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Afsaar HussaIn and anr. Vs. Trilokchand Premchand - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 162 of 1971
Judge
Reported inAIR1975Ori84
ActsPartnership Act, 1932 - Sections 69; Code of Civil Procedure (CPC) , 1908 - Order 30, Rule 1
AppellantAfsaar HussaIn and anr.
RespondentTrilokchand Premchand
Appellant AdvocateK.N. Sinha, Adv.
Respondent AdvocateS.P. Raju, Adv. for ;Y.S.N. Murty, Adv.
DispositionRevision allowed
Cases ReferredBehari Lal v. Ram Chandra
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........certified copy of the register of firms showing that our firm is registered -- marked ext, 11. the firm name is kesarichand umedmal and the place of business is at jeypore. it has got branch at koraput having name as trilokchand premchand and this branch shop opened on 4-11-1964. ............'exts. 9, 10 and 11 are documents connected with the registration of the firm. ext. 9 is the acknowledgment of registration and shows that kesarichand umedmal has been registered as firm no. 112 of 1961 by the registrar of firms. ext. 10 is a deed of partnership. ext. 11 is a certified copy from the register of firms maintained under section 59 of the indian partnership act. therein, the firm name has been given as kesarichand umedmal and the names of the four partners have been duly shown. there is.....
Judgment:

R.N. Misra, J.

1.The defendants are in appeal against the reversing judgment and decree of the learned District Judge of Koraput at Jeypore in a suit for recovery of the price of goods supplied.

2. The plaintiffs alleged that they had a shop at Koraput and the defendants were taking cloth on credit from time to time. A sum of Rs. 695.79 paise was due from the defendants by 20th of July, 1965. In spite of demand, the amount was not paid. Therefore, after notice, the suit was filed on 31st of October, 1966, claiming the principal sum together with interest.

3. The defendants took the stand that they had made certain credit purchases, but payments had been made and not only the plaintiffs' dues were cleared, but some money was still owing to the defendants on account of excess payment. The suit was the outcome of malice atthe instance of one Kesharichand Umedmal as the defendants started buying their requirements from one Pratapchand, a business adversary of Umedmal.

4. The learned Subordinate Judge dismissed the suit by holding that the suit was not maintainable as it was hit by Section 69 of the Indian Partnership Act.

5. Upon appeal by the plaintiffs, the learned District Judge by judgment dated 15th of July, 1970, framed an additional Issue to the following effect:--

'Is the plaintiffs' firm a registered one and whether the suit is maintainable?'

and required the learned Trial Judge to submit his finding on the new Issue after taking evidence. The learned Subordinate Judge found in favour of the plaintiffs on the additional issue. The lower appellate court thereupon proceeded to dispose of the appeal and came to hold that the plaintiffs were entitled to recover a sum of Rs. 299.54 paise and the suit was maintainable as the plaintiffs were a registered firm. This second appeal has been filed against the reversing decree of the lower appellate court.

6. At the commencement of the hearing, a preliminary objection was raised by the respondent's Counsel contending that a second appeal against the appellate judgment was not tenable in view of the bar provided under Section 102 of the Code of Civil Procedure. Mr. Sinha for the appellants concedes that the preliminary objection must prevail and makes a prayer that this second appeal may be converted into a Civil Revision saying that adequate court fees have already been paid. I think, that would be in the interests of justice. I accordingly direct that the second appeal shall be treated as a Civil Revision and shall be registered as such.

7. The only question that is raised by Mr. Sinha in this civil revision is that the bar under Section 69 of the Indian Partnership Act operates and the plaintiffs' suit has to be dismissed. The plaint describes the plaintiffs in the following way:--

'Trilokchand Premchand, aged 35 and 25 years, sons of Sohanraj, merchants, residing at Koraput.'

The plaint has been verified by Premchand for Trilokchand Premchand, At the trial Trilokchand was examined as P. W. 1. He has stated:--

'Premchand is my brother. Myself and my brother carry on business under the name Trilokchand and Premchand of which I am the manager. ..................... The cloth shop is our own shop and this shop is a partner of Kesarichand Umedmal at Jeypore who are cloth merchants of Jeypore. Umedmal is the managing partner of the firm of which we are partners. Each of we partners has got 4 annas share. Umedmal has also issued notices calling upon the defendants to pay up the dues. Umedmal also stays at Koraput. Kesrichand is the eldest brother and he is managing the shop at Jeypore and he is also a partner. ......... The firm under the name and style Kesarichand Umedmal was existing at Jeypore prior to 1964 and a branch was opened at Koraput in 1964 and I am in charge of that branch. ............'

After the additional issue was raised, this witness was further examined and stated:--

'We are four partners. A partnership deed was executed. We three brothers, namely myself, Kesarichand and Premchand and one Anandi Bai (mother of these three brothers) are the four partners. We executed this partnership deed on 18th March, 1961. This is the partnership deed (Ext. 10). The firm was registered. This is the certified copy of the Register of Firms showing that our firm is registered -- marked Ext, 11. The firm name is Kesarichand Umedmal and the place of business is at Jeypore. It has got branch at Koraput having name as Trilokchand Premchand and this branch shop opened on 4-11-1964. ............'

Exts. 9, 10 and 11 are documents connected with the registration of the firm. Ext. 9 is the acknowledgment of registration and shows that Kesarichand Umedmal has been registered as firm No. 112 of 1961 by the Registrar of Firms. Ext. 10 is a deed of partnership. Ext. 11 is a certified copy from the Register of firms maintained under Section 59 of the Indian Partnership Act. Therein, the firm name has been given as Kesarichand Umedmal and the names of the four partners have been duly shown. There is an entry against paragraph 7 that apart from the main place of business of Jeypore, the other places are Umerkote and Koraput and that the business at Koraput commenced from 4-11-1964.

The learned Subordinate Judge while dealing with the additional Issue seems to have proceeded to accept the plaintiffs as a registered firm in view of this entry relating to the Koraput business. The lower appellate court proceeded on the basis that this matter did not arise for consideration.

8. The plaintiffs in this case are two partners, but they do not describe themselves as partners and have made no reference to the firm of four partners carrying on mainly business at Jeypore in the name and style of Kesarichand Umedmal. Though they were two separate persons, the verification in the plaint has been by one partner on behalf of Trilokchand Premchand as if that was a firm. The normal procedure for partners is tofile suits in the name of the firm when they want to enforce any right accrued to them as partners. The use of the name of the firm in any such case is merely a collective way of naming the individuals who are members of the partnership. Order XXX of the Code of Civil Procedure in relation to suits of partnership provides that it is permissible to partners to bring suits against third parties in the name of the firm and it is not necessary that the name of every partner should be mentioned as a party to the suit if the business of the firm is carried on in India. In such a case a suit may be filed in the name of the firm even after the dissolution provided that the cause of action arises before dissolution of partnership and the fact that one of the partners has died before the institution of the suit or even during its pendency does not affect the right. But it is incumbent upon all the partners to join in a suit upon a contract. If a suit is brought by some of them only, it is liable to be dismissed as was held by a Bench of the Oudh High Court in Behari Lal v. Ram Chandra, AIR 1942 Oudh 335. The suit in this case as laid is, therefore, not maintainable in law and the plaintiffs were not entitled to have the benefit of the registration of the firm at Jeypore in the name and style of Kesarichand Umedmal. As already pointed put, the plaintiffs wanted to pass as a firm by the name and style of Trilokchand Premchand.

9. In this view of the matter, I hold that the decision of the lower appellate Court is contrary to law and cannot be sustained, He had no jurisdiction to give a decree to the plaintiffs. The Revision is allowed and the plaintiff's suit is dismissed as not maintainable. I direct parties to bear their own costs throughout.


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