Bombay High Court
Kolhapur Ice & Cold Storage Co. ... vs Rajput Dairy Through Brijlal ... on 21 November, 2013
Bench: R.M. Savant
wp-249-2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.249 OF 2013
Kolhapur Ice & Cold Storage Co. through Partner ..Petitioners
Vs.
Rajput Dairy through Brijlal Uddip Singh ..Respondents
Mr. Amit Borkar for the Petitioners
Mr. Chetan Patil for the Respondents
CORAM : R. M. SAVANT, J.
DATE : 21st November 2013
ORAL JUDGMENT
1 Rule, with the consent of the Learned Counsel for the parties made it
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court is invoked against the order dated 10-
10-2012 passed by the Learned 2nd Joint Civil Judge, Senior Division, Kolhapur,
by which order, the application Exhibit 136 filed by the Petitioners herein for
treating the suit as deemed to be filed on 27-8-2010, when the deed of
partnership was registered, has been rejected by the Trial Court.
3 The facts necessary to be cited for adjudication of the above Petition can
be stated thus:
The Petitioner is the original Plaintiff whereas the Respondents are the
original Defendants. The Suit in question being Special Civil Suit No.200 of
1997, has been filed by the Petitioner for recovery of the amount for the goods
supplied by the Petitioners to the Respondents/Defendants. The Defendant
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No.1 filed its Written Statement and took an objection to the maintainability of
the Suit on the touch stone of Section 69(2) of the Indian Partnership Act, on
the ground that the Plaintiff was an unregistered firm. Upon the said objection
being taken, the Plaintiff sought to get over it by filing the instant application
Exhibit 136 contending therein that since the firm has been registered later i.e.
on 27-8-2010, the Suit be deemed as filed on the said day and therefore the
defect in the filing of the Suit would stand removed. The said application filed
by the Petitioner was objected to on behalf of the Defendant No.1 by
contending that the defect of the Suit being filed on behalf of an unregistered
firm, could not be removed. The Trial Court considered the said application
Exhibit 136 filed by the Petitioner and as indicated above has by the impugned
order dated 10-10-2012 rejected the same. In the Trial Court the Plaintiff relied
upon the judgment of the Apex Court reported in AIR 1998 Supreme Court
3085 in the matter of Raptakos Brett and Company Ltd. Vs. Ganesh
Property. Whereas on behalf of the Defendants reliance was placed on the
another judgment of the Apex Court reported in AIR 1989 Supreme Court
1769 in the matter of M/s. Shreeram Finance Corporation Vs. Yasin Khan &
Ors. as also the Judgment of a Division Bench of this Court reported in AIR
2006 (Bom) 106 in the matter of M/s. Balaji Construction Co. Vs. Mrs. Lira
Siraj Shaikh. The Trial Court has considered the said application Exhibit 136
on the touchstone of the law which was cited before it and ultimately came to
a conclusion that the Suit filed on behalf of the unregistered firm, was not
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maintainable.
4 Before this Court also, the Learned Counsel appearing on behalf of the
Petitioner Mr. Borkar sought to place reliance on the Judgment in M/s.
Raptakos Brett (supra) and especially paragraph 30 thereof. The Learned
Counsel however would fairly contend that the observations made in
paragraph 30 are obiter but would nevertheless be binding on this Court, in so
far as the aspect as to whether the defect would stand removed if the firm is
registered later on, is concerned.
Per contra Mr. Patil, the Learned Counsel appearing on behalf of the
Respondents herein by placing reliance on the Judgment in Shriram Finance
(supra) would contend that the proposition of law as enunciated by the Apex
Court in the said Judgment still stands as the Apex Court in the Judgment in
M/s. Raptakos Brett (supra) has in terms observed that it does not deem it fit
to either refer the said issue to a larger bench to reconsider the decision in
Shriram Finance (supra). It is the submission of the Learned Counsel that
since there is a direct Judgment of the Apex Court which deals with the said
issue, the obiter of the Apex Court in Raptakos Brett (supra) cannot be relied
upon by the Petitioner.
6 Having heard the Learned Counsel for the parties, I have considered the
rival contentions. In so far as the issue which is involved in the above Petition
namely whether the subsequent registration of the partnership deed would
cure the defect of filing of the Suit in the name of an unregistered firm and
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whether the Suit can be deemed to have been filed on the date when the firm
has been registered, the said issue is no more res integra and is covered by the
judgment of the Apex Court in Shriram Finance (supra). The Apex Court in
the said case was concerned with a partnership firm wherein a partner was
inducted and two minors had been admitted to the benefit of the partnership,
notice of which was not given to the Register of Firms till much after the filing
of the Suit. It is in the said context the Apex Court held that though the
cognizance of the new partners has been taken by the Register of Firms later
on, however, in view of the fact as on the date when the suit was filed the
persons who had ceased to be partners were on record, the bar of Section
69(2) would apply.
7 In so far as Judgment in Raptakos Brett (supra) is concerned, The said
case concerns a suit for possession filed by an unregistered firm against the
erstwhile lessee. The said claim was based on breach of the covenant to restore
possession in the lease deed as well as right of lessor to get possession under
the law of the land i.e Section 108(q) read with Section 111(9) of the Transfer
of Proeprty Act. An objection was raised to the maintainability of the suit on
the ground that the partnership firm was not registered.
The Apex Court framed two issues which are found in paragraph 8 of the
Judgment viz :
(i) Whether the suit filed by the respondent was barred under Section
69, sub-section (2) of the Partnership Act either wholly or in part.
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(ii) if the suit was so barred, whether subsequent registration of the
Plaintiff's firm under the Partnership Act could revive the suit or to make it
competent at least from the date on which such registration is pending the suit
was obtained by the respondent-firm.
The Apex Court held that since the plaint as framed by the Plaintiff on a
composite cause of action having two parts one part refers to the breach of
covenant on the part of the defendant being covenants 14 and 17 of the lease
deed and the second part of the cause of action being based on the statutory
obligation of the defendant when it failed to comply with its statutory
obligation under Section 108(q) read with Section 111(1) of the Transfer of
Property Act. The Apex Court held that in so far as the second cause of action
is concerned, it definately does not arise out of the erstwhile contract as what
the Plaintiffs are seeking was enforcement of the legal right to possession
against the erstwhile lessee under the provisions of Section 108(q) read with
Section 111(a) of the Transfer of Property Act and the corresponding statutory
obligation of the defendants under the same statutory provisions. Hence in so
far as the said cause of action is concerned, the Apex Court held that the same
stands completely outside the sweep of Section 69(2) of the said Act and the
suit was maintainable. The Apex Court accordingly partly answered issue No.1
in favour of the Plaintiff and partly in favour of the Defendant No.1. After so
answering issue No.1 the Apex Court held that it was not necessary for it to
express any final opinion on the second issue in the facts of the said case. In
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fact, the Apex Court has specifically observed in paragraph 30 of the Judgment
that it does not wish to make a reference to a larger bench for reconsideration
of the decision in Shriram Finance (supra). The Apex Court lastly observed
that with the said observations it brings down the curtains on the said
controversy. Hence though some observations have been made by the Apex
Court in Raptakos Brett (supra) as rightly contended by the Learned Counsel
Mr. Borkar, the said observations can be said to be obiter. It is also required to
be noted that the said observations were made by the Apex Court having
regard to the practical difficulties that a party would face after litigating for a
period of time and then being told that the suit was not maintainable.
8 In my view, in the light of the Judgment of the Apex Court in Shriram
Finance (Supra), which is directly on the point, the obiter of the Apex Court in
Raptakos Brett (supra) would not further the case of the Petitioners in so far
as the relief which it has sought namely that the Suit be deemed to have been
filed on the date when the firm was registered. Hence the order passed by the
Trial Court rejecting application Exhibit 136 cannot be faulted with. No case
for exercise of Writ Jurisdiction is made out. The Writ Petition is accordingly
dismissed. Rule discharged with no order as to costs.
[R.M.SAVANT, J]
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