Kerala High Court
K.N.Unnikrishnan vs M/S.St.George Banker And Kuries on 19 June, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934
CRP.No. 522 of 2006 ( )
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(AGAINST THE ORDER/JUDGMENT IN OS.NO.163/2002 of PRINCIPAL SUB
COURT, ALAPPUZHA DATED 19-06-2006)
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REVISION PETITIONER(S)/DEFENDANT:
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1. K.N.UNNIKRISHNAN, AGED 38 YEARS,
S/O.NARAYANA PILLAI, RESIDING AT KALIKURUMBAL
THARAYIL, PADIVARAM, EDAPPALLY P.O.,KANAYANNOOR.
2. V.K.RADHAMONY AMMA, W/O.NARAYANA PILLAI,
RESIDING AT KALIKURUMBAL THARAYIL, PADIVARAM,
EDAPPALLY P.O., KANAYANNOOR.
3. SINDHU UNNIKRISHNAN,
RESIDING AT KALIKURUMBAL THARAYIL, PADIVARAM,
EDAPPALLY P.O., KANAYANNOOR.
BY ADVS.SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.K.A.NOUSHAD
RESPONDENT(S)/PLAINTIFFS:
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1. M/S.ST.GEORGE BANKER AND KURIES,
EDATHUA, REP. BY ITS MANAGING PARTNER, SAJI GEORGE,
S/O.CHERIAN GEORGE, RESIDING AT KAVILA VEETTIL,
PACHA, CHEKKIDIKKADU P.O., EDATHUA.
2. SAJI GEORGE, S/O.CHERIAN GEORGE,
MANAGING PARTNER, M/S. ST.GEORGE BANKERS AND KURIES,
EDATHUA.
3. LIZY GEORGE, W/O.CHERIAN GEORGE,
PARTNER, M/S. ST.GEORGE BANKERS AND KURIES, EDATHUA.
4. JOSEPH GEORGE, S/O.CHERIYAN GEORGE,
PARTNER, DO. DO., REP. BY HIS POWER OF ATTORNEY
HOLDER CHERIYAN GEORGE.
BY ADV. SRI.GEORGE KARITHANAM VARGHESE
SRI.JOSE KURIAKOSE (VILANGATTIL)
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 31-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.522 OF 2006
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Dated this the 31st day of January, 2013
O R D E R
Petitioners are defendants in a suit for money.
Respondents are the plaintiffs. The 1st plaintiff is stated to be a registered firm and the other plaintiffs, its partners. The firm is carrying business of providing financial assistance taking securities, and also conducting kuries. Case of the plaintiffs is that the firm is registered at Jammu and it has a branch office at Edathua where plaint transactions with the defendants over a kury took place. Among other contentions to resist the suit claim amending the original written statement, petitioners/defendants impeached the maintainability of the suit as barred under Section 69 (2) of the Partnership Act, for short, the 'Act'. Plaintiffs thereupon produced documents to show that it has got registration not only in Jammu and Kashmir but also in Cuttak, Orissa. The issues relating to jurisdiction and whether the suit is barred under Section 69 (2) of the Act, framed as issue nos.1 and C.R.P.No.522/2006 2 8 among other issues cast on the pleadings of the parties, were heard and decided preliminarily by the learned Sub Judge. Order passed holding that the court has jurisdiction and also the suit is not barred under Section 69 (2) of the Act repelling the contentions of the petitioners/defendants, is challenged in the above revision.
2. Learned counsel for petitioners/defendants adverting to the partnership deeds which had been produced by the plaintiffs before the Registrar of Firms at Jammu & Kashmir, and also in Cuttak, Orissa contended that substantially and materially the terms for constituting the firm and its operations under the two deeds are different from one another, and therefore the firm constituted under each deed is different from the other. Where plaintiffs have filed the suit alleging that the 1st plaintiff is a firm registered at Jammu, production of some documents evidencing registration of another firm in the name of 1st plaintiff at Cuttak where such firm is shown to be different would not entitle the C.R.P.No.522/2006 3 plaintiffs to enforce the contract alleged to have been entered by the defendants with the plaintiffs in respect of the kuri business, is the submission of the counsel. It is further pointed out that the court below has not adverted to any of such contentions pressed into service by the defendants for resisting the suit, and more so, its maintainability. Overlooking the statutory interdiction covered under Section 69 (2) of the Act, it has concluded that mere registration of the firm would suffice the statutory mandate under the aforesaid Section, according to the counsel. Per contra learned counsel for respondents/plaintiffs contended that the challenge canvassed over the maintainability of the suit was not even raised in the original written statement of the defendants, but, only later moving an application for amendment of their written statement. That amendment having been allowed and entertained by the court plaintiffs produced documents to show that the 1st plaintiff firm has been registered in Cuttak, Orissa also and the suit is perfectly entertainable. No interference with the order passed by the learned Sub Judge C.R.P.No.522/2006 4 holding that the court has jurisdiction to entertain the suit and it is not barred under Section 69 (2) of the Act is called for, is the further submission of the counsel.
3. After going through the Order challenged in the revision with reference to the submissions made by the counsel on both sides and also the facts and circumstances presented in the case, I find the questions posed for consideration under the issues framed by the court over its jurisdiction and also the maintainability of the suit covered by issue nos.1 and 8 framed, required to be considered after affording both sides an opportunity to lead evidence in support of their respective case. Suit claim if we go by the allegations raised in the plaint, a copy of which was handed over to me by the learned counsel for petitioners, would indicate that the 1st plaintiff firm registered at Jammu has a branch at Edathua within Kerala where the transaction covered by the kuri with the defendants giving rise to suit claim took place. Section 69 of the Act mandates that no C.R.P.No.522/2006 5 suit to enforce a right arising from a contract by a partner against other partners or by or on behalf of a firm against third party shall be entertained unless the firm is registered and the person suing is or has been shown in the Register of Firms as partners. However an exemption is made under sub section (4) of Section 69 of the Act with respect to firms or to partners in firms which have no place of business in the territories to which the aforesaid Act extended. When that be so, a firm registered at Jammu if it carries its business operations within the territories to which the Indian Partnership Act, 1932 applies, has to get it registered as mandated under the Act. Plaintiffs have asserted that they have got such registration of the 1st plaintiff firm at Cuttak also. Maintainability of the suit as barred under Section 69 (2) of the Act was not raised initially by the defendants in their written statement. But since that challenge goes to the root of the case and also affect the jurisdiction of the court, even if raised belatedly has to be gone into and decided. Lack of jurisdiction will affect the validity of the decree also, C.R.P.No.522/2006 6 which then can be impeached as a nullity. Where disputes are raised that the firm registered at Cuttak is a different entity and not the 1st plaintiff firm, and subsequent registration of the firm by plaintiffs would not save the suit from the bar under Section 69 (2) of the Act, that question can be resolved only after taking evidence. Order XIV Rule 2 of the Code of Civil Procedure, for short, the 'Code', clearly spells out that where an issue can be decided purely on an issue of law alone, the court can determine that issue preliminarily if the decision thereof is sufficient to dispose the suit. But where the issue involves a mixed question of law and fact with the question raised over jurisdiction intricately connected with the dispute over the validity of registration of the firm, such issue can be resolved only after taking evidence is one of maximum questions of fact and law even if it pertains to jurisdiction or validity of registration of a firm to examine the bar under Section 69 (2) of the Act, when such issues can be resolved only after taking evidence giving opportunity to the parties in the lis to produce materials in C.R.P.No.522/2006 7 support of their case. So much so, setting aside the order impugned, the court below is directed to consider issue nos.1 and 8 with the other issues in the suit after taking evidence in the case. The court below is directed to give the suit priority for hearing and to dispose it after a fair trial, expeditiously, at any rate, within a period of six months from the date of receipt/production of a copy of this order.
Revision is disposed of.
S.S.SATHEESACHANDRAN JUDGE prp