M/S. Pragati Developers ... vs M/S. Cornis Realty Pvt. Ltd. Thr. ...
2023 Latest Caselaw 3139 Bom

2023:BHC-AS:9684                                      1/3                            17-ia-2288-23.doc




                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION
                                INTERIM APPLICATION NO.2288 OF 2023
                                                 IN
                                    FIRST APPEAL NO.1469 OF 2019

           M/s Pragati Developers (through its partner)
           Jakir Majid Hoble & Anr                               ....Applicants/Appellants

                     V/s.


           M/s Cornis Realty Pvt Ltd through its
           Director Yogesh Vasant Wani                           ...Respondents


                                                    WITH
                                     CIVIL APPLICATION NO.3404 OF 2019
                                                     IN
                                       FIRST APPEAL NO.1469 OF 2019

                                             ----

Mr. R. D. Soni a/w Mr. Sujay Gawade and Ms Mudita Pawar i/b Shree & Co. for Applicants Mr. Hitesh Vyas for Respondents

----

CORAM : K.R. SHRIRAM & RAJESH S. PATIL JJ DATED : 29th MARCH 2023

P.C. :

1 Today only two interim applications are listed, one of which, is for

extension of stay. With the consent of the counsel, we decided to take up

the appeal itself for admission.

2 This appeal is impugning a judgment dated 6 th May 2019 passed by

Joint Civil Judge Senior Division, Pune, holding that appellants' suit was not

maintanable since appellant no.1 was not a firm registered as per the

Meera Jadhav

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mandate of Partnership Act and the persons suing were not shown in the

Register of Firms as partners of the firm as per the mandate of Section 69(2)

of Indian Partnership Act 1933. Admittedly, the firm was not registered on

the date the suit was instituted. The suit was instituted on 27 th March 2014

in the name of partnership firm under the name and style of Pragati

Developers. The firm was registered on 13 th November 2018 during the

pendency of the suit and when appellants' witness was under cross-

examination.

3 The law is settled law that on the date the suit is instituted in any

court by or on behalf of a firm against third party to enforce right arising

from a contract, the firm should be registered and the persons suing should

be shown in the Register of Firms as partners in the firm. The subsequent

registration cannot cure that defect in view of the plain language of Section

69 of the Indian Partnership Act (M/s Shreeram Finance Corporation Vs.

Yasin Khan & Ors.1 and Delhi Development Authority Vs. Kochhar

Constructions Work2 ).

4 The suit filed has been for avoidance of a Sale Deed dated 15 th

October 2013 registered at Serial No.1909 of 2013 at the office of Sub-

Registrar, Haveli No.26. Appellants had also sought declaration about the

status of the said transaction, perpetual injunction and payment of balance

consideration amount being alternative relief. Therefore, indisputably the

suit filed was for enforcement of right arising from the contract.

1. (1989) 3 SCC 476
2. (1998) 8 SCC 559

Meera Jadhav




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5         The Trial Court has rightly come to the conclusion that the prohibition

contained in Section 69(2) of the Indian Partnership Act is a bar to the suit

and that the suit is not maintainable.

6 In the circumstances, appeal dismissed. Appellant to pay a sum of

Rs.1,00,000/- as cost to respondent and this amount shall be paid within

four weeks from today by way of cheque drawn in favour of advocate for

respondent.

7 Consequently, interim applications also stand disposed.

(RAJESH S PATIL, J.)                                  (K.R. SHRIRAM, J.)




Meera Jadhav