Delhi High Court
M/S Kuamr Associates & Ors vs Sohan Pal on 5 December, 2008
Author: Pradeep Nandrajog
6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.643/2004
Date of decision: 05th December, 2008
%
M/S KUAMR ASSOCIATES & ORS .....Appellants
Through : Mr. Anujay Tiwari, Adv.
versus
SOHAN PAL ..... Respondent
Through : None.
CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. On 11.09.2008 following order was passed: -
"CM No.15997/2004
1. First appellant, stated to be a registered
partnership firm of which appellants No.2 and 3 are
claimed to be the partners filed a suit for recovery
under a contract.
2. A defence was predicated in the written
statement that the partnership firm being not
registered the suit was not maintainable being hit by
the bar of Section 69 of the Partnership Act.
Authority of the person suing on behalf of appellant
No.1 was also questioned.
3. No issue was struck by the learned Trial Judge
pertaining to the defence under Section 69 of the
Partnership Act. An issue was however struck
pertaining to the authority of the person instituting
the suit on behalf of the partnership firm.
4. Holding that a partner of a firm is always
entitled to sue on behalf of the firm, the issue
pertaining to the authority of the person suing on
behalf of the firm has been decided by dove-tailing
the same on the plea raised in the written statement
that being an unregistered firm the suit was not
maintainable.
5. By and under CM No.15997/2004 it is stated
that inadvertently evidence pertaining to the firm
being a registered firm with the Registrar of Firms
and that appellants No.2 and 3 were its' partners was
not led. It is urged by learned counsel for the
appellants that since no issue was struck on the
defence pleaded relatable to Section 69 of the
Partnership Act, appellants remained under the
impression that the defendant had given up said
defence. Counsel urges that since the learned Trial
Judge has dove-tailed the plea relating to Section 69
of the Partnership Act, on the issue of authority of the
partner of the firm, suing on behalf of the firm,
appellant be permitted to lead additional evidence
and prove the factum of the firm being registered
and the names of its' partners.
6. We note that the appellants have succeeded on
all issues and have lost the battle on account of the
afore-noted technical defence.
7. We additionally note that the respondent has
chosen to remain ex-parte before us by not entering
appearance in spite of being served.
8. We allow the application. The appellant is
permitted to lead additional evidence and prove that
the appellant No.1 is a firm registered with the
Registrar of Firms and that the appellants No.2 and 3
are its' partners.
RFA 643/2004
1. List before the Registrar on 6.11.2008 for
recording evidence.
2. The appellant No.1 shall summon the officer
concerned from the office of the Registrar of Firms
and lead evidence to prove what is intended to be
proved by way of CM No.15997/2004.
3. The appeal would be listed in Court on
5.12.2008."
2. The witness from the office of Registrar of Firms was
examined on 04.12.2008. Form B pertaining to M/s. Kumar
Associates being a firm duly registered with the Registrar of
Firms vide registration No.826/2003 dated 1st May, 2003 has
been proved as Ex.PW2/A.
3. Form A showing that Shri Vijay Kumar and Shri Jitender
Singh were its partners has been proved as Ex.PW2/B. An
application submitting for the firm to be registered and
disclosing therewith the name of its two partners dated
24.04.2003 has been proved as Ex.PW2/C.
4. We note that the suit was instituted after the firm was
registered.
5. For the reason recorded in our order dated 11 th
September, 2008 and noting that the appellants have
otherwise succeeded on all issues save and except the
technical issue pertaining to the authority of the person suing
on behalf of the partnership firm and noting that the appellant
No.1 is a partnership firm duly registered with the Registrar
Firms and that appellant Nos.2 and 3 are registered partners
thereof, we allow the appeal and reverse the finding returned
against the appellant pertaining to issue No.3.
6. We hold that the appellant No.1 has successfully
established of being a duly registered firm and that appellant
Nos.2 and 3 are its partners duly showing as such in the
record of the Registrar Firm.
7. Since in all other issues the appellants have succeeded
and noting that there is no cross-objection, we decree the suit
filed by the appellant in favour of the appellant and against
the respondent in sum of Rs.8,25,000/- (in conformity with the
finding of the Learned Trial Judge on issue No.5) together with
interest @ 12% per annum with effect from 24.07.2003 till
realization.
8. The appellant is entitled to cost in the appeal.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
DECEMBER 05, 2008
mk
