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2025 DIGILAW 131 (RAJ)

Makrana Marble Centre, through Parnter Smt. Sadhna Indra Bhushan Sharma v. Vinod Kumar Sharma, S/o Shri Kishan Gopalji Sharma

2025-01-22

REKHA BORANA

body2025
Order : (REKHA BORANA, J.)_ 1. The present revision petitions arise out of the same order impugned and hence, were heard together and are being decided by this common order. 2. The present revision petitions have been preferred against the order impugned dated 28.02.2014 passed by the Additional District Judge, Parbatsar, District Nagaur in Civil Original Suit No.57/2012 whereby two applications under Order 7 Rule 11, CPC as preferred on behalf of defendant Nos.1 to 3 & defendant Nos.4 to 6 respectively, were dismissed. 3. The facts are that a suit for dissolution, rendition of accounts, recovery and permanent injunction was filed by plaintiff Vinod Kumar before the Court of Additional District Judge, Parbatsar. In the said suit two applications under Order 7 Rule 11, CPC were filed by defendant Nos.1 to 3 and defendant Nos.4 to 6 respectively. 4. The grounds raised by defendant Nos.1 to 3 in their applications was primarily that the Court at Parbatsar did not have the territorial jurisdiction to entertain the suit in question as the registered office of the partnership firm was at Rajkot. Further, no cause of action arose to the plaintiff at Parbatsar and hence, the Court at Parbatsar had no jurisdiction to entertain the suit in question. 5. Defendants No.4 to 6, while raising the above ground of territorial jurisdiction also raised an additional ground to the effect that the suit in question was barred by law in terms of Section 69 of the Indian Partnership Act, 1932 (hereinafter referred to as ‘the Act of 1932’). It was averred that the plaintiff was not a partner in defendant No.4-firm and hence, in terms of Section 69(1) of the Act of 1932, had no right to sue defendant No.4-firm and its partners. 6. The learned Trial Court proceeded on to reject both the applications with an observation that there was a specific clause in the partnership deed in question reflecting the administrative office of the firm in question to be at Parbatsar. The Court further observed that the partnership deed dated 01.04.1994 was an admitted document and hence, the specific clause of the said deed wherein the administrative office of the firm was mentioned to be at Parbatsar, would also be termed to be admitted. 7. The Court further observed that the partnership deed dated 01.04.1994 was an admitted document and hence, the specific clause of the said deed wherein the administrative office of the firm was mentioned to be at Parbatsar, would also be termed to be admitted. 7. The Court further observed that even otherwise, while deciding the application under Order VII Rule 11, CPC the Court is required only to consider the averments as made in the plaint and the documents as annexed with the plaint. As per the averments of the plaint, the firm had an administrative office at Parbatsar and even the income tax returns of the firm were filed at Parbatsar till the year 2014. The Court therefore observed that prima facie the plaint could not be rejected on the ground of lack of jurisdiction under Order VII Rule 11, CPC. 8. In the specific opinion of this Court, the finding as recorded by the learned Trial Court qua territorial jurisdiction is totally in consonance with the documents as annexed with the plaint as well as the law governing the issue. Clause 2 of the partnership deed dated 01.04.1994 read as under: 9. A bare perusal of the above clause reflects that it was agreed between the parties that the administrative office of the business of the firm would be at Parbatsar, District Nagaur. The effect and application of the above clause to the present suit in question would definitely be a subject matter for an issue to be framed and decided by the Court. Definitely, the plaint cannot be rejected on the count of lack of jurisdiction. 10. So far as judgment in Subodh Kumar Gupta V. Shrikant Gupta & Ors.: 1993 (2) SCC 1 as relied upon by learned counsel for petitioners is concerned, therein the averments made in plaint were ‘vague’ and nothing was placed on record to establish that branch office of partnership was functioning at Chandigarh, further no cause of action arose at Chandigarh. 11. Coming on to the ground as raised by defendant Nos.4 to 6 that the suit in question could not be laid by the plaintiff against defendant Nos.4 to 6, he not being a partner in defendant No.4- firm, this Court is of the clear opinion that the bar of Section 69(1) & (2) of the Act of 1932 would not apply to the present suit in question. 12. 12. Section 69 of the Act of 1932 reads as under : “ 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. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect— (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm; or (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909), or the Provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner. (4) This section shall not apply— (a) to firms or to partners in firms which have no place of business in [the territories to which this Act extends], or whose places of business in [the said territories] are situated in areas to which, by notification under [Section 56], the Chapter does not apply, or (b) to any suit or claim or set-off not exceeding one hundred rupees in value which, in the Presidency- towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.” 13. A bare perusal of the above provision reflects that as per Section 69(3), the bar of Section 69(1) & (2) would not apply to the suit wherein the enforcement of any right for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, is prayed for. The suit in question is admittedly for dissolution of the firm, rendition of accounts of the firm and for realisation of the property of the firm. The exception as carved out in Section 69(3) of the Act of 1932 would therefore, apply to the suit in question and the bar of Section 69(1) & (2) would not apply. 14. The Hon’ble Apex Court while analysing Section 69 of the Act of 1932 in the case of Umesh Goel vs. Himachal Pradesh Cooperative Group Housing Society Ltd.; (2016) 11 SCC 313 observed as under : “16. Keeping the above outcome of the legal position that can be derived from a reading of Sub-sections (1), (2) and (3) of Section 69 in mind we can draw further conclusions by making specific reference to clauses (a) and (b) of Sub-section (3) as well as the exceptions set out in clauses (a) and (b) of Sub-section (4) as well. When under Sub-section (3) which also relates to a ban concerning “other proceedings”, the law makers wanted to specifically exclude from such ban such of those proceedings which are also likely to arise in a suit, but yet the imposition of ban of an unregistered firm need not be imposed. Keeping the said intent of the law makers in mind, when we read clauses (a) and (b) of Sub-section (3), it can be understood that even though such other proceedings may be for the enforcement of any right to sue but yet if it is for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm, the same can be worked out by way of a suit in a Court or by way of other proceedings in that suit and the same will not be affected by the ban imposed under Sub-section (3). Similarly, any steps initiated at the instance of an official assignee, a receiver or Court under the Presidency-Towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realize the property of an insolvent partner in a pending suit of a Court also stand excluded from the ban imposed under Sub-section (3). The specific exclusions contained in Clauses (a) and (b) of Sub-section (3), therefore, makes the position clear to the effect that even though such proceedings may fall under the expression "other proceedings" and may be intrinsically connected with a suit in a Court, yet the ban would not operate against such proceedings.” 15. In view of the above ratio and in view of the above observations and analysis, this Court does not find any ground to interfere with the order impugned dated 28.02.2014 passed by the Additional District Judge, Parbatsar, District Nagaur and the present revision petitions are hence, dismissed. 16. Stay petitions and pending applications, if any, stand disposed of.