Delhi High Court
Preeti Chandra vs Kauten Kraft on 21 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 165/2013 & CM No.2217/2013
% 21st August , 2014
PREETI CHANDRA ......Petitioner
Through: Mr. S.Chopra, Advocate
VERSUS
KAUTEN KRAFT ...... Respondent
Through: Mr. Manish Makhija, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India is
filed by the objector who is objecting to the execution of the judgment and
decree dated 6.10.2008.
2. The memo of parties in the suit was as under:-
"IN THE COURT OF SHRI NARINDER KUMAR: ADDL.
DISTRICT JUDGE:DELHI
SUIT NO 356 OF 2004
M/S. KAUTEN KRAFT PLAINTIFF
Versus
CM(M) 165/2013 Page 1 of 3
M/S. IKON CLOTHING INC. & ORS. DEFENDANTS
MEMO OF PARTIES
M/s Kauten Kraft
A Registered partnership firm
Having its office at:
71/1, Shivaji Marg,
New Delhi-110015 ....Plaintiff
Versus
1. M/s Ikon Clothing Inc.
1407, Broadway, Suite 1708
New York-110018(USA)
2. M/s Motif Inc.
B-30, Soami Nagar
New Delhi
3. Wells Fargo Bank
Minneapolis
USA ... Defendant"
3. The operative portion of the judgment dated 6.10.2008
decreeing the suit for recovery of money reads as under:-
" In view of the above discussion and findings, this court
comes to the conclusion that plaintiff is entitled to recovery of
US$ 18781.92 and that too from defendant No.1 only.
As a result, suit of the plaintiff is decreed, with cost, in its
favour and against defendant No.1 for recovery of US$
18781.92 with interest @ Rs.12% per annum from the date of
institution of the suit, till its realization.
As regards defendant No.2 suit of the plaintiff is hereby
dismissed.
Decree sheet be prepared and file be consigned to record
room."
CM(M) 165/2013 Page 2 of 3
4. The objector has already filed objections that she is not liable
on behalf of defendant no.1/judgment debtor no.1 as she was only a Director
in the defendant no.1/judgment debtor no.1/company, however, one more
objection/application was filed to dismiss the execution petition on the
ground that the plaintiff/decree-holder is not a registered partnership firm
and therefore, the suit could not have been filed. No doubt, an unregistered
partnership firm cannot file a suit for recovery of money based on a contract,
however, this is a defence which has to be raised in the suit and not in the
executing court. A defence under Section 69 of the Indian Partnership Act,
1932 is one which is capable of being waived and there is no inherent lack of
jurisdiction of the court if the partnership firm is not registered and all such
objections have necessarily therefore to be raised in the suit and not before
the executing court.
5. In view of the above, I do not find any error in the impugned
order dated 7.12.2012 dismissing the objections against the execution on the
ground that plaintiff is not a registered partnership firm. It is settled law that
executing court cannot go behind the decree.
6. Dismissed.
AUGUST 21, 2014 VALMIKI J. MEHTA, J.
ib
