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Ramgopal Sriniwas Vs. Net Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil ;Contract
CourtAllahabad
Decided On
Reported inAIR1941All178
AppellantRamgopal Sriniwas
RespondentNet Ram and anr.
Excerpt:
- - the provision seems to us to be perfectly clear and straightforward and we see no reason to introduce into the section words which the legislature must be taken to have deliberately omitted......judge was not justified in dismissing the suit because the plaintiff was an unregistered firm. the learned judge found upon a consideration of the evidence that the plaintiff firm was not a joint family firm and that section 69 therefore applied to the case.3. there has been some divergence of opinion in this court and in other high courts in india as to the effect of section 74, partnership act. we have considered the decision in this court in danmal parshotamdas v. baburam chhote lal : air1936all3 . in that case bennet j. expressed the view which does not appear to have been shared by sulaiman c.j. that section 74(b) related to legal proceedings instituted before the commencement of the act. in our judgment this construction of the provision is not sound. the word 'pending' does not.....
Judgment:

1. This is a plaintiff's appeal arising out of a suit in which the plaintiff, an unregistered firm, sued for the price of certain goods supplied to the defendants. The only question raised in this appeal is as to whether Section 69, Partnership Act, applies to the plaintiff's suit. Section 69 prohibits unregistered firms from suing to recover money due to them for goods supplied. Section 74 of the Act, however, is to the effect:

Nothing in this Act or any repeal effected thereby shall affect or be deemed to affect (a) any right, title, interest, obligation or liability, already ac quired, accrued or incurred before the commencement of this Act, or (b) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability, or anything done or suffered before the commencement of this Act.

2. Learned Counsel maintained that in view of these latter provisions the learned civil Judge was not justified in dismissing the suit because the plaintiff was an unregistered firm. The learned Judge found upon a consideration of the evidence that the plaintiff firm was not a joint family firm and that Section 69 therefore applied to the case.

3. There has been some divergence of opinion in this Court and in other High Courts in India as to the effect of Section 74, Partnership Act. We have considered the decision in this Court in Danmal Parshotamdas v. Baburam Chhote Lal : AIR1936All3 . In that case Bennet J. expressed the view which does not appear to have been shared by Sulaiman C.J. that Section 74(b) related to legal proceedings instituted before the commencement of the Act. In our judgment this construction of the provision is not sound. The word 'pending' does not appear in the subsection. The sub-section in our judgment relates to those legal proceedings or remedies which were open to a party in respect of any right, title, interest, obligation or liability which had already been acquired, accrued or incurred before the commencement of the Act. This in our judgment is put beyond doubt by the opening words of the Sub-section, ' any legal proceeding or remedy.' If the intention of the Legislature had been to exempt from the operation of Section 69 only proceedings which had been instituted, the opening words would have been 'any legal proceeding pending or remedy taken.' The words 'pending' and 'taken' do not appear. The provision seems to us to be perfectly clear and straightforward and we see no reason to introduce into the section words which the Legislature must be taken to have deliberately omitted.

4. In the result the appeal is allowed and the order of the learned civil Judge is set aside. The learned Judge dismissed the suit upon the ground that the plaintiff firm was not entitled to sue. He did not go into the merits of the case. The record will be returned accordingly to the lower appellate Court with a direction that the appeal be admitted to its original number and disposed of according to law. The appellant firm is entitled to its costs.


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