Madhya Pradesh High Court
M/S. Akash Road Lines Thr vs M/S. Sudarshan Motors Thr on 9 December, 2021
Author: Satish Kumar Sharma
1 CR-61-2017
The High Court Of Madhya Pradesh
CR No. 61 of 2017
(M/S. AKASH ROAD LINES THR Vs M/S. SUDARSHAN MOTORS THR)
Gwalior, Dated : 09-12-2021
Shri D.K.Agrawal, counsel for the applicant.
Shri Abhishek Bhadoria, counsel for the respondent.
This civil revision is filed against the order dated 3.5.2017 passed by
learned X Civil Judge Class I Gwalior in Civil Suit No.11-B of 2014 whereby,
the application of the defendant/applicant under Order 7 Rule 11 of CPC has
been dismissed.
Heard learned counsel for the parties and perused the record.
Learned counsel for the applicant/defendant submits that the civil suit
has been filed by the partnership firm which is not registered, therefore, the
same is barred under Section 69 of the Indian Partnership Act, 1932. Learned
trial court has erred in dismissing the application of the applicant/defendant.
The revision petition deserves to be allowed. He has placed reliance on the
judgments passed by Hon'ble Apex Court in the cases of Delhi
Development Authority Vs. Kochhar Construction Work and Another
reported in (1998) 8 SCC 559, The Andhra Pradesh Co-operative
Wool Spinning Mills Limited and another Vs. G.Mahanandi and
Company Wool Merchants and others reported in AIR 2003 AP 418,
U.P. State Sugar Corpn. Ltd. Vs. Jain Construction Co. and another
reported in AIR 2004 SC 4335 and by this Court in Mahavir Trading
Co. Vs. M/s Modi Oil Mills reported in 1989 MPWN 174 and
Hirendra Bhola Vs. M/s Gulati Marketing Co. and Another reported in
AIR 2007 MP 165.
Learned counsel for the non-applicant/plaintiff submits that plaintiff
firm does not essentially require registration. The present suit has been filed
simplicitor for recovery of money due against the applicant-defendant on the
basis of dishonour of cheques issued by him in favour of the plaintiff
meaning thereby to enforce statutory liability. The dispute does not relate to
2 CR-61-2017
any contract which may attract bar under Section 69 of the Indian Partnership
Act, 1932. Therefore, the suit is very well maintainable in the light of the legal
position in Haldiram Bhujiawala and Another Vs. Anand Kumar
Deepak Kumar and Another in Case No.Appeal (Civil) 1786 of 2000
on 28.2.2000, Karnataka State Financial Corporation Vs.
N.Narasimahaiah and Others reported in AIR 2008 SC 1797, Union of
India and Others Vs. Sicom Ltd. and Another reported in (2009) 2 SCC
121 and by the High Court of Allahabad in Smt. Dropadi Devi Vs. Ram
Das and Others reported in AIR 1974 Allahabad 473, by Patna High
Court in Kapildeo Rai Vs. Pt. Gopal Dutt Mishra and Another reported
in AIR 1961 Patna 195 and by Kerala High Court in Kerala Arecanut
Stores Vs. M/s Ramkishore and Sons and Another reported in AIR
1975 Kerala 144.
Having heard learned counsel for both the sides and on perusal of the
record, it is evident from the impugned order that the trial court has already
framed an issue in this regard which is to be decided on the basis of the
evidence to be led by the parties. The objection raised by the defendant has
not yet been decided by the trial court on merits. Therefore, it is not proper
for this court to comment upon the contention put-forth by the parties. The
petition is dismissed being premature.
Needless to say that the issue already framed with regard to the
objection of the defendant shall be decided by the trial court at the time of
final disposal of the suit in-accordance with law.
(SATISH KUMAR SHARMA)
JUDGE
Rks
RAM KUMAR SHARMA
2021.12.11 11:16:11
+05'30'
