Calcutta High Court
Md Mofazzular Rahman & Ors vs Md. Sarfaraz Alam& Ors on 7 April, 2021
Equivalent citations: AIR 2021 CALCUTTA 148, AIRONLINE 2021 CAL 235
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IA No.: GA/3/2020
(Old No.: GA/113/2020)
In
CS / 174/2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
COMMERCIAL DIVISION
MD MOFAZZULAR RAHMAN & ORS.
V.
MD. SARFARAZ ALAM& ORS.
For the Plaintiffs : Mr. S.K. Kapur, Sr. Adv.
Mr. Rudraman Bhattacharya, Adv.
Ms. Pooja Chakraborty, Adv.
Mr. Somdutta Bhattacharyya, Adv.
Ms. Radhika Misra, Adv.
Mr. Atreyo Banerjee, Adv.
Ms. Priyanka Prasad, Adv.
For the Defendants : Mr. Anindya Kumar Mitra, Sr. Adv.
No.1 Mr. AbhrajitMitra, Sr.Adv.
Mr. Jishnu Choudhury, Adv.
Mr. Amitabh Roy, Adv.
Mr. AritraBasu, Adv.
Mr. Ratul Das, Adv.
For the Respondent : Mr. RajanBachawat, Sr. Adv.
Nos. 2 & 3 Mr. D. N. Sharma, Adv.
Mr. Ratnesh Kumar Rai, Adv.
Mr. AnunayBasu, Adv.
Hearing concluded on : March 15, 2021
Judgment on : April 07, 2021
DEBANGSU BASAK, J. :-
1. In a suit amongst the partners of a partnership firm, the 2 defendant No. 1 has applied for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908.
2. Learned Senior Advocate appearing for the defendant No. 1 has submitted, that the suit is barred under Section 69(1) of the Partnership Act, 1932. He has contended that, two criteria are required to be fulfilled under Section 69(1) of the Act of 1932 for it to be attracted. Firstly, the plaintiffs must have sued as partners of the partnership firm. The defendants have also to be sued as partners of such firm. Secondly, the suit has to be for the enforcement of the rights arising from the contract of partnership.
3. Referring to the pleadings in the plaint, learned senior advocate appearing for the defendant No. 1 has submitted that, the plaint discloses that the plaintiffs have filed the suit as partners of the partnership firm of Md.Sirajuddin& Company. Therefore, the first criterion under Section 69(1) of the Act of 1932 has been satisfied. The second criteriaalso stands satisfied according to him,as the plaint has been for the enforcement of alleged rights arising from the provisions of the deed of partnership. According to the plaintiffs, the partnership firm can 3 never be dissolved and that, the defendant No. 1 has been acting in violation of the terms of Clauses 11, 19 and 21 of the partnership firm. The plaintiffs having claimed reliefs against the defendants on the basis of the partnership between the parties both the criteria stand satisfied.
4. Learned Senior Advocate appearing for the defendant No. 1 has submitted that, although, the suit is within the ambit of Section 69(1) of the Act of 1932, there is no averment in the plaint that the partnership firm is a registered partnership firm. He has submitted that, the same is a jurisdictional fact. Unless the partnership firm has been registered, the Court's jurisdiction to entertain the plaint would be barred by law and the plaintiffs will have no cause of action unless they pleaded in the plaint that the firm has been registered under the Act of 1932. He has submitted that, the plaint must aver the jurisdictional fact that the partnership firm is registered under the Act of 1932. In support of such contentions, he has relied upon All India Reporter 2003 AP 418 (The A.P. Co-op. Wool Spinning Mills Ltd. &Anr. v. G.Mahanadi & Co. Wool Merchants &Ors.) and (2016) 1 CHN 357 (Sri. Jagadamba Singh v. Smt. Kalawati Devi & Ors.).Relying upon1977 Volume 1 Supreme Court 4 Cases 379 (Seth LoonkaranSethiya & Ors. v. Mr. Ivan E. John & Ors.) learned senior advocate appearing for the defendant No. 1 has submitted that it is mandatory to dismiss the suit if the partnership firm is not registered. According to him, the Court has no discretion in that regard.
5. Learned Senior Advocate appearing for the defendant No. 1 has relied upon (1947-48) 52 CWN 15 (Guno Prosad Kundu v. Abhoy Hari Sreemani & Anr.) for the proposition that, the expression contract means the partnership agreement.
6. Learned Senior Advocate appearing for the defendant No. 1 has contended that, only the plaint has to be looked into for the purpose of considering an application under Order VII Rule 11 of the Code of Civil Procedure, 1908. Even the written statement cannot be looked into. Consideration of the contentions of the defendant is impermissible. He has relied upon 2003 Volume 1 Supreme Court Cases 557 (Saleem Bhai & Ors v. State of Maharashtra & Ors.) and 2017 Volume 13 Supreme Court Cases174 (Madanuri Sri Rama Chandra Murthy v. Syed Jalal) in this regard. Relying upon All India Reporter 1986 Cal 134 (In the matter of Abani Kanta Pal) and All India 5 Reporter 1976 Cal 471 (Sunderlal& Sons v. Yagendra Nath Singh & Anr. ), learned Senior Advocate appearing for the defendant No. 1 has submitted that a plaint that is barred under Section 69 of the Act of 1932 is a void plaint. He has submitted that, the same view has been followed in All India Reporter 2003 AP 418 (The A.P. Co-op. Wool Spinning Mills Ltd. &Anr. v. G.Mahanadi& Co. Wool Merchants &Ors.) and All India Reporter2012 MP 9 (Ashish Verma v. Neeraj Vyas &Ors). He has relied upon 2005 Volume 5 Supreme Court Cases 548 (N.V. Srinivasa Murthy & Ors. v. Mariyamma (dead) by proposed LRS. &Ors.)to contend that, it is impossible to claim other reliefs to get around a bar of law.
7. Learned Senior Advocate appearing for the defendant No. 1 has relied upon 2019 SCC Online SC 372 (Raghwendra Sharan Singh v. Ram Prasanna Singh (dead) by LRs) and 2017 Volume 13 Supreme Court Cases Page 174 (Madanuri Sri Rama Chandra Murthy v. Syed Jalal) as instances where an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 have been allowed.
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8. Learned Senior Advocate appearing for the defendant No. 1 has referred to paragraphs 3 and 4 of the plaint and submitted that, the plaintiffs have admitted that Md. Sirajuddin and Company was a registered firm. He has submitted that, the dispute is whether the firm Md. Sirajuddin and Company constituted by a deed of partnership dated October 1, 2011 is a partnership at will or not. He has submitted that, the defendant No. 1 received a copy of the certificate of registration of such firm from the Chief Financial Officer of the firm and believed the same to be genuine. The plaintiffs have disputed the contents of the certificate of registration.
9. Learned Senior Advocate appearing for the defendant No. 1 has submitted that, registration of the partnership firm is not an issue in the suit. No dispute has been raised by the plaintiffs about the registration of the partnership firm. According to him, the plaintiffs and the defendant Nos. 2 and 3 have admitted that the partnership firm is not registered. The defendant No. 1 has not stated in his written statement as whether the partnership firm is registered or unregistered. Therefore, according to him, the suit should be dismissed.
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10. Learned Senior Advocate appearing for the plaintiffs has submitted that, the plaint can be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 only on the basis of the statements made in the plaint. No other pleading or application or petition are relevant and ought not to be looked into at all. He has relied upon AIR 1953 Calcutta 222 (Sreedam Chandra Bhur v. Tincore Mukherjee &Ors.) and 2004 (3) Supreme Court Cases 137( Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner &Ors.)in support of such contention.
11. Learned Senior Advocate appearing for the plaintiff has submitted that, the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 does not refer to any pleadings in the plaint to justify any bar based on Order VII Rule 11. The defendant No. 1 has not alleged that the plaint does not disclose any cause of action. The contentions of the defendant No. 1 are based upon statements not contained in the plaint. According to him, inviting the Court to look into the documents other than the plaint is not permissible in a proceeding under Order VII Rule 11 of the Code of Civil Procedure, 1908. Therefore, the application of the defendant No. 1 is not maintainable.
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12. Learned Senior Advocate appearing for the plaintiffs has submitted that, the partnership firm is admittedly registered. The defendant No. 1 has himself relied upon a photo copy of the certificate of registration. Such certificate dated October 16, 2007 has been issued by the Registrar of firms. Therefore, the firm stands registered since then. Reconstitution of a firm either by way of death or retirement or expulsion or for any other reason does not affect the registration of the firm. In support of such contention, he has relied upon 1998 Volume 2 Supreme Court Cases Page 171 (Sharad Vasant Kotak &Ors. v.
RamniklalMohanlalChawda&Anr.) and ILR 1940 Bombay 715 (Pratapchand Ramchand & Company v. Jhangirji Bomanji Chinoy).
13. Learned Senior Advocate appearing for the plaintiffs has submitted that the defendant No. 1 admitted that the registration certificate of the firm as authenticated by Chief Financial Officer establishes the registration of the firm. Such being the position, all ingredients under Section 69 have been fulfilled. He has relied upon 2009(5) LW 422 (M/s. S. B. Steel Industries rep. by its Partner Mr. Rattanlal Tantia v. M/s. India Re-Rolling Mills ) in support of his contentions.
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14. Relying on All India Reporter 1961 Odisha 1994 (Chiman Ram Bhatar&Ors. v. Ganga Saha&Anr.) and ILR 1943 (22) Patna 513 (Krishna Prasad Singh v.
AdyanathGhatak), learned Senior Advocate appearing for the plaintiffs has submitted that, a pleading of registration is not a sine qua non for maintaining a suit or filing a suit. It is a procedural requirement. The cause of action is not affected by the registration.
15. Relying on 1920 (1) Ch. 567(Gates v. W. A. & R. J. Gacobs, Limited) and 1971 (84) L.W. 523(S. A. Henry v. J. V. K. Rao.)learned Senior Advocate appearing for the plaintiffs has submitted that, all conditions precedent are implied even if not pleaded. He has relied upon 1981 Mh. L. J. 706 (Vasant AmbadasPandit v. Bombay Municipal Corporation &Ors.) and submitted that, where, service of notice is a condition precedent for instituting a suit, the same is a procedural requirement and does not go to the root of the jurisdiction in the true sense of the term.
16. Relying upon 2000 Volume 3 Supreme Court Cases 250 (Haldiram Bhujiawala & Anr. v. Anand Kumar Deepak 10 Kumar & Anr.), learned senior advocate appearing for the plaintiff has submitted that, the plaintiffs have claimed various reliefs under the Specific Relief Act, 1963 and have claims on account of tort. Therefore, since other causes of action arising out of common law are present in the suit, it cannot be said that the instant suit is barred under Section 69 of the Act of 1923.
17. Learned Senior Advocate appearing for the defendant Nos. 2 and 3 has submitted that, the application of the defendant No. 1 has been verified by an affidavit of a person who has not disclosed his authority to make such application on behalf of the defendant No. 1. He has submitted that, the defendant No. 1 himself has disclosed the certificate of registration of the partnership firm and that such documents will establish that the firm was registered on October 16, 2007.
18. Learned Senior Advocate appearing for the defendant Nos. 2 and 3 has relied upon 1998 Volume 2 Supreme Court Cases 171 (Sharad Vasant Kotak &Ors. v. Ramniklal Mohanlal Chawda & Anr.) for the proposition that the firm stands registered. He has also relied upon the authorities cited on behalf of the plaintiffs particularly 2011 SCC online Patna 84 (Modern 11 Food Industries (India) Limited &Anr v. M/s Nandlal& Company &Ors), ILR 1943 (22) Patna 513 (Krishna Prasad Singh V. AdyanathGhatak), All India Reporter 1961 Odisha 1994 (Chiman Ram Bhatar & Ors. v. Ganga Saha & Anr.), AIR 1981 Bom 394 (Vasant Ambadas Pandit v. Bombay Municipal Corporation &Ors.)and 1998 (7) SCC 184 (Raptakis Brett & Co. Ltd. v. Ganesh Property).
19. The plaintiffs have filed the instant suit against the defendants seeking declaratory decree and decree for perpetual and mandatory injunctions. The plaintiffs have pleaded in paragraph 1 of the plaint that, by and under a deed of partnership dated October 1, 2011, the plaintiffs and the defendants began to carry on business of a partnership with each other under the name and style of Md. Serajuddin& Co. The plaintiffs have claimed that the partnership is not at will and therefore, the notice of dissolution dated July 13, 2019 issued by the defendant No. 1 is illegal and invalid. The plaintiffs have claimed that the defendant No. 1 stands expelled from the firm. The plaintiffs have also claimed perpetual injunction restraining the defendant No. 1 from holding out and/or representing in any manner whatsoever as a partner of the firm subsequent to his 12 expulsion. All reliefs that the plaintiffs have claimed relate to and emanate out of the deed of partnership between the parties. The deed of partnership dated October 1, 2011 forms the foundational basis for the cause of action of the plaintiffs and the reliefs sought for in the plaint.
20. Interim orders have been passed in the suit at the instance of the plaintiffs. The Court has been informed that, there are appeals pending against one of the interim orders passed by Court. The defendant No. 1 has filed a written statement containing a counterclaim. The defendant No. 1has thereafter applied for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure 1908 by way of the present application.
21. According to the defendant No. 1, the plaint is barred under section 69 of the Indian Partnership Act, 1932. In deciding an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, the Court has to proceed on the basis of a meaningful reading of the plaint. As has been laid down inSaleem Bhai &Ors(supra), Sreedam Chandra Bhur(supra), SopanSukhdeo Sable(supra) and Madanuri Sri Rama Chandra Murthy (supra) only the averments in the plaint are 13 germane and that, the pleas taken by the defendant in the written statement would be wholly irrelevant while considering an application under Order VII Rule 11 of the Code of Civil Procedure, 1908. In the facts of the present case therefore, the stand of the respective parties to the suit in the various pleadings and affidavits, apart from the plaint, in respect of the registration of the partnership firm is immaterial and cannot be taken into consideration while deciding the present application.
22. The plaint has 62 paragraphs. The plaintiffs have complained about the dealings and misdeed of the defendant No. 1 in relation to the partnership firm. The plaintiffs have sought reliefs against the defendant No. 1 in relation to the partnership firm. In the plaint, the plaintiffs have not stated that the partnership firm in respect of which the plaintiffs are seeking relief as against the defendant No. 1 is registered or not. In other words, the plaintiffs have remained silent on the issue of registration of the partnership firm in respect of which, the plaintiffs are seeking relief as against the defendant No. 1, in the plaint. The plaintiffs have sought reliefs as against the defendant No. 1 qua the jural relationship as partners of the partnership firm. The plaintiffs have claimed that the partnership was not at 14 will and therefore the notice of dissolution of the firm issued by the defendant No. 1 is invalid. The plaintiffs have also claimed that the defendant No. 1 has been validly expelled as a partner of such partnership firm and therefore he should be restrained from holding himself out as a partner of such partnership firm. .
23. As has been noted above, the defendant No. 1 has contended that, the plaint is barred under Section 69 (1) of the Indian Partnership Act, 1932. Section 69 of the Indian Partnership Act, 1932 is as follows: -
"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,--15
(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 5, this Chapter does not apply, or
(b) to any suit or claim of 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 (5 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."
24. In Sunderlal& Sons (supra) the Calcutta High Court has considered an application for execution. The Court has taken note of the fact that, the execution petition had been filed by an unregistered firm. The Court had looked into decree and found that the firm was not registered. It has answered the question whether a decree passed without the point of absence of registration under the Indian Partnership Act, 1932 being taken 16 at the trial of the suit, can be contended to be a nullity or not. It has noticed various authorities on the subject and held that, where the execution is in respect of a claim arising out of the suit based on a contract, the prohibition indicated by Section 69 of the Act of 1932 will apply. It has held that, the entitlement of the Court to enter upon the enquiry can only arise from a competent plaint being instituted by a plaintiff. If the plaint was incompetent, there was no plaint. There was no suit. The decree based on such an indisputable error would be an error of jurisdiction and decree passed on such error would be a nullity.
25. Sunderlal& Sons (supra) has been considered by the Division Bench in AbaniKanta Pal (supra). It has held as follows: -
"9. In our opinion, it may be that S. 13(6) of the West Bengal Premises Tenancy Act puts an embargo on the plaintiff and does not oust the jurisdiction of the Court. A defendant in a suit for eviction may waive service of a notice under S. 13(6). Section 69(1) of the Partnership Act, however, stands on a different footing. The embargo that has been put on the plaintiff under sub-secs. (1) and (2) of S. 69 is not for the purpose of protecting the interest of any party, but it is based on public policy. The requirements of sub-secs. (1) and (2) of S. 69 cannot be waived by the defendant, and the Court is debarred from entertaining a 17 suit ignoring the fulfilment of such requirements. So, if a firm is not registered, excepting a suit as contemplated by S. 69 (3), the Court will have no jurisdiction to entertain a suit in violation of S. 69(1). 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-secs. (1) and (2) of S. 69 of the Partnership Act. This view finds support from a decision of the Supreme Court in LoonkaranSethia v. Ivan E. John, AIR 1977 SC 336. In that case, sub-secs. (1) and (2) of S. 69 were involved. The Supreme Court made thefollowing observations:
"A bare glance at the section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of S. 69 of the Partnership Act........"
10. This Court in Sunderial and Sons v. YagendraNath Singh, AIR 1976 Cal 471 has held that in view of the language of S. 69 a plaint filed by an unregistered firm would not be a plaint at all and all proceedings thereunder will be proceedings without jurisdiction.
11. Thus, there cannot be any doubt when a plaint is filed in infringement of sub-secs. (1) and (2) of S. 69, It will be treated avoid plaint. In other words, the Court will ignore the existence of any such plaint."
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26. Sunderlal& Sons (supra) has been noticed by the Andhra Pradesh High Court in The A.P. Co-op. Wool Spinning Mills Ltd.(supra). It has held that, the issue of maintainability of a suit by a partnership without establishing that the firm is registered is a point which can be raised even in appeal.
27. In Ashish Verma (supra) the Madhya Pradesh High Court has dismissed a suit for want of registration under Section 69 of the Indian Partnership Act, 1932. In Guno Prasad Kundu (supra) the Division Bench has held that, in a suit seeking declaration that the plaintiff is a partner of the unregistered partnership it is impermissible to suggest that the suit has not been instituted by the plaintiffsas a partner of such firm.
28. Jagadamba Singh (supra) has considered Section 69 of the Indian Partnership Act, 1932 and various authorities on the subject. It has held that the suit under consideration was barred by the provisions contained in Section 69 (1) of the Indian Partnership Act, 1932.
29. Chiman Ram Bhatar (supra) has held that, registration under Section 69 of the Indian Partnership Act, 1932 is not a part of the cause of action to file a suit. It has expressed the view 19 that, enforceability of the right relates to procedure. Viewed from such aspect Section 69 is only a procedural bar to the plaintiff taking recourse to a suit as a remedy and therefore Section 69 does not affect the substantive right of the plaintiff on the cause of action. It has however not noticed Seth Loonkaran Sethiya & Ors. (supra) where the Supreme Court has held that, Section 69 is mandatory in character and its effect is to render a suit by a plaintiff in respect of right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void.
30. Although Modern Food Industries (India) Limited (supra) has noticed Loonkaran Sethiya (supra) but proceeded to observe that, even if a suit is filed by an unregistered partnership firm and it is treated to be incompetent under Section 69 of the Indian Partnership Act, 1932, if pending the suit and before a decree is obtained, the plaintiff gets itself registered, the defect in the filing stands cured.
31. In view of the Supreme Court in LoonkaranSethiya(supra) laying down that Section 69 of the Indian Partnership Act, 1932 is mandatory in character and its effect is to render a suit by a 20 plaintiff in respect of right vested in him or acquired by him under contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void, the ratio expressed in Chiman Ram Bhatar(supra) and Modern Food Industries (India) Limited (supra) cannot be applied in the facts of the present case.
32. Section 69 of the Indian Partnership Act, 1932 is mandatory. It prohibits institution of a suit by an unregistered partnership firm under Section 69(2) and a suit amongst partners of an unregistered partnership firm under Section 69(1) unless the suit amongst the partners is for dissolution and accounts of the firm. A suit instituted in breach of the bar under Section 69 of the Indian Partnership Act, 1932 renders the plaint of such suit void. An unregistered partnership firm can however enforce a statutory right against a third party. Absence of registration of the partnership firm renders a suit filed by a plaintiff in respect of right vested in him or acquired by him under contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. A partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of contract falling within the ambit 21 of Section 69 of the Indian Partnership Act, 1932. The defect is incurable. A plaint filed in respect of an unregistered partnership firm falling within the ambit of Section 69 of the Indian Partnership Act, 1932 would not be a plaint at all and all proceedings thereunder will be proceedings without jurisdiction.
33. In order to ensure that the plaint filed by the plaintiff is not treated as a void plaint, in an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 the plaintiff has to demonstrate from the pleadings in the plaint that, the embargo under section 69 of the Indian Partnership Act, 1932 is not attracted to such plaint.In other words, in order to defeat a challenge under Order VII Rule 11 of the Code of Civil Procedure, 1908 the plaint has to contain the jurisdictional fact with regard to Section 69 of the Indian Partnership Act, 1932 such as any other jurisdictional fact so as to ensure that the plaint is not rendered void due to lack of such pleading. In the facts of the present case, the plaint is silent with regard to the registration of the partnership firm. The jurisdictional fact of registration of the partnership firm when the plaintiffs are claiming reliefs emanating out of a contract of partnership being absent in the plaint, the same is required to be treated as void. 22
34. The plaintiffs and the defendant Nos. 2 and 3 in the present suit have relied upon the registration certificate of the partnership firm as has been disclosed by the defendant No. 1. The plaintiffs have claimed that, the partnership firm is admittedly registered. While considering an application under Order VII Rule 11 of the Code of Civil Procedure 1908, the Court has to proceed on the basis of the meaningful reading of the plaint. The Court is not permitted to look into any other pleading including the written statement. Therefore, the jurisdictional fact of registration of the partnership firm under section 69 of the Indian Partnership Act, 1932 remaining absent in the plaint, the plaintiffs and the defendant Nos. 2 and 3 cannot be allowed to take benefit of any pleadings elsewhere other than the plaint.
35. The plaintiffs have relied upon Krishna Prasad Singh (supra) and Order VIRule 6 read with Order VIII Rule 2 of the Code of Civil Procedure, 1908 to contend that, all conditions precedent are to be taken as impliedly complied with in the pleading. It was for the defendant No. 1 to raise the point if he wished to contest it. The ratio laid down therein has to be understood in the context of the facts of that case. In that case, a suit for declaration of title and recovery of possession was filed on 23 the ground of forfeiture of lease. The Court has considered the provisions of the Transfer of Property Act, 1882 and held that, the amended Section 111 of the Transfer of Property Act, 1882 not having retrospective operation, the incident of tenancy was not governed by it and therefore no notice to quit was necessary. In such context, it has held that, a general averment of the performance of all condition precedent is implied in every pleading. The same cannot be extended to mean that, a statutory bar would be overcome by the plaintiffs by silence.
36. In Gates (supra) the Court has considered section 14 of the Conveyancing Act, 1881 and held that, the averment that the notice was given, although not specifically pleaded, must be implied. The provisions of Section 69 of the Indian Partnership Act, 1932 is not parimateria with that of Section 14 of the Conveyancing Act, 1881.
37. Vasant Ambadas Pandit (supra) has held that, notice under section 527 of the Bombay Municipal Corporation Act, 1888 was a procedural requirement and that the same does not go to the root of the jurisdiction in truth sense of the term. As has been noticed by the Supreme Court in Loonkaran Sethiya 24 (supra) provisions of section 69 of the Indian Partnership Act, 1932 are mandatory.
38. Relying upon Haldiram Bhujiawala (supra) the plaintiffs have contended that, since a plaint cannot be rejected in part and there being other reliefs claimed by the plaintiffs, the plaint cannot be rejected. In the facts of the present case, such a contention cannot be accepted. All reliefs that the plaintiffs have claimed in the plaint emanate out of the contract of partnership dated October 1, 2018. The reliefs prayed for are qua the partners of the partnership firm.
39. The ratio as has been laid down by the Supreme Court in Sharad Vasant Kotak (supra) is of no assistance to the plaintiffs in view of the fact that, the plaintiffs have not pleaded the jurisdictional fact of registration of the partnership firm in the plaint. Therefore, in the facts of the present case, whether the partnership firm remains registered subsequent to its reconstitution or not has not fallen for consideration in the present application under Order VII Rule11 of the Code of Civil Procedure, 1908. Similarly, the ratio of Pratapchand 25 Ramchand& Company (supra) has no applicability in the facts of the present case.
40. M/s. S. B. Steel Industries (supra) has held that, the bar contemplated under Section 69 (2) of the Indian Partnership Act, 1932 will apply only when the suit is filed to enforce a right arising from a contract against a third party. In the facts of that case, the plaintiff therein was a registered partnership firm. The plaintiffs herein have sued the defendants qua partners of a partnership firm without pleading in the plaint that the firm is registered.
41. In Raptakis Brett & Co. Ltd. (supra) the Supreme Court has held that, in order to decide the question whether the suit is hit by Section 69 (2) of the Indian Partnership Act, 1932 one has to see what the plaintiff claims as his cause of action. In the facts of that case, the Supreme Court has held that, the plaintiff therein was implementing the statutory right of the lessor and the corresponding statutory obligation of the lessee for getting peaceful possession from the defendant. It has held that, non- compliance of the statutory obligation when made the subject matter of corresponding legal right, cannot be said to be giving 26 rise to enforcement of any contractual right. A statutory right therefore can be enforced by an unregistered firm. In the facts of that case, the firm was registered subsequent to the filing of the suit. In the facts of the present case, the plaintiffs are not enforcing any statutory rights as against the defendants. The rights that the plaintiffs are seeking to enforce have emanated out of the contract of partnership.
42. In the facts of N. V. Srinivasa Murthy &Ors.(supra) the Supreme Court has held that, the suit was cleverly drafted with a view to get over limitation and payment of ad velorem Court fees. In that case, the plaint had been rejected.
43. The suit is barred under section 69 (1) of the Indian Partnership Act, 1932, as will appear from the averment made in the plaint. The plaint is consequently rejected. IA No. GA/3/2020 is allowed without any orders to costs.
[DEBANGSU BASAK, J.]