charges, it would constitute a separate agreement. 6. Per contra, the learned advocate for the respondents has submitted that the right of the respondent No. 4 to collect maintenance charges had been flowing from the lease deed executed by the petitioners (tenants) and the respondents No. 1, 2 and 3 (landlord). Hence, it was not open for the petitioners to claim that issuance of a separate money receipt would constitute a separate agreement between the petitioners and the respondent No. 4. In this connection, it is further submitted that as the respondent No. 4 was named as agent of the respondents No. 1, 2 and 3 in the lease agreement itself, non-impleading of the said respondent No. 4 may leave scope for various sorts of interpretation to be made at the time of hearing of the suit. In this connection, it is further submitted that as the respondent No. 4 was named as agent of the respondents No. 1, 2 and 3 in the lease agreement itself, non-impleading of the said respondent No. 4 may leave scope for various sorts of interpretation to be made at the time of hearing of the suit. It is submitted that the right of the landlord to eject a tenant was a statutory right, which cannot be defeated by invoking Section 69(2) of the Partnership Act, 1932. It is also submitted that the liability of the petitioners to pay monthly maintenance charges arose from the lease agreement, where the recipient were the respondents No. 1, 2 and 3 and the respondent No. 4 was merely an agent of the respondents No. 1, 2 and 3, which would be apparent from the lease agreement itself. In support of his submissions, the learned advocate for the respondents has relied on the case of (i) Purushottam & Ann Vs. Shivraj Fine Art Litho Works & Ors., (2007) 15 SCC 58 ; and (ii) M/s. Haldiram Bhujiawala & Ann Vs. M/s. Anand Kumar Deepak Kumar & Anr., (2000) 3 SCC 250 . 7. In reply, the learned advocate for the petitioners had relied on the paragraphs 2 and 4 of the case of Purushottam & Anr. (supra) and paragraphs 3 and 8 of the case of M/s. Haldiram Bhujiawala (supra). 8. On a perusal of the impugned order dated 14.09.2018, it is seen that the learned trial Court had rejected the petition filed by the petitioners for rejection of plaint on the ground that there was no contract between the petitioners and the respondent No. 4 and that the suit was also not filed to enforce any right arising out of a contract, as such, it was held that the bar of Section 69(2) of the Partnership Act, 1932 did not apply. 9. It would be relevant to quote clause-1 and 2 of the lease deed w.e.f. 01.02.1998, which reads as follows:- "1. That the tenancy shall commence on and from the 1st February, 1998 and shall be according to English calendar. The tenant shall pay to the landlords a monthly rent of Rs. 9. It would be relevant to quote clause-1 and 2 of the lease deed w.e.f. 01.02.1998, which reads as follows:- "1. That the tenancy shall commence on and from the 1st February, 1998 and shall be according to English calendar. The tenant shall pay to the landlords a monthly rent of Rs. 487/- (Rupees four hundred Eighty seven) only per month payable on or before the seventh day of every current month, according to English Calendar, whether the same has been demanded or not. Rent will however be payable when the electricity is released by A.S.E.B. in the shop, or 1.2.1998 whichever is later. The tenant shall also pay to the Landlords authorized agency M/s. Mehta Enterprises, every month simultaneously. In like manner of the monthly rent, a sum of Rs. 200/- (Rupees two hundred only) as charges for maintenance. Separate printed receipts for the rent and maintenance charges shall be issued to the tenant in evidence of due discharge by him of his liability arising every month for occupation by him of the tenanted premises the tariff herein indicted of rent and maintenance charges shall be valid for a period of three years from the date of commencement of the tenancy. 2. That on the expiry of the first three years from the date of commencement of the Tenancy the rent and maintenance charges shall be increased by 15% and thereafter the rate of enhancement shall be 10% payable every successive three years regularly for automatic renewal of the tenancy without execution of a fresh document at the and of each lease period." 10. Thus, there is no doubt that the said lease deed envisages that the landlord i.e. the respondents No. 1, 2 and 3 are entitled to monthly maintenance and in that connection it was agreed by and between the petitioners and the respondents No. 1, 2 and 3 that the monthly maintenance would be collected by the respondent No. 4 herein, the authorized agents of the landlord. Thus, this Court is unable to accept that a mere issuance of separate money receipt by the respondent No. 4 on collection of monthly maintenance money would, as envisaged by the lease deed would create any contract between the petitioner and the respondent No. 4, so as to disentitle the respondents No. 1, 2 and 3 to institute the suit for claiming their right to eject the petitioners or to claim rent and monthly maintenance charges from the petitioners. Hence, this Court is of the considered opinion that the bar under Section 69(2) of the Partnership Act, 1932 was not applicable in the present suit. 11. In this connection, this Court finds support from the two decisions of the Hon'ble Supreme Court of India, cited by the learned advocate for the respondents. The relevant paragraph 18 of the case of Purushottam (supra) and paragraph 28 of the case of M/s. Haldiram Bhujiawala (supra) are quoted be-low:- Purushottam (supra):- "18. In the instant case the contract was entered into with the respondent firm by the erstwhile proprietor of the concern namely Purushottam. The partnership firm came into existence later. The amount claimed in the suit were due to the proprietor Purushottam who carried on his proprietary business in the name and style of "Dinesh Paper Mart". When he entered into partnership with others, he contributed to the partnership by way of his contribution to the capital, all the assets and liabilities of his erstwhile proprietary concern. Thus, though the partnership firm, which was unregistered, became entitled to enforce the contractual obligation of the defendant firm which it owed to Purushottam, the contract was not one entered into by the unregistered firm with a third party, nor was it one entered into by the unregistered firm in the course of its business dealings with the defendants. So viewed, the bar of Section 69(2) cannot apply to the suit filed by the Plaintiff appellants." M/s. Haldiram Bhujiawala (supra):- "28. ...The suit is not for enforcement of any right arising out of a contract entered into by or on behalf of the unregistered firm with third parties in the course of the firm's business transactions. The suit is therefore, not bared by Section 69(2)." 12. ...The suit is not for enforcement of any right arising out of a contract entered into by or on behalf of the unregistered firm with third parties in the course of the firm's business transactions. The suit is therefore, not bared by Section 69(2)." 12. In view of the discussions above, this Court does not find any reason to disagree with the order dated 14.09.2018, impugned herein, as such, this application fails and the same is dismissed. The interim order passed earlier shall stand vacated. 13. The parties are left to bear their own cost. 14. The parties, who are duly represented by their respective advocates are directed to appear before the Court of learned Munsiff No. 1, Kamrup (M), Guwahati on 10.12.2018 without any further notice of appearance and seek further instructions from the said learned Court.