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TMI Blog1989 (11) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to file a fresh suit in respect of the subject-matter of the present suit. The suit was filed by M/s. R.S.S. Vashtrad an Company through one of its partners M. M. Nalavad. He had sworn to before Court that he had filed Exhibit A-2 partnership deed to show that he is a partner of the plaintiff firm even prior to 10-10-1983, but, however, this fact was not intimated to the Registrar of Firms by the Auditor of the Firm, and that entry had been made in the Register only diring the pendency of the suit, and therefore, it being a formal defect, which would not go into the root of the matter, he had been advised to file a fresh suit, and therefore, he sought for permission to withdraw the suit with liberty to file a fresh suit. 2. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit in violation of S. 69(1). It further added : ..... In other words, the plaint that has been filed by the plaintiff will be considered a void plaint, if it contravenes the provisions of sub-sees. (1) and (2) of S. 69 of the Partnership Act..... A Division Bench of the same Court in an earlier decisions in Ram Kumar Shew Chan-drai, a Firm v. Dominion of India, held that if the name of one person who was partner on date of suit is not shown in the Register then the suit as filed is not maintainable. A Division Bench in Bank of Koothattukulam v. Thomas, AIR 1955 Trav Co 155 held : It is necessary not only that the firm should be registered, but the person suing must be shown as a partner in the firm. And whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Judge, could not apply in relation to a suit covered by S. 69(2)of the Act, which had been held by the Supreme Court as mandatory; The concept of formal defect which could be available under O. 23, R. 1(3), C.P.C. would have no relevance when a mandatory requirement is not complied with, for the institution of a suit. As learned Judge in Atul v. Rajkishore, AIR 1956 Orissa 77 also took the same view in respect of O.23, R. 1(b), C.P.C. to the effect that a formal defect is a defect of form which is prescribed by rules of procedure such as misjoinder of parties, causes of action, non-payment of court-fees, etc., and in a case where plaintiff fails to incorporate a prayer for dissolution of partnership in a suit for accounts, it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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