M/S Bharat Salt Company vs M/S Bhagyalaxmi Brinechem Pvt Ltd
2021 Latest Caselaw 9131 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Other Original Suit No. 1/2021

M/s Bharat Salt Company, A Partnership Firm, Having Its Opposite Railway Siding, Ward No.1, Nawa City - 341509, Rajasthan Represented By Its Partner, Piyush Purohit S/o Raj Kumar Purohit, Age 27. Also At- M/s Bharat Salt Company Station Road, Phalodi, Tehsil Phalodi, District Jodhpur (Raj.) E- [email protected]

----Petitioner Versus M/s Bhagyalaxmi Brinechem Pvt Ltd, A Company Incorporated Under The Indian Companies Act, 1956, Through Its Managing Director/directors/manager, Having Its Registered Office At Khasra No.720/112,village Govindi, Tehsil Nawa City, Dist. Nagaur (Rajasthan). E-Mail- [email protected]

----Respondent

For Petitioner(s) : Dr. Ashok Soni.

Mr. Divyanshu Choudhary.

For Respondent(s)         :     Mr. Rakesh Sharma.
                                Mr. Kaman Verma.



            HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

08/04/2021

The matter comes up on two applications filed by the

defendant, one under Section 69(2) of the Indian Partnership Act,

1932 ('the Act of 1932') and another under Order VII, Rule 11

CPC read with Sections 9 and 151 CPC read with the Commercial

Courts Act, 2015 seeking rejection of the plaint.

It is, inter alia, indicated that the suit has been filed by the

plaintiff claiming itself to be a partnership firm, however, as the

plaintiff-firm is an unregistered firm, the filing of the suit is barred

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under Section 69(2) of the Act of 1932 and as such the plaint was

liable to be rejected.

In the application filed under Order VII, Rule 11(d) CPC, it is

indicated that the application was barred under the provisions of

the Commercial Courts Act, 2015 and as such the plaint was liable

to be rejected.

Learned counsel for the defendant made submissions that as

the plaintiff has failed to aver in the suit about the registration of

the firm, the suit was not maintainable and was liable to be

rejected.

Further submissions were made that as the dispute is a

commercial dispute and of the specified value, the same was

required to be tried by commercial court, however, it is submitted

that the said application was filed when the suit was pending

before the courts at Makrana and in view of the subsequent event,

whereby on account of provisions of Section 104 of the Patents

Act, 1970 ('the Patent Act'), the matter has been transferred to

the High Court, the application has lost its efficacy.

Learned counsel for the plaintiff made submissions that for

filing a suit for injunction/enforcing the right under the Patent Act,

there is no necessity of the firm being registered as bar under the

provisions of Section 69(2) of the Act of 1932 pertains to contracts

between the unregistered firm and others, which is not the case

here. In this regard, reliance has been placed on judgment of

Hon'ble Supreme Court in Haldiram Bhujiawala & Anr. v. Anand

Kumar Deepak Kumar & Anr.: (2000) 3 SCC 250.

Further submissions have been made that irrespective of the

above, the plaintiff-firm has been registered and a certificate of

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registration dated 20.01.2020 and previous list of partners since

1977 have been placed on record and, therefore, the application is

liable to be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The document though filed subsequent to the filing of the

plaint by the plaintiff, clearly brings out that the firm is registered

and as such the plea raised in this regard based on provisions of

Section 69(2) of the Act of 1932 has no substance.

Besides the above, Hon'ble Supreme Court in the case of

Haldiram Bhujiawala (supra) in a similar nature case, where the

case arose under the Trademark Act, while dealing with similar

issue came to the conclusion that the bar under Section 69(2) of

the Act of 1932 pertains to the cases arising from a contract

between the unregistered partnership firm and third party

defendant, the same has no application to filing of a case of

injunction in relation to a registered trademark and its

infringement.

In view thereof, the submissions made based on purported

non-registration of plaintiff-firm apparently has no substance, the

application filed under Section 69(2) of the Act of 1932 is,

therefore, dismissed.

As the application filed under Order VII, Rule 11(d) CPC in

view of the changed circumstances, has already been not pressed,

the same is also dismissed.

List the matter on 03.05.2021 for arguments on application

filed by the plaintiff under Order XXXIX, Rule 1 and 2 CPC and for

framing of the issues in the suit.

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Office is directed to delete the names of learned counsel

Mr. Vipul Singhvi, Mr. Vikas Balia and By Post from the cause list

and reflect the name of Mr. Divyanshu Choudhary as counsel

appearing for the plaintiff in the cause list.

(ARUN BHANSALI),J

90-PKS/-

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