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TMI Blog2011 (12) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... if four machines were purchased instead of two. 3. The respondent had offered in the original offer that Agency commission would be 15% of FOB value of order. By letter dated 07.03.1987, respondent offered discount of 5% on commission if entire order was placed on him and 100% commission was paid on receipt of shipping documents. 4. Appellants wrote letter dated 10.08.1987 to the respondent that the requirement was raised to four Grinder Machines and the respondent should submit reduced price bid accordingly. 5. Respondent vide letter dated 14.08/1987 did the needful and informed the appellants that the price of machine would be the same and be multiplied by four in place of two and discount of 5% on agency commission of 15% would be valid if (i) entire order is placed on the respondent and (ii) 100% agency commission released on presentation of shipping documents. Vide letter dated 09.11.1987, defendant No.3 in the suit, informed the appellants that respondent would not accept any amount less than already offered by them as their work involved lot of expenditure. 6. Further case of the respondent before the learned Single Judge was that the appellants thereupon placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Whether the plaint has been instituted, signed and verified by a duly authorized person? OPP (3) Whether the plaintiff is entitled to receive `4,39,466.20 being 15% agency commission or any lesser amount? OPP (4) Whether the plaintiff is entitled to interest on `4,39,466.20 or any lesser amount and if so at what rate and period thereof? OPP (5) Whether the plaintiff agreed to give discount of 5% and charge 10% commission payable after commissioning of machine? OPP (6) Whether the discount of 5% was available only on conditions set out in the plaintiff‟s letter 07.03.1987 and 14.08.1987 being fulfilled? OPP (7) Whether the plaintiff is not entitled to any commission due to its breaches and failure to perform its obligations as set out in para 3(c ) of the preliminary objection and 23 and 24 of the written statement on merits? OPP (8) Whether the defendant Nos. 1 and 2 had the site ready for installation of the equipment/machinery in terms of amendment to the contract dated 06.05.1988? OPP (9) Relief. 10. On recording evidence of the parties and considering the rival contentions, the learned Single Judge passed the impugned judgment and decree dated 20.05.2003. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent-firm specifically pleaded that respondent-M/s Continental Eastern Agencies was a registered partnership firm and Mr.V.P.Verma was duly authorised and competent to file and prosecute the suit for and on behalf of the respondent-firm and to sign and verify the pleadings, swear affidavits, engage counsel and to do acts necessary and incidental to the filing of the suit. In the written statement the respondent merely denied this assertion of the appellants and simply pleaded that the plaint has not been instituted, signed and verified by an authorised person and the respondent-firm was not registered partnership firm. It also denied that Mr.V.P.Verma was authorised and competent to file and prosecute the suit. No reasons were disclosed by the appellants as to how Mr.V.P.Verma was not authorised or competent to file and prosecute the suit. Respondent did not specifically plead that Mr.V.P.Verma was not a partner in the respondent-firm and had no authority to file the suit. 17. The burden to prove issue No.2 was upon the respondent and the respondent examined Mr.Ved Prakash Verma to prove its case. In his evidence filed by way of affidavit Mr.Ved Prakash Verma testified on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile the suit or to sign and verify the pleadings on behalf of the respondent-firm. Virtually there is no counter evidence adduced on record by the appellants to falsify the claim of Mr.V.P.Verma recording his status in the respondent-firm. 20. We have gone through Ex.P-6 (form-A) issued by Registrar of Firms under Section 69 of the Indian Partnership Act. 21. This document Ex.P-6 shows the date of registration of the respondent firm on 08.12.1986. Among others Mr.Ved Prakash Verma has been shown a partner as Karta (HUF). This document Ex.P-6 is a certified copy issued by the Registrar of Firms, Delhi on 18.06.1993. It does not contain if after registration of the firm on 08.12.1986 Mr.Ved Prakash Verma has ceased to be a partner in the respondent-firm at any time. There is mention of one Mr.Ashok Verma who was admitted as partner in the respondent-firm on 08.04.1991 vide notice dated 30.04.1991. It shows that whenever there was a change in the constitution of the respondent-firm, the said change was duly recorded with the Registrar of firms and the Registrar in turn carried out the changes in the form-A (Ex.P-6). No contrary evidence has been filed on record by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act, in such a case the family as a unit does not become partner but only such of its members has in fact enter into a contractual relation with the strangers, the partnership will be governed by the Act. 26. In the case reported as (1967) 66 ITR 613 (SC) Ram Laxman Sugar Mills v,Commissioner of Income-Tax, U.P. Ors. the Hon‟ble Supreme Court has categorically held that it is open to the manager of a joint Hindu Family as representing the family to agree to become a partner with another person. The partnership agreement in that case is between the manager and the other person and by the partnership agreement no members of family, except the manager acquires a right or interest in the partnership. The junior members of the family may make a claim against the manager for treating the income or profits received from the partnership as a joint family asset, but they cannot claim to exercise the rights of partners nor be liable as partners. 27. The authority relied upon by the learned counsel for the appellants in the case reported as (1998) 2 SCC 49 Rashiklal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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