Md Mofazzular Rahman & Ors vs Md. Sarfaraz Alam& Ors
2021 Latest Caselaw 355 Cal/2

                                1



                        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

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

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

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

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.

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.

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.

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.

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

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

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

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

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

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,--

(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

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

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."

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

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

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

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.

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

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

(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

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

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.]