Madras High Court
Unknown vs Press Equipments And Products ... on 5 February, 2021
CRP.NPD.No.2878 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.2878 of 2015
and
MP.No.1 of 2015
India Meters Ltd.,
(Now amalgamated as Samrakshana Electricals Ltd.,
Rep. by its Authorised Signatory Mr.Shivakumar,
No.127, Hydernagar, Hyderabad - 500 072
vide Amalgamation order dated 22.02.2010
in CP.No.275 of 2009 ..Petitioner
Vs.
Press Equipments and Products Company,
Rep. by its Managing Partner,
No.811/B G.N.T.Road,
Redhills,
Chennai - 600 035
..Respondent
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC
against the order dated 18.04.2015 in EA.No.4856 of 2010 in
EP.No.419 of 2009 in OS.No.4866 of 2003 by the learned IX Assistant
Judge, City Civil Court, Chennai.
For Petitioner : Mr.Mahesh Kumar.S
For Respondent : Mr.K.Chakarapani
1/12
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
ORDER
The Civil Revision Petition is arising out of order dated
18.04.2015 passed in EA.No.4856 of 2010 in EP.No.419 of 2009 in
OS.No.4866 of 2003 by the learned IX Assistant Judge, City Civil
Court, Chennai thereby dismissing the petition filed by the petitioner
under Section 47 of CPC.
2. The respondent is the plaintiff. They filed suit for recovery
of money as against the petitioner. Though the petitioner filed written
statement and did not examine any of the witness on the side of the
defendant as well as did not mark any document to defend their case.
The suit was decreed in favour of the respondent herein. Thereafter
the petitioner did not file any appeal suit and the respondent filed
execution petition in EP.No.419 of 2009. In the said petition, the
petitioner filed application under Section 47 of CPC. In the said
petition, the petitioner was examined as PW1. In his deposition he
categorically stated that the respondent is not a registered
partnership firm in terms of Section 69 of Indian Partnership Act.
Therefore, no suit to enforce a right, rising 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 or have
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
been shown in the Register of Firms. Though the respondent annexed
document of registration of their firm as partnership firm, the
respondent failed to mark registration of firm certificate before the
trial court. That apart, the petitioner did not raise the said plea in
their application whereas he categorically deposed before the
execution court. But the court below did not consider the said
deposition and without even discussing the same simply dismissed
the petition. Though, the petitioner raised various ground to set aside
the order passed under Section 47 of CPC, this Court finds no
irregularity or infirmity in the order passed by the court below in
respect of the grounds raised by the petitioner.
3. The only ground raised by the petitioner is that the court
below did not consider the deposition of PW1 that the respondent
firm whether registered or not. In support of their contention, they
marked Ex.P5 and P6 which were received from the Registrar of
Companies and confirmed and stated that the respondent firm is not
a registered one. In this regard, the learned counsel for the petitioner
relied upon the judgment in the case of Sunderlal & Sons Vs.
Yagendra Nath Singh & Anr reported in 1976 SCC Online Cal 28,
wherein it it is held as follows:
4. The second point in opposition to this application
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
for execution was that the firm which was seeking execution
being not a registered firm execution could not be directed.
That the application is by a firm is apparent from the
petition. From the application and the decree and the cause
papers it does not appear that the firm is a registered one. A
point therefore was taken that the firm was not registered.
In answer to this contention a document purported to be a
certified copy of registration of the firm was produced. The
said document does not indicate that this firm of Sunderlal &
Sons was itself registered as such. It is true that in respect
of the firm Santi Swarup Gupta the address of Sunderlal &
Sons at 7/1A, Clive Row, Calcutta, is indicated as the
address but that does not indicate that this applicant firm is
registered under the Partnership Act. In the aforesaid view
of the matter I must proceed on the basis that the firm is
unregistered. If that is so, the question is whether such an
unregistered firm is entitled to maintain this application for
execution. On this context counsel on behalf of the
respondent drew my attention to the provisions of S. 69 of
the partnership Act. The said provision provides as follows:
—
“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
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
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
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-ss. (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 effect—
(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,
or the Provincial Insolvency Act, 1920, to realise the
property of an insolvent partner.”
5. In this case the decree has been passed. If the
decree is a nullity then of course this point can be taken. But
the question is whether a decree passed without this point
having been taken is nullity or not. In view of the language
of the section, in my opinion, a plaint filed by an un-
registered firm would not be a plaint at all. If that be so, all
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
proceedings thereunder will be proceedings without
jurisdiction. Support for this proposition can be had from the
observations of the Division Bench of Madras High Court in
the case of K.K.A. Ponnuchami Goundar v. Mathusami
Goundar AIR 1942 Mad. 252. Similar view was taken in the
case of A.T. Ponnappa Chettiar v. Bodappa Chettiar AIR
1945 Mad. 146, Shriram Sardarmal Didwani v. Gourishankar,
AIR 1961 Bom. 136, Firm Laduram Sagarmal v. Jamuna
Prosad Chaudhuri A.I.R. 1939 Pat. 239 and Dwijendra Nath
Singh v. Gobinda Chandra, AIR 1953 Cal. 497. This
contention, in my opinion, can also be taken at this stage.
Reliance in this connection may be placed on the
observations of the Judicial Committee in the case
of Surajmall Nargoremull v. Triton Insurance Co. Ltd., 52
I.A. 126 and in the case of Gopinath Motilal v. Ramdas AIR
1936 Cal. 133. In the aforesaid view of the matter I am of
the opinion that the firm not being registered the decree
was a nullity and as such cannot be executed.
7. I am therefore, of the opinion that where execution
is in respect of a claim arising out of a suit based on a
contract, the prohibition indicated by S. 69 would apply.
Furthermore, the fact that in sub-clause (b) of sub-s. (4) of
S. 69 of the Act proceedings in execution or other
proceedings incidental to the execution of certain specified
suit as indicated in that sub-clause have been excluded and
no other proceeding of execution has been excluded, in my
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
opinion, is clearly indicative of the fact that the proceedings
in execution which are to enforce rights arising from
contracts would be covered by S. 69 of the Indian
Partnership Act. In that view of the matter I am unable to
accept the contention that execution proceedings are not
covered by the prohibition of S. 69 of the Indian Partnership
Act. Counsel for the decree-holder contended, further, that
prohibition was against the institution of the suit and the
prohibition was not against the consideration of the suit by
the court. In aid of this submission he relied on the
observations of the Patna High Court in the case of Kuldip
Thakur v. Sheomangal Prasad Thakur, AIR 1957 Patna 4 and
also on the Bench decision of the Madras High Court in the
case of Jalal Mahammad v. Kakka Mohammad, AIR 1972
Mad. 86. In the view I have taken of the nature of
prohibition, with great respect, I am unable to accept this
conclusion of the aforesaid two decisions. Jurisdiction as
observed by Lord Reid in the case of Anisminic
Ltd. v. Foreign Compensation Commission, 1969 (2) Appeal
Cases 147, at page 171 of the report is the entitlement of
the tribunal to enter upon the inquiry in question. That
entitlement in my opinion can only arise from a competent
plaint instituted by a plaintiff. If the plaint was incompetent,
there was no plaint. There was no suit. Ex facie and without
any dispute there was no valid suit. A decree based on such
a patent and indisputable error would be an error of
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
jurisdiction and decree passed on such error would be
nullity. If, however, the error depends upon adjudication of
disputes, either of fact or law different considerations would
apply. After all as the Supreme Court has observed that the
question whether there was an error within the jurisdiction
or an error of jurisdiction depends upon the nature of the
error. In view of the express provision and public policy
indicated in S. 69 of the Partnership Act, in my opinion,
entertaining a suit in derogation of that mandatory provision
would defeat the purpose of the statute and such an error
would amount to an error of jurisdiction and a decree
passed on such an error would be a nullity. In aforesaid view
of the matter, in my opinion, on this ground also this decree
cannot be executed. In the premises, this application must
fail. However, in view of the thoroughness with which this
application was argued I direct that the parties should pay
and bear their own costs. Interim ordea, if any, is vacated.
Certified for counsel.
4. He also relied upon the judgment in the case of
M/s.Konark Cylinders and Containers Pvt Ltd Vs. Suresh
Gangadas Bhai Patel and Others reported in 2012 SCC Online Ori
34, wherein it is held as follows:
16. In view of the aforesaid documents which have
been submitted along with the plaint and relied upon by the
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
plaintiffs in support of their contention, this Court is of the
view that no further evidence is needed to prove/establish
that the transaction in question in respect of which
Summery Suit No. 25 of 2009 was instituted in the Court
below was entered into between the partnership firm Super
Impex and the petitioner-Company and the said firm
admittedly is an unregistered firm. Hence, if any suit for
recovery of money with regard to transaction of purchase
and sale entered into between Super Impex and petitioner-
Company is to be filed the same should be filed by Super
Impex and not by the present plaintiffs in their individual
capacity. Since Super Impex is an unregistered firm, the suit
cannot be maintained as it is hit by Section 69(2) of the
Indian Partnership Act. Therefore, since the above three
plaintiffs are carrying on business in partnership in the name
and style of “Super Impex”, they cannot maintain a suit
against the petitioner-Company for recovery of money due
from petitioner-company in view of bar under Section 69(2)
of the Indian Partnership Act.
18. Law is also well settled that when the statute
provides for a particular procedure, the authority has to
follow the same and is not permitted to act in contravention
of the prescribed provisions. Other methods or modes of
performance are impliedly and necessarily forbidden. The
aforesaid settled legal proposition is based on a legal maxim
“Expressio unius est exclusion alteris”, meaning thereby that
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
if a statute provides for a thing to be done in a particular
manner, then it has to be done in that manner and in no
other manner and following other course is not permissible.
(See Taylor v. Taylor, (1876) 1 Ch.D. 426, Nazir
Ahmed v. King Emperor, AIR 1936 PC 253, Ram Phal
Kundu v. Kamal Sharma; and Indian Banks
Association v. Devkala Consultancy Service, AIR 2004 SC
2615)
19. If decree is a nullity such stand can be
taken/raised at any stage. The Allahabad High Court in the
case of Ram Adhar v. Ram Kirat Tiwari (supra) held that
where two plaintiffs carrying out business of manufacturing
bricks in partnership, filed a suit to recover the amount due
to the partnership from the defendant for the purchase of
bricks by him, the suit would not be maintainable on account
of the bar under Section 69(2) because their partnership
was not a registered one.
22. In the petition filed under Section 47, CPC though
the petitioner has raised a point that the decree passed is a
nullity, it has not taken specific stand, which has been taken
in the present revision petition and the same goes to root of
the case. Therefore, in the interest of justice, the matter is
remitted back to the Executing Court with liberty to the
petitioner-Company as well as the opposite parties to raise
all the points before the Executing Court in support of their
contentions and the Executing Court is directed to consider
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
the same and pass appropriate orders keeping in view the
observations made in the preceding paragraphs.
5. In the above judgment, it is held that where execution is
in respect of a claim arising out of a suit based on a contract, the
prohibition indicated by Section 69 of the Indian Partnership Act
would apply. Further held that the proceedings in execution which are
to enforce rights arising from contracts would be covered by Section
69 of Indian Partnership Act. Therefore, the execution court failed to
consider the contentions of the petitioner in respect of the
registration of respondent's firm.
6. In view of the above discussion, the civil revision petition
is allowed and the order dated 18.04.2015 passed in EA.No.4856 of
2010 in EP.No.419 of 2009 in OS.No.4866 of 2003 by the learned IX
Assistant Judge, City Civil Court, Chennai is set aside. The matter is
remanded back to execution court for fresh disposal. It is made clear
that both the parties are permitted to let in fresh evidence with
proper documents in respect of registration of firm alone.
Consequently, connected miscellaneous petition is closed. No order as
to costs.
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
05.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
G.K.ILANTHIRAIYAN,J.
lok
To
The IX Assistant Judge,
City Civil Court, Chennai.
CRP.NPD.No.2878 of 2015
http://www.judis.nic.in
CRP.NPD.No.2878 of 2015
05.02.2021
http://www.judis.nic.in
