Spraylac Paints Corporation vs Ishwar Chander Kapoor
1988 Latest Caselaw 321 Del

JUDGMENT

A.B. Saharya, J.

(1) In this second appeal, a question has arisen whether a certified copy of an entry in the Register of Firms ceases to be proof of the fact of registration of a partnership firm because of i spelling mistake in the firm name in the copy.

(2) The appellant-plaintiff filed a suit against the respondent-defendant for recovery of money with interest and costs etc. Trial of the suit proceeded on the following issues : "1. Whether plaintiff's firm is a "registered partnership firm and Shri R.B. Maira is competent to file the suit on behalf of the plaintiff ? 2. Whether plaintiff did not pay Rs. 3000.00 to the defendant as advance of pay ? 3. Whether plaintiff illegally terminated the services of the defendant, hence defendant is not liable to pay the amount ? 4. Whether the plaintiff is entitled to interest ? If so, at what rate ? 5. Relief."

(3) The trial court decided all the issues in favor of the plaintiff and decreed the suit against the defendant with costs. The Lower Appellate Court noticed the evidence on issue No. 2 and 3, it came to the conclusion that the outstanding amount can be recovered by a civil suit and that the amount due and payable has to be determined after excluding deduction made by the plaintiff from- salary paid to the defendant. But it did not go further into that matter nor did it deal with issue No. 4 as it reversed the finding of trial court on issue No. I, and, on that ground alone, accepted the appeal of the defendant, set aside the judgment and decree of the trial court and dismissed the suit by the judgment and decree dated 6th March 1973, from which the present appeal has arisen.

(4) To prove the first issue, plaintiff produced Exhibit P-l which is a certified copy, in Hindi, of an entry relating to the plaintiff firm in the Register of Firms. It shows, inter alia, name of the plaintiff firm at serial No. 475, 31st December, 1949 as the date of registration and 9, Faiz Bazar, Delhi as the address of the firm. It also states particulars of four partners, namely, Rajender Nath B. Maira, Darbari Lal Bhasin, Rajiv Nath Maira and Ravi Kumar Bhasin. 1st June 1948 is mentioned as the date of joining of the first two, and, 1st April, 1968 as that of the other two partners.

(5) On perusal of Exhibit P-l it appears that in the firm's came 'Spraylac', for the last alphabet 'C', a letter having the phonetic effect of 'sa' instead of 'ka' in Hindi has been used in the certified copy. The trial court found that this "i

(6) 6. Mr. Vijay Kishan, the learned counsel for the appellant, has contended (1) that the defendant could not question the competency of the suit filed in the name of the firm in accordance with Order Xxx of the Code of Civil Procedure as he never invoked the provisions of Rule I and Rule 2 of the said Order for disclosure of the names and addresses of the persons constituting the firm on whose behalf the suit was instituted ; and, (2) that in any event, the 'discrepancy' in the plaint and in Exhibit P-l in respect of a letter in the firm name is not fatal, and, on this short ground the suit should not have been dismissed.

(7) It is unnecessary to go into the first proposition of Mr. Vijay Kishan at this stage. The second argument of the learned counsel has considerable force in it. Section 68 of the Indian Partnership Act, 1932, lays down rules of evidence. It reads as follows:- "68.(1) Any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated. (2) A certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein."

(8) It is clear, on bare reading of Sub-section (2), that the fact of the registration of a firm can be proved by producing a certified copy of the entry relating to the firm in the Register of Firms. It is unnecessary to produce any other evidence to prove the fact. If it can be shown that the copy is of an entry relating to a particular firm, then such a copy can be produced in proof of the registration of that firm. What is important is the identity of the registered firm. Once that is established, any error or omission in spelling the name of the firm in the certified copy cannot affect its probative value as proof of the fact of registration of the firm as postulated by Sub-section (2) of Section 68 of the Indian Partnership Act. Therefore, use of one or the other letter in the firm name in Exhibit P-l does not, in any way, derogate from its admissibility, reliability, efficacy and sufficiency as proof of the fact of registration of the plaintiff firm. The so called 'discrepancy' in it is merely a clerical error in spelling the firm name. Merely because of this mistake it cannot be said that the registered firm is different from the plaintiff firm, in whose name the suit has been filed in accordance with Order Xxx of the Code of Civil Procedure, particularly when there is no controversy regarding the number and the names of the partners who collectively constitute the firm, as also, regarding the address of the firm.

(9) I find, for the aforesaid reasons,that the difference in the use of the last alphabet in the name of the plaintiff 'Spraylac' in the plaint and in Exhibit P- l-really makes no difference, and that the Lower Appellate Court erred in concluding that "the plaintiff firm is not registered under the Partnership Act." This finding is set aside. Consequently, the appellate judgment and decree is reversed and is set aside, the appeal of the defendant and the suit of the plaintiff are restored. Since the first appeal was disposed of only upon the point regarding proof of the fact of registration of the plaintiff firm and the decision on that point has been reversed, the case is hereby remanded to the Lower Appellate Court to decide the remaining questions on merits of the appeal.

(10) The parties are directed to appear before the Lower Appellate Court on 5th December, 1988 for hearing of the first appeal. However, since the respondent-defendant had preferred the first appeal from the original decree and he has been proceeded ex-parte herein, the Lower Appellate Court shall send to him, within one week of receipt of the record from this Court, a notice of the aforesaid day fixed for hearing of the appeal.

(11) This appeal is accordingly, allowed with costs