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It is on record that still latter on 3.11.1992 another partnership deed was brought into existence consisting of the same partners. It is also on record that yet another partner Smt. Hemkuver B. Kotak (S.NO.4 above) died in September, 1994. The fact of death of this partner also was not intimated to the Registrar of Firms. While, so the 1st respondent gave a notice of dissolution of the firm to the appellants and also filed a suit for the dissolution of the partnership firm bearing Suit no., 5016/94 on 15.12.94 in the High Court of Judicature at Bombay on the original side. Initially in the plant, the constitutional validity of Section 69(2A) of the Indian Partnership Act (hereinafter called the "Act"), as amended by Maharashtra Act, was not raised. The 1st respondent moved a Chamber Summons No, 301/97 seeking permission of the Court to carry out certain amendments to the plaint. Briefly, the amendments sought were that subsequent changes and/or modifications in the partnership deed of M/s. Paramount Builders under the deed of partnership dated 20.10.1986 and also in the deed of partnership dated 3.11.1992 are merely in the nature of changes and/or modifications which do not affect registration of the said firm of M/s. Paramount Builders, as required under the Act , for entitling a partner to institute a suit for reliefs against the partners on dissolution of firms and alternatively, the other amendment sought was to challenges the vires of section 69 (2A) of the Act as in force in State of Maharashtra.

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CHAPTER VI Dissolution of a firm

36. Dissolution of a firm. The dissolution of a partnership between all the partners of a firm is called "dissolution of the firm".

CHAPTER VII Registration of Firms

58. Application for registration. (1) (Subject to the provisions of sub-section (A), the registration of a firm) effected by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated, a statement in the prescribed form and accompanied by the prescribed fee (and a true copy of the deed of partnership) stating:-

Contending contrary and supporting the judgment of the Division Bench. Mr,. Sole. J. Sorabjee, learned Senior Counsel, submitted that there is a well-recognised distinction between the legal concept of dissolution and reconstitution of a firm. In the case of an incoming or an outgoing partner in a existing firm, there is only a reconstitution of the firm and in all other respects, the existing firm continues with old and new partners. A look at chapter V of the Act. according to him, will fortify the above contention. In other words, chapter V deals with "Income and Outgoing partners" while Chapter VI separately deals with "Dissolution of a Firm". The two are totally different concepts and cannot in law be equated with each other, According to the learned Senior Counsel, the rules framed by Maharashtra Government in 1989 and the forms prescribed under the rules in particular Forms E. G. and H clearly support the said contention. It is also his contention that even when there is a dissolution of a firm. It does not cease to be registered firm but for the purposes of Partnership Act it continues to be registered. In other words, according to the learned Senior Counsel. the registration of a firm is valid till it is cancelled in a manner know to law. Non-compliance of Sections 61,62 and 63. as amended in Maharashtra, if at all, will attract the penalties prescribed under Section 69A and nothing more and it is incorrect to contend that non-compliance of the said provisions will result in deregistration is a drastic one, it is impermissible to hold that non-compliance with Sections 63(1) and 63(1A) would lead to deregistration of a firm in the absence of express and clear legislative provisions to that effect. He further contended that merely because another partnership deed was made on 20.1.01986, it cannot be said that there was a dissolution of the old firm and consequential formation of a new firm under the latter dead. According to the l earned Senior Counsel, it is the substance of the matter that is relevant to be looked into and not the phraseology employed by the parties. IN others words, the test is whether after the execution of the deed dated 20.10.1986, for all intents and purposes,. the firm as reconstituted was a different unit or remained the same unit in spite of change in its constitution. Looked at from this angle, the unit remained the same as it originally was in spite of change in its constitution and the contention to the contrary, according to the learned Senior Counsel, was not correct. To support this, he pointed out the similarities between the two deeds. The alleged dissimilarities as found in Clauses 4 and 5 of the Document dated 20.1.1986 are really not dissimilarities but consequential and incidental changes.

In Pratapchand Ramchand & Co. (supra), The Bombay High Court observed as follows:-

"Dealing in particular with S.63(1), that subsection among other things provides that when a registered firm is dissolved any person who was a partner immediately before the dissolution, or the agent of any such partner or person specially authorized in this behalf, may give notice to the Registrar of such change or dissolution, specifying the date therefore, and the Registrar shall make a record of the notice in the entry relating to the firm in the Register of Firms, and shall file the notice a along with the statement relating to the firm filed under S.59. Pausing there, that Section evidently contemplates in the case of a dissolution of a firm by death that notwithstanding the death h the firm should still be treated for the purpose of the Act as still registered., Mr, Davar has argued that by reason of the death and the dissolution of the firm the firm ceased to be registered, and in his argument he went so far as to say that the firm ought to have been g registered again No s doubt it would have been logical having regard to S.42 if the Act had so provided., But in fact it has not, The Act does contemplate notwithstanding dissolution by death that o far as registration is concerned the firm is to be deemed still to be registered, and it expowers any person who was a partner immediately before the dissolution to give motive of the change and required the Registrar to record that motive in the entry relating to the registration of the firm and to file it along with the original statement which had been filed. The next Section requiring notice is S.69(2). That is in these terms: