Uttarakhand High Court
Rajendra Prasad Khanduri ... vs Safique Ahmed And Others ... on 24 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Second Appeal No. 40 of 2005
Rajendra Prasad Khanduri ...Defendant/Appellant
Vs.
Safique Ahmed and Others ...Plaintiffs/Respondents
Advocates : Mr. Pankaj Purohit, Advocate, for the appellant.
Hon'ble Sharad Kumar Sharma, J.
The defendant (appellant herein), had preferred this Second
Appeal, questioning the propriety of the judgement dated
12.04.2005, as was passed by the Court of District Judge,
Chamoli, in Civil Appeal No. 6 of 2002, Rajendra Prashad
Khanduri Vs. Safique Ahmed and others, whereby, the appeal,
which was preferred by the defendant/appellant has been
dismissed and as a consequence thereto, it has resulted into the
affirmation of the judgment of the learned trial Court dated
31.10.2002, as was rendered in Original Suit No. 41 of 1999,
Rafique Ahmed (through LRs) Vs. Rajendra Prasad Khanduri
and another.
2. The suit in question was instituted by the plaintiffs
(respondents herein) on 14.05.1999, praying for a grant of a
decree for recovery of money, as mentioned in para 10 of the
plaint, seeking decree to the effect that a total amount of Rs.
46,500/- may be directed to be recovered from the
defendant/appellant. It was a money, which was allegedly said to
be taken by the parties for the purposes of purchase of a Truck,
the business in which they were engaged in terms of an
agreement of the partnership deed dated 19.06.1995.
3. The factum of entering into a partnership deed itself has
been admitted by the plaintiffs in the suit in para 1 of the plaint,
and once taking of a financial assistance for the purposes of
purchasing the Truck bearing No. USQ-0-864, for total amount
of Rs. 2,00,000/- was under the terms of the partnership deed,
and hence any financial implications, which will be flowing
interse between the partners, would be from or governing inter se
financial assistance between the partners of the firm, would be
governed exclusively by the terms of the partnership deed itself
and, in that eventuality, if the partnership deed, which was on
record in evidence, is taken into consideration, its execution
refers to the aforesaid directions of taking financial assistance on
19.06.1995, and the interse liabilities, which were governing
between the plaintiffs and the appellant, who were admittedly the
partners of firm in terms of the aforesaid partnership deed dated
19.06.1995. Hence, based on the fact on records, of existence of
the partnership deed cannot be disputed as against the decree in
question.
4. This Second Appeal was preferred by the defendant
(appellant herein) on 11.07.2005, and the Second Appeal was
admitted by the coordinate Bench of this Court, by an order dated
13.07.2005 on two substantial questions of law i.e. 'A' and 'B',
which are referred to hereunder:-
"(a) Whether a suit simplicitor of recovery of money is
maintainable at the behest of a partner against the
other partner of a firm without the dissolution of the
firm?
(b) Whether the suit of the plaintiff/respondents is not
barred by the provisions of section 69 of the Indian
Partnership Act, 1932?"
5. The present Second Appeal, earlier was taken up on
number of occasions and the order sheet reflects that though the
plaintiffs/respondents, had put in appearance, through their
counsel, but later on, they themselves have chosen not to contest
the proceedings of the Second Appeal and ultimately, the
coordinate Bench of this Court, vide its order dated 01.12.2020,
directed the Second Appeal to be proceeded ex parte against the
respondents. Its not only that. When the matter was subsequently
taken up on 03.03.2021, before me, the learned Senior Counsel
for the plaintiffs/respondents, had sought a liberty to file an
appropriate application for seeking recall of the order dated
01.12.2020, directing the Second Appeal to be proceeded ex parte
against the respondents, but the same has not been filed.
6. There is an office report that in compliance thereto of the
order dated 03.03.2021, no such application has been filed by the
respondents and as such, the order to proceed ex parte was passed
on 01.12.2020 stands as on date. Its not even that. Even after
taking liberty to file an application for recall on 03.03.2021,
thereafter when the matter was taken up again on 23.03.2021, yet
again, in either of the calls, the respondents' counsel had not
appeared, hence this Court had got no other option except to
proceed ex parte against the respondents.
7. The precise question, which has been argued by the learned
counsel for the defendant/appellant, before this Court is on the
premise that the substantial question of law "A" and "B", on
which the Second Appeal was admitted, it was to the effect that
once the liability of a recovery of money is being fasten upon the
defendant in a suit and the suit happens to be interse between the
partners of the firm whether at all the said suit is maintainable in
view of the bar created under Section 69 of the Indian Partnership
Act.
8. The learned counsel for the appellant Mr. Pankaj Purohit
had made reference to Section 69(1) of the said Act, which reads
as under:-
"(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."
9. If the said provision is strictly taken into consideration, the
central legislation itself bars the very institution of any suit for
enforcement of a rights, which are flowing from the terms of the
partnership deed interse between the partners, particularly, when
the partnership deed itself is an unregistered document and hence
once a partnership deed is an unregistered document,
enforcement of its right by virtue of invocation of Section 9 of
the Code of Civil Procedure, by way of filing the suit for
recovery of the amount, would not be maintainable and
particularly rather a specific bar for its institution has been
created by the aforesaid provision contained under sub Section
(1) of Section 69 of the Partnership Act. This in itself would
suffice to arrive at a conclusion and particularly in the light of the
pleadings which has been raised in the plaint itself, by the
respondents that their claim for grant of decree for recovery of
money, as prayed for and if the aforesaid averments are taken
into consideration in its totality, it is based upon the unregistered
partnership deed, which admittedly happens to be an unregistered
document and which was not even proved or even attempted to
be proved to be registered in the proceedings before the Court
below, hence the same cannot be taken as to be the basis for the
purposes of the institution of the suit for recovery of money in
view of the bar created under sub Section (1) of Section 69 of the
Partnership Act.
10. Consequently, the substantial questions of law, as framed in
the Second Appeal of the defendant/appellant, is answered in his
favour. The Second Appeal is allowed. The impugned judgments
under challenge is hereby quashed, holding thereof that the
plaintiffs/respondents' suit for recovery of money under the terms
of an unregistered partnership deed was not sustainable because
of the statutory bar created by the central legislation under
Section 69 of the Partnership Act.
11. Consequently, the Second Appeal is allowed. The
impugned orders are hereby quashed. However, there would be
no order as to costs.
(Sharad Kumar Sharma, J.)
24.03.2021
Mahinder/
