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M.A. HussaIn and anr. Vs. Panchamal Vasudev Ganapath Kamath and Brothers and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 480 of 1967
Judge
Reported inAIR1970Kant299; AIR1970Mys299; (1970)2MysLJ27
ActsPartnership Act, 1932 - Sections 69(2); Provincial Small Cause Courts Act - Sections 25; Code of Civil Procedure (CPC), 1908 - Order 30, Rule 1; Evidence Act - Sections 64, 65 and 76
AppellantM.A. HussaIn and anr.
RespondentPanchamal Vasudev Ganapath Kamath and Brothers and anr.
Appellant AdvocateP. Vasudeva Aithal, Adv.
Respondent AdvocateU.L. Narayana Rao, Adv.
Excerpt:
.....be satisfied is the date of the institution of the suit. 11. the learned counsel for the petitioners contends that the second condition mentioned in section 69(2) has not been satisfied in this case as admittedly the respondent has not produced the extract from the register of firms showing sri panchamal vasudev kamath as a partner of the firm. 1 clearly shows that the plaintiff is a registered firm and p. but the learned counsel for the petitioners urges that the second condition cannot be satisfied by any evidence-other than the extract of the register of firms. 1 and holding that the requirements of section 69(2) of the partnership act were satisfied. consequently, both the conditions specified in section 69(2) have been satisfied in this case. the contention of the learned counsel..........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.' 10. this provision specifically bars the institution of a suit by or on behalf of a firm to enforce a right arising from a contract makes (unless?) the conditions specified in section 69(2) are satisfied. the use of the expression 'no suit ...... shall be instituted in any court. .. clearly indicates the intention of the legislature to make this provision mandatory. the two requirements which must be fulfilled before a suit can be instituted to enforce a contractual right by the firm or on behalf of the firm are: (1) that the firm is a registered one and (2) that the persons.....
Judgment:
ORDER

V.S. Malimath, J.

1. This is a revision petition filed by the original defendants 2 and 3 against the decree passed by the II Additional Civil Judge, Mangalore, in Small Cause Suit No. 387 of 1963 under Section 25 of the Provincial Small Cause Courts Act.

2. It is the plaintiffs case that M/s. Panchamal Vasudev Ganapath Kamath and Bros, is a registered partnership firm. The suit has been filed by the firm and in the name of the firm by its partner Sri Panchamal Vasudev Kamath. The case of the plaintiff is that defendants 1 to 3 who were doing business in the name and style of 'National Trading Co. Bunder Mangalore' purchased from the plaintiff goods worth Rs. 4,077-87 P. on credit on 6-10-1960. The defendants having paid only a sum of Rs. 2,400 they are, according to the plaintiff, liable to pay the balance of Rs. 1,677-87 P. and interest thereon,

3. Defendant No, 1 denied his liability by contending that he was never a partner of 'National Trading Company' and that he had no dealings in any capacity with the plaintiff. The lower Court accepting the vase of defendant No. 1 has dismissed thesuit as against defendant No. 1. That part of the decree has not been challenged by the plaintiff and hence the same has become final.

4. Defendants 2 and 3 resisted the suit on various grounds. Defendants 2 and 3 have averred that they were not the partners having any business dealings with the plaintiff, they denied the suit transaction and the liability arising therefrom. They further denied that the plaintiff is a Registered firm or that Sri Panchamal Vasudev Kamath is a partner of the firm entitled to represent the alleged firm. They, therefore, contended that the suit is not maintainable in view of Section 69(2) of the Indian Partnership Act.

5. The learned Civil Judge framed the following points for determination in the suit:

(i) Whether the suit is maintainable in view of the provisions of Section 69(2) of the Indian Partnership Act; and

(ii) Whether the amount claimed by the plaintiff is payable by the defendants?

6. In view of the production of the acknowledgment of Registration, Ex. A-l, by the plaintiff, defendants 2 and 3 did not press their contention that the plaintiff was not a Registered firm on the date of suit. The defendants however contended that the suit is not maintainable as the plaintiff has not produced the extract of the Register of Firms showing Sri Panchamal Vasudev Kamath as a partner of the firm on the date of suit as required by Section 69(2) of the Indian Partnership Act.

The learned Civil Judge held that under Section 69(2), it is not incumbent upon the plaintiff-firm to produce the extract of Register of firms showing the names of the partners. He held that production of a certificate showing the registration of the firm is sufficient. He held that Ex. A.1 established that the plaintiff is a registered firm. He further held that Sri Panchamal Vasudev Kamath is a partner of the firm on the basis of the sworn testimony of Sri Panchamal which has not at all been challenged in cross-examination by any of the defendants. After analysing the evidence placed by the parties the learned Civil Judge came to the conclusion that defendants 2 and 3 are liable to the plaintiff to the extent of Rs. 1,986-99 P. and interest on Rs. 1,677-87 at 6% p. a. from 3-10-1963. The learned Civil Judge passed a decree accordingly against defendants 2 and 3 only on 11-10-1966, in the above referred Small Cause Suit No. 387 of 1963.

7. It is the correctness of the aforesaid decree that is challenged by defendants 2 and 3 in this revision petition filed under Section 25 of the Provincial Small Cause Courts Act.

8. Sri P. Basudev Aithal, the learned counsel for the petitioner contended that the suit ought to have been dismissed by the trial court as the mandatory requirements of Section 69(2) of the Indian Partnership Act have not been fulfilled on the ground that the plaintiff has not produced the extract of Register of firms showing Sri Panchamal Vasudev Kamath as a partner of the plaintiff firm. The learned counsel contends that Section 69(2) is mandatory and that as there is non-compliance with the same, the suit ought to be dismissed. The two mandatory requirements of Section 69(2) according to the learned counsel are:

(1) That the firm is a registered one: and

(2) that the persons suing are or have been shown in the Register of Finns as partners in the firm.

The learned counsel for the petitioners does not dispute that the suit has been instituted by the firm to enforce a right arising from a contract against a third party. He also does not dispute that the firm is a registered one. He conceded that the provisions of Order 30, Rule 1 of the Civil P. C. have been complied with. The learned counsel for the petitioners urges that the suit ought to be dismissed on the ground that the plaintiff has not produced an extract of the Register of firms showing Sri Panchamal as a partner of the firm on the date of suit.

9. Section 69(2) on which reliance is placed by the petitioner's counsel reads as follows:

'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.'

10. This provision specifically bars the institution of a suit by or on behalf of a firm to enforce a right arising from a contract makes (unless?) the conditions specified in Section 69(2) are satisfied. The use of the expression 'No suit ...... shall be instituted in any court. .. clearly indicates the intention of the Legislature to make this provision mandatory. The two requirements which must be fulfilled before a suit can be instituted to enforce a contractual right by the firm or on behalf of the firm are: (1) that the firm is a registered one and (2) that the persons suing are or have been shown in the register of firms as partners of the firm. As these are the conditions for the institution of the suit, the relevant date with respect to which these conditions must be satisfied is the date of the institution of the suit. On the date of the institution of the suit, the firm must he a registered one and the persons suing must either be partners or persons whose names are shown in the register of firms as partners. Both the conditions are mandatory and must be fulfilled. The suit would be wholly incompetent if either of these conditions is not fulfilled. The learned counselfor the petitioners invited my attention to a decision of the Gujarat High Court reported in Bharat Sarvodaya Mills Co. Ltd. v. Mohatta Brothers A Firm, : AIR1969Guj178 . The view taken by their Lordships or the Gujarat High Court in this behalf accords with the view I have taken above. I therefore respectfully agree with the said decision.

11. The learned counsel for the petitioners contends that the second condition mentioned in Section 69(2) has not been satisfied in this case as admittedly the respondent has not produced the extract from the Register of firms showing Sri Panchamal Vasudev Kamath as a partner of the firm. Dealing with this aspect of the matter, this is what the learned Civil Judge has observed in this case:

'In view of the case law cited by the learned advocate for the plaintiff, I hold that the suit is maintainable even though the extract of Register of firms showing the partners has not been filed by the plaintiff as Ex. A.1 clearly shows that the plaintiff is a registered firm and P. W. 1 has stated on oath that he is a partner of that firm and he has not been cross-examined by any of the defendants regarding the fact of his being a partner of the plaintiff firm.'

The learned counsel for the petitioners fairly conceded that there is no cross-examination whatsoever of P. W. 1 challenging the sworn statement of P. W. 1 that he is a partner of the plaintiff firm. P. W. 1 is no other than Sri Panchamal Vasudev Kamath.

The learned counsel also fairly conceded that barring the averment in the written statement there is no other evidence to indicate that Sri Panchamal Vasudev Kamath was not a partner of the plaintiff firm on the date of suit. But the learned counsel for the petitioners urges that the second condition cannot be satisfied by any evidence-other than the extract of the register of firms. He further contends that as no such extract has been produced in this case, the second condition which is a mandatory condition has not been fulfilled in this case.

He therefore contends that the suit ought to be dismissed. In support of his contention, the learned counsel for the petitioners relied on a decision of the Nagpur High Court reported in Kapurchand Bhagaji Firm v. Laxman Trimbak, AIR 1952 Nag 57. The relevant portion of the aforesaid decision on which reliance was placed by the learned counsel for the petitioners is extracted below:

'Para (4)

There can be no doubt that the Register of Firms is a public document and the requirements of Section 69(2) are complied with by producing a certified copy of an entry from this register. The primary evidence of a document is the document produced for the inspection of the Court and secondary evidence means and includes certified copies given under Section 76 of the Evidence Act. Under Section 64 of that Act documents must be proved by primary evidence except in cases mentioned in See. 65. Under Section 65(e) a certified copy of a public document but no other kind of secondary evidence is admissible to prove the original.

Para (5)

It will thus be clear that the evidence of P. W. 1 is not admissible as secondary evidence to prove the fact of registration. It is not enough to prove that the firm was registered, but it must also be proved that the persons suing are or have been shown in the Register of Firms as partners of the firm. There is no evidence that the three partners have been shown in the Register of Firms. That fact could be proved only by producing a copy of the entry from the Register of Firms. The lower Court thus fell into error in relying on the evidence of P. W. 1 and holding that the requirements of Section 69(2) of the Partnership Act were satisfied. The plaintiff's suit should have been dismissed on this ground.'

This decision no doubt supports the case of the petitioners. I agree with the view expressed by Justice Deo that the only evidence that can be produced to prove that the persons suing have been shown in the Register of Firms as partners in the firm is the relevant register of firms or a certified copy of the same. I also agree that oral evidence cannot be adduced to prove that the names of the persons suing have been shown in the register of Finns as partners in the firm. But with great respect, I do not agree with the view that oral evidence cannot at all be adduced to prove the second condition. The second condition really consists of two alternatives and it is enough it one of them is fulfilled. The second condition of Section 69(2) reads as follows:

'..... .and the persons suing are or havebeen shown in the Register of firms as partners in the firm.'

12. It is clear from this provision that there arc two alternatives available in the second condition. The persons suing may establish either that they are partners on the date of suit or that they are persons whose names are shown in the register of firms as partners in the firm. As already observed, the second alternative, namely, the fact that the names of the persons suing have been shown in the Register of firms as partners of the firm can be established either by producing relevant Register of firms or a certified copy of the same and not by adducing oral evidence. But there is no legal bar to prove the first alternative, namely, that the persons suing are partners of the firm by adducing evidence other than the register of Firms or its certified copy. It appears that pointed attention of the court has not been invited to the first alternative of the second condition in above referred case decided by the Nagpur High Court. In my opinion, the persons suing must either in fact be partners on the date of suit or must be persons whose names are shown as on the date of suit in the Register of Finns as partners of the firm. Even if the names of the partners suing have not yet been entered in the Register of firms, they can still institute the suit by proving that they are in fact partners of the firm on the date of suit. That can only be proved by evidence other than the Register of firms. I therefore respectfully disagree with the view taken by Justice Deo in the decision reported in AIR 1952 Nag 57. In my opinion, oral evidence other than the Register of Finns or its extract can be adduced to prove that the persons suing are partners of the firm as on the date of suit.

13. In the present case, P. W. 1 Sri Panchamal has stated on oath that he is the partner of the plaintiff firm. There is no cross-examination of this witness on this point. Barring a general averment in the written statement of the defendants, there is no other material to doubt the testimony of P. W. 1 The learned Civil Judge has therefore rightly believed P. W. I and held that Sri Panchamal is a partner of the firm. Consequently, both the conditions specified in Section 69(2) have been satisfied in this case. The contention of the learned counsel for the petitioner that the suit is not maintainable must therefore fail.

14. The learned Civil Judge has afterappreciating the evidence on record decreed the suit. The learned counsel for the petitioners has not been able to invite my attention to any infirmities in the judgment of the lower court in this behalf. I do not find any grounds to interfere with the decree passed by the lower court.

15. For the reasons stated above, this revision petition is dismissed with costs.

16. Revision dismissed.


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