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TMI Blog2002 (6) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... d save it from dismissal under Section 69 (2) of the Indian Partnership Act, 1952 as amended? ii) Whether the court below is not bound by the unreported judgment of this Honourable Court dated 27-09-1983 in C.S. Nos. 20 and 21 of 1 982 and the decision of the Supreme Court in AIR 1989 SC 1769? iii) Whether the court below was right in applying the ration reported in (1989) I Madras Law Weekly 405 to the present case? iv) Whether the lower appellate court is right in putting the case of surrender pleaded by the plaintiffs against the defendant? 3. The trial court, though dismissed the suit, unequivocally found that the defendant is liable to pay the suit amount of Rs.20,000/- to the plaintiff, as against the same, the defendant has not filed any appeal, hence the fourth substantial question of law does not arise and answered accordingly. The trial however dismissed the suit on the ground that the names of the plaintiffs 3 and 4, who are partners of the 1st plaintiff firm did not find place in the register of firms on the date of institution of the suit and the incorporation of the names of the said two partners in the register of firms pending suit would not cure the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with........ The registration after the institution of the suit cannot cure the defect of non-registration before the date of suit . In this case, the plaintiff firm filed a suit through one of its partners, whose name was registered with registrar of firms after cross-examination of the plaintiff and the court held that the suit was void. This Judgment is not applicable to the facts and the circumstances of the case on hand. II) AIR 1989 Madras 405 (Sugesan Finance Investment rep. by its Partner Manoj K. Sheth at Park Town, Madras 3 Vs. Mulji Mehta Sons, rep. by its Partners No.140-B, Shamaldas Gandhi Marg, Bombay) wherein in Para-14 it was held thus: 14. The second charge levelled against the respondent is that this suit has been filed by Surgesan Finance Investment, a registered firm, represented by one Manoj K. Sheth, calling himself falsely a partner, though in fact he was not shown as a partner in the Register of firms, and thereby violating S.69 (2) of the Partnership Act. But the counsel for the respondent argued that the said Manoj K. Sheth had already become a partner from 20-11-1980 by deed of partnership dated 2 0-11-1980 and the same fact is also suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were shown as partners as per the relevant entries in the register of firms were not, in fact, partners, one new partner had come in and two minor had been admitted to the benefit of the partnership firm regarding which no notice was given to the registrar of firms. The persons suing namely the current partners, as on the date of suit were not shown as partners in the Registrar of Firms with the result the apex Court held that the suit was not maintainable. This Judgment is also not applicable to the facts and circumstances of the case on hand. IV) AIR 1977 Calcutta 37 (Ram Kumar Shew Chandrai, a Firm Vs. Dominion of India now The Union of India) wherein in Para Nos. 8 9 it was held thus:- 8. ....The second condition under Sec. 69 (2) is that the persons suing are or have been shown in the Register of Firms as partners in the firm. The entries in the Register of Firms do not, however, include the name of Durga Prasad as one of the partners of the firm. It is argued on behalf of the appellant that as the cause of action for the suit arose before Durga Prasad was taken in as a partner it is quite immaterial whether or not his name appears in the Register of firms and the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partners to sue or be sued in the name of the firm. Rule 2 would not have been in the form it is if the suit instituted in the name of the firm was not regarded as, in fact, a suit by the partners of the firm. The provisions of these rules of O.XXX being enabling provisions, do not prevent the partners of a firm from suing or being sued in their individual names. In this case the Hon'ble Apex Court held that the provisions of Order XXX Rule 1 and 2 of CPC are enabling provisions to permit several persons who are doing business as partners to sue or be sued in the name of the firm; do not prohibit partners of the firms from suing or being sued in their individual names. Hence the judgments mentioned above and unreported judgment of learned Single Judge in C.S. Nos. 20 and 21 of 1982 are not applicable to the case on hand. 7. The learned counsel for the respondent relied on the following decisions in support of his case. I) 1999 (9) Supreme Court Cases 113 (Gwalior Oil Mills Vs. Supreme Industries) wherein in Para-9 it was held thus:- 9. The implication of the registration so granted clearly was that the reconstituted partnership firm came into existence w.e.f. 1-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly finds a place in the Register of Firms along with the names of all the appellants, the requirements of Sec. 69 (2-A) are satisfied. Section 4 of the Act is also complied with for this limited purpose. In this case, it is held that the firm was registered, the name of the newly introduced partner, of course, does not find a place in the Register of Firms. In view of the new partner the existing firm only shall be reconstituted and therefore there is no necessity to get a fresh registration as such the suit is valid. III) AIR 1962 Patna 25 (Chaiman Lal and another Vs. Firm New India Traders Mica Merchants and others) wherein in Para 16 it was held thus:- 16. The next point urged by Mr. Mukherji was that the firm was not properly registered. Exhibit 12 is the registration certificate of the firm and it shows, that the firm was registered on 10th April 1948 with two partners namely Chandmull and Satyanarain Sarda only. According to the plaint, there are three other partners besides Chandmull and Satyanarain Sarda. It is obvious that these new partners became partners of the firm subsequent to the registration of the firm and they did not care to get their names ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is barred by S.86 read with S.87-B of the Code of Civil Procedure. As the suit was instituted without the requisite consent of the Central Government, no decree could be passed in the suit against the Maharaja of Sirmur. But the suit against the firm other than the Maharaja of Sirmur was competent and a decree could be passed against the firm other than the Maharaja of Sirmur and as such a decree could be executed against the partnership property and against the other partners by following the procedure of O.21, R.50 of the Code of Civil Procedure. It is true that respondent No.1 obtained a decree against the firm of Jagatsons International Corporation other than the Maharaja of Sirmur, and the decree so read is a valid decree which may be executed against the partnership property and the other partners of the firm by recourse of the machinery of O.21, R.50 of the Code of Civil Procedure. The application of respondent No.1 under O.21 R.50 (2) for leave to execute the decree against the other partners, is, therefore, maintainable. The second contention of Mr.Mukherjee must, therefore, be rejected. In this case, a suit was filed against a firm in which one of the partners bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending the suit may incur certain disabilities and that will not disable the plaintiffs to prosecute the suit. In this case, it is not required to decide what are the disabilities of the persons whose name do not find a place in the Register of Firms. The argument of the learned counsel for the appellant that unless the names of all the partners find a place in the Register of Firms, the suit filed by the plaintiff cannot be sustainable is untenable. There is no provision in the Partnership Act to justify that, if the names of the partners do not appear in the Register of Firms, the suit instituted by the firm shall fail. On joint reading of Section 69 of the Indian Partnership Act and Order 30 Rule 1 of CPC would make it clear that when a suit is instituted in the name of the Registered firm, only those persons who are registered as partners of the firm could get the benefit of a decree or shall be liable for a decree against the firm. 13. The first condition that enforcing a right arising out of a contract is concerned that the contract even by the unregistered firm referred to in Section 69 (2) must not only be one entered into by the firm with the third party-defendant but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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