Delhi High Court
Pinky Jain & Anr vs Ameya Universal Project Private ... on 18 May, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS) No.4/2017
% Date of Judgment: 18th May, 2017
PINKY JAIN & ANR ..... Appellant
Through Mr.Pravir K. Jain, Adv. with
appellant Pinky Jain in person.
versus
AMEYA UNIVERSAL PROJECT PRIVATE
LIMITED ..... Respondent
Through Mr.Vikas Dhawan, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE REKHA PALLI
SANJIV KHANNA, J (ORAL)
1. This intra court first appeal impugns the order-cum-
judgment dated 1st December, 2016 in CS (OS) No.624/2013 and
connected applications.
2. The impugned order refers and quotes Section 69 of the
Partnership Act, 1932 which reads as under:-
"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 8 [the territories
to which this Act extends], or whose places
of business in 9 [the said territories], are
situated in areas to which, by notification
under 10 [section 56], 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 Presidencytowns, 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."
3. Thereafter, the impugned order records as under:-
"13. This provision prohibits the institution of any
suit in any court by a person who is suing as a
partner in a firm against the firm or any person
alleged to be or have been a partner in the said
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. However, if the firm is
dissolved then non registration of firm does not
come into way and suit can be filed by the partner
of a dissolved firm. In this case, it is not the
plaintiffs‟ case that the firm was dissolved rather
in prayer "b" they claim dissolution of firm.
14. In view of the above discussion, it is apparent
that the suit of the plaintiffs is barred under
Section 69 of the Act. The suit is, therefore, not
maintainable and is dismissed along with the
pending applications."
4. The appellant was the plaintiff in the civil suit and submits
that the suit proceeds on the assumption that the partnership firm
stood dissolved by legal notice dated 12th July, 2012 and, therefore,
clause „(a)‟ to Sub-Section (3) of Section 69 of the Partnership Act,
1932, could be applicable. The argument is that this issue and
question was missed in the impugned order.
5. Counsel for the respondent who is the defendant in the said
suit, submits that the partnership firm was never dissolved in law.
This statement is without prejudice to the contention of the
respondent that there was no partnership firm which ever came into
existence.
6. In view of the statement made by the counsel for the
respondent, we do not think that the impugned order can be
sustained. There is a difference between a suit filed on the basis
and foundation that the partnership firm has been dissolved and
consequently a claim for rendition of account is made; and a suit
by a partner to enforce rights where the partnership has not been
dissolved. Latter a suit can be dismissed, if the partnership firm
was not registered. However, the former suit could not be
dismissed on the ground that the suit is not maintainable being
barred by Sub-Section (1) of Section (2) of Section 69 of the
Partnership Act. It can be dismissed for the reason that the
partnership firm was never dissolved and no prayer for dissolution
has been made.
7. Learned counsel for the respondent submits that the
respondent would raise the objections raised and noted above
before the Single Judge and ask for a preliminary issue to be
framed. It is open to the respondent to make the said prayer before
the Single Judge, in respect of which we express no opinion.
8. Learned counsel for the appellant states that they would
examine as to whether they have to amend the plaint or have to file
a fresh suit after withdrawing the present suit. We do not make
any comment on this aspect also.
9. We, accordingly, allow the present appeal in the aforesaid
terms clearly recording that we have not expressed any opinion on
merits. We have recorded that as per the appellant, the partnership
stood dissolved and whether the statement is legally or factually
correct or not, has to be examined. This aspect has to be decided.
The appeal is disposed of in the above terms. There shall be no
orders as to costs.
10. In order to cut short the delay, the parties are directed to
appear before the Single Judge on 5th July, 2017.
(SANJIV KHANNA)
JUDGE
(REKHA PALLI)
JUDGE
MAY 18, 2017
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