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2019 DIGILAW 134 (AP)

Penki Aruna Kumari v. Sunkari Tirumala Rao

2019-07-17

T.RAJANI

body2019
ORDER : T. Rajani, J. 1. This civil revision petition is filed under Article 227 of the Constitution of India, assailing the order dated 7.7.2014, passed in OS No. 80 of 2012 on the file of the Court of District Judge, Vizianagaram, by virtue of which the lower Court decided the preliminary issue with regard to maintainability of the suit and held that the suit is maintainable. 2. Heard the Counsel for the petitioner-defendant and the Counsel for the respondents-plaintiffs. 3. The Counsel for petitioner submits that the suit is not maintainable for the reason that it is hit by Section 69(1) of the Indian Partnership Act, 1932 (for short, the Act). The issue involved is whether a partner of an unregistered firm cannot maintain a suit against the other partner. For the sake of convenience, Section 69(1) of the Act is extracted hereunder: Section 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 a behalf of any persons 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: Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of the firm or to realize the property of the firm. 4. The Counsel for the respondents-plaintiffs submits that the partnership business is not yet commenced, and in the written statement filed by the petitioner-defendant in the suit, it is categorically mentioned that the business was stopped in the year 2009. The Counsel for the petitioner, in answer to the said submission, draws the attention of this Court to the partnership agreement, wherein it is clearly mentioned that the plaintiff is offering partnership to the respondents as she was not able to carry on the business. The reason for closure of the business is immaterial since it is clearly mentioned in the agreement itself that the petitioner-defendant was not in a position to continue the Crusher and hence, she is offering partnership to the respondents. The reason for closure of the business is immaterial since it is clearly mentioned in the agreement itself that the petitioner-defendant was not in a position to continue the Crusher and hence, she is offering partnership to the respondents. Hence, it has to be understood from the agreement that knowing fully well that the Crusher was not in working condition by the date of the agreement, the respondents entered into the agreement. The judgment of the Lahore High Court in Bishen Narain v. Swaroop Narain, AIR 1938 Lah. 43, is to the effect that the fact that the actual business did not commence is immaterial, when the suit is filed by a member of the partnership against another member, and it held that the partnership deed has to be registered in order to maintain a suit against the other partner. This Court is persuaded by the said judgment, since, even looked at from the point of view of equities, the respondents do not deserve to be given any concession on the ground that the business of the partnership has not commenced, as was done by the lower Court. Once there is an agreement of partnership, unless it is registered, no suit can be maintained by the partners for enforcing any right accruing from such agreement. 5. In view of the above, this Court opines that the impugned order cannot be sustained. 6. Accordingly, the civil revision petition is allowed, setting aside the order dated 7.7.2014, passed in OS No. 80 of 2012 on the file of the Court of District Judge, Vizianagaram. Consequently, it is held that OS No. 80 of 2012 on the file of the Court of District Judge, Vizianagaram, is not maintainable. 7. As a sequel, the miscellaneous applications, if any pending, shall stand closed.