S.N. Modi, J.
1. This is an appeal by the plaintiff against the judgment and decree of the Civil Judge, Bikaner, dated 10-12-4971 dismissing the suit for recovery of Rs. 17,600/-.
2. The facts of the case which are no longer in dispute are as follows:--
Messrs. Chandrabhan Bansilal Ramratandass, a partnership firm, owns a building known as Narsingh Bhawan --Daga Building at K. E. M. Road in Bikaner. A dispute was going on between the owner of the building and the Municipal Board, Bikaner, about the disposal of the waste water coming out of the said building. The Municipal Board asked the owner to make proper and satisfactory arrangements for the disposal of the waste water. The Municipal Board also suggested to the owner to pay Rs. 8,799/-, the estimated cost, for construction of septic tank and soak-pit outside the building. When the owner neither made proper arrangements for the disposal of the waste water nor paid the estimated amount for constructing the soak-pit, the Municipal Board on 12-4-1946 served a notice under Section 81 of the Bikaner Municipal Act calling upon the owner Narsinghdas Daga to make arrangements for the disposal of the said waste water to the satisfaction of the Board or to pay the estimated cost of the entire scheme within 15 days of the receipt of the notice failing which action will be taken according to law and water supplied to building might be stopped without further notice. It appears that ultimately the owner agreed to deposit Rs. 8,799/- for the construction of a soak-pit and septic tank and sent a cheque for the said amount to the Municipal Board. Bikaner, on 22-3-1948. The Municipal Board accepted the cheque and the amount was credited in its account with the State Bank of Bikaner on 8-4-1948. On 19-12-1949 the Municipal Board's President informed the owner that necessary construction relating to the disposal of the waste water of the building will be got completed most probably in the last week of January, 1950, When nothing was done for several months, the owner enquired vide letter dated 24-6-1950 as to when the work was expected to be completed. In reply, the Executive Officer of the Municipal Board informed the owner vide letter dated 14-7-1950 that the matter had been referred to the Electrical and Mechanical Department and the action taken in this connection would be intimated in due course. Thereafter it appears that neither the owner nor the Municipal Board took any steps for the construction of the septic tank and soak-pit. On 1-3-1966 the owner received a demand notice from the Municipal Council, Bikaner, which, in the meantime, had succeeded to the Municipal Board, for payment of house-tax amounting to Rs. 3,131.25. The owner in his reply dated 30-9-1967 requested the Municipal Council to adjust the house-tax amount from the amount of Rs. 8,799/- lying in deposit with the Council against the construction of the septic tank and soak-pit. The Municipal Council vide its letter dated 7-11-1967 replied that it was not possible to effect the adjustment as desired. The owner Messrs: Chandrabhan Bansilal Ramratandass then served a notice on 4-12-1967 calling upon the Administrator, Municipal Council to refund the amount of Rs. 8,799/- together with interest at the rate of six per cent per annum. The Municipal Council gave no reply to the notice of the plaintiff. The plaintiff therefore brought the suit out of which this appeal has arisen, on 13-3-1968 for the recovery of Rs. 8,799/- as principal and Rs. 8,799/- by way of interest plus Rs. 2/- as notice expenses --total Rs. 17,600/-.
3. The plaintiff alleged in the plaint that the amount of Rs. 8,799/- was deposited with the Municipal Board for specific purpose and as amanat and since the Municipal Board neither spent the amount for carrving out that specific purpose nor it was making a refund of the amount, the plaintiff was entitled to a decree for the suit amount. The suit was resisted by the defendant Municipal Council, Bikaner, on various grounds. The defendant expressed its ignorance as to deposit made by the plaintiff. In the alternative, it was pleaded that the amount deposited by the plaintiff had been utilised in making arrangements other than the construction of the soak-pit and septic tank for the disposal of the waste water. The main pleas raised by the defendant were two-fold, firstly, that the suit was barred by time, and, secondly, the plaintiff-firm not being a duly registered firm, the suit is not maintainable. Some more pleas were raised by the defendant which would be clear from the following issues framed by the trial court:--
'1. Whether the plaintiff-firm deposited by cheque No. 4830 dated 22-3-1948 an amount of Rs. 8,799/- with the Municipal Board, Bikaner, for the construction of a septic tank and soak-pit outside the Daga building and the same is still in deposit with the defendant
1-A. Whether Dwarkadas, partner of the firm, deposited this amount of money for the construction of a drain for the disposal of waste water and whether the defendant utilised the amount for the construction of the drain and therefore now the plaintiff is not entitled to claim back the amount
2. Whether the plaintiff can claim interest at the rate of 6% per annum in the form of damages
3. Whether the plaintiff is entitled to file the suit
4. Whether the suit cannot proceed without obtaining the succession certificate by the plaintiff
5. Whether the suit is barred by time
6. Whether the State of Rajasthan is a necessary party to the suit and hence what is the effect of it on the suit
7. Whether the amount was not refundable under the provisions of the Municipal Act
8. Whether the plaintiff's firm is registered and therefore the suit is maintainable
9. Whether the rule of estoppel is applicable against the plaintiff
The learned Civil Judge found that the plaintiff had deposited Rs. 8,799/- with the Municipal Board, Bikaner, on 22-3-1948 for the purpose of construction of a septic tank and soak-pit for the disposal of the waste water coming out of the said Daga building. He further found that this amount was not utilised by the Municipal Board either for the purpose for which it was deposited or in any other manner for the disposal of the waste water. He also held that Tolaram who signed the plaint was not a competent person to bring the suit because the Aam-mukhtiarnama said to have been executed in his favour was neither produced nor proved. The learned Civil Judge also held that the certificate of registration of the plaintiff-firm issued by the Registrar of Firms, Rajasthan, Jaipur does not include the names of the daughters of the deceased partner Dwarkadas though they had been admitted as partners in the plaintiff-firm. On the plea of limitation, the learned Civil Judge held that the suit was barred by time though he did not mention the Article of the Limitation Act which governed the suit. On the basis of the above findings, the learned Civil Judge dismissed the suit and hence this appeal by the plaintiff.
4. It may be stated at the outset that the learned Civil Judge was entirely wrong in holding that the Aam-mukhtiarnama executed in favour of Tolaram was not produced by the plaintiff. A certified copy of the Aam-mukhtiarnama dated 19-3-1965 is on the record at pages B/5/1 to B/5/6. This Aam-mukhtiarnama was filed in court almost simultaneously with the filing of the plaint. It was not necessary to prove it as its genuineness was not disputed by the defendant in the written statement. It appears that the genuineness of this document was disputed in the amended written statement but no issue was struck on the point most probably because the defendant did not press for it. The learned counsel for the defendant rightly conceded that Tolaram was in fact authorised person to sign the plaint on behalf of the plaintiff-firm under the Aam-mukhtiarnama dated 19-3-1965.
5. Turning to the question of limitation, the learned Counsel for the plaintiff-appellant, in the first place, placed reliance on Article 145 of the Limitation Act, 1908 read with Section 30(a) of the Limitation Act, 1963. Article 145 of 1908 Act substantially corresponds with Article 70 of the 1963 Act. The first point of difference is that in Article 145 the limitation prescribed is 30 years whereas in Article 70, the period of limitation prescribed is three years. There is some difference in the language of third column also.
6. Article 145 of the old Act reads as under:--
'Art. 145-Against a deposi
tary or a pawnee
to recover mov
pawned.30 yearsThe date
Article 145 provides that a suit for the recovery of movable property deposited or Pawned shall be instituted within 30 years from the date of the deposit or pawn. In my opinion, this Article has no applicability to the present case, for, it cannot be said that the plaintiff deposited money with the Municipal Board in the present case. The word 'deposit' used in this Article shows that this Article is applicable where the property is deposited or pawned with another under an express trust or under circumstances from which a trust may be implied. There can be no deposit in the strict sense of the term where the movable property deposited is not itself to be returned but some work is agreed to be done in return of it. In the present case, it is admitted that the sum of Rs. 8,799/- was not to be returned but the Municipal Board was required to spend that amount for some specific purpose, namely, construction of septic tank and soak-pit, I am therefore of the view that Article 145 is not at all applicable to he facts of the present case. In my opin-on, the relevant Article which governs the suit is either Article 91 (b) or Article 55 or Article 113 of the Limitation Act, 1963. Article 91 (b) provides that a suit for compensation for wrongfully deining specific movable property may be instituted within three years from the date when the detainer's possession becomes unlawful. In the present case, the detainer's possession did not become unlawful till the Municipal Council refused to apply the amount deposited in constructing the septic tank and soak-nit. In the present case, there was no specific refusal at any time before the institution of the suit or at any rate till the Municipal Council showed its unwillingness to adjust the amount lying in deposit with it towards the payment of house-tax. It is not in dispute that the suit was filed within three years from the date the defendant refused to adjust the amount towards the house-tax. The same result follows if Article 55 or Article 113 is applied. Under Article 55, a suit for compensation for the breach of contract, express or implied, not specially provided for, may be instituted within three years from the date when the contract is broken. In this case, no specific time was agreed upon to perform the contract, that is. to construct the soak-pit and septic tank. It is not the case of the defendant that there was any demand by the plaintiff to perform the contract and there was any refusal on its part to do so at any time beyond the period of three years from the date of the suit. Thus the suit is within time even under Article 55 of the Limitation Act, 1963. So is the case if Article 113 is applied. The cause of action for refund of the amount accrued to the plaintiff only when the Municipal Council refused to adjust the amount towards the dues of house-tax on 7-11-67 (Ex. 10). In. my opinion, the learned Civil Judge was not right in coming to the conclusion that the suit was barred by time.
7. The next point which falls font determination is whether the suit is barred under Section 69(2) of the Partnership Act. The learned Civil Judge held the suit to be so barred because the names of the three daughters of the deceased Dwarkadas have not been shown in the Register of Firms as partners of the plaintiff-firm. Section 69(2) is in these terms:--
(1) xx xx xx xx
(2) 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.
XX XX XX XX'
This sub-section requires that before a suit to enforce a contractual right accruing in favour of the firm can be filed, two conditions must be fulfilled. The first condition is that the firm must be registered and the second condition is that the persons suing must have been shown in the Register of Firms as partners in the firm. So far as the first condition is concerned, it is common ground between the parties that it stands fulfilled in the present case as the plaintiff-firm is a registered one. The question is whether the second condition is also fulfilled or not. P. W. 2 Tolaram who is the Aam-mukhtiar of the plaintiff-firm and who had signed the plaint on behalf of the plaintiff-firm states that on the date Rs. 8,799/-were deposited, the working partner of the plaintiff-firm was Dwarkadas who expired on 4-11-1957 and his heirs namely Smt. Radhadevi widow of Dwarkadas and his daughters Kumudkumari and Kallakumari are the partners of the firm. P. W. 4 Shrigopal who had served the plaintiff-firm from 1946 to 1966 has stated that Dwarkadas expired on 4-11-1957 and after his death his widow and his three daughters became partners in the plaintiff-firm. He has further stated that the name of the widow is Smt. Radhadevi and the names of his three daughters are Kusum, Kumud and Kumari Kalla, The copy of the Register of Firms, which is on the record at page C/82 contains the names of five persons as partners of the plaintiff-firm. The names of the three daughters of Dwarkadas are not shown in this copy of the Register of Firms. The Aam-mukhtiarnama dated 19-3-1965 filed by Tolaram shows that he was appointed as Aam-mukhtiar by 12 persons all of whom were the partners of the plaintiff-firm. This mukhtiarnama was filed by Tolaram in order to show that he was suing the defendant on behalf of the 12 partners of the plaintiff-firm. The Register of Firms however includes the names of five persons only, and not of the 12 persons who have been described as partners of the plaintiff-firm in the Aam-mukhtiarnama. It is thus abundantly clear from the plaintiff's own evidence that the names of some of the persons suing as partners of the plaintiff-firm have not been shown in the Register of Firms as partners. In other words, the second condition of Section 69(2) has not been fulfilled in the present case. It has been laid down by this Court in Firm Alwar Iron Syndicate v. Union of India, AIR 1970 Raj 86 that where the names of some of the partners were not included in the Register of Firms, the suit was not maintainable. The same view has been taken earlier by another Bench of this Court in Kesrimal v. Dalichand, AIR 1959 Raj 140. I entirely agree with the proposition of law laid down in the aforesaid cases.
8. It is strenuously contended by Mr. Garg, the learned Advocate for the plaintiff-appellant, that the question of absence of the names of the partners in the Register of Firms was neither raised in the written statement nor any issue was framed on this point by the trial Court. He contends that no amount of evidence can be looked into upon a plea that was never put forward in the trial Court. Reliance is placed on Bhagatsingh v. Jaswantsingh, AIR 1966 SC 1861, Automobile . v. Government of Andhra Pradesh, AIR 1972 SC 229, Sheikh Mohammad Ibrahim and Sons v. Beharilal Beni Pershad, AIR 1938 Lah 96 and Nathuram v. Firm Bhonreylal and Hiralal, 1970 WLN 254.
I regret I cannot agree with Mr. Garg. None of the cases cited by Mr. Garg is applicable as the question of contravening a statute was not discussed in them. Here Section 69(2) of the Partnership Act expressly forbids any court from entertaining any suit by or on behalf of a firm which is not registered or where the names of the persons suing have not been shown as partners in the Register of Firms. An identical question came up for decision before a Division Bench of the Orissa High Court in Balasore Textile Distributors Association v. Indian Union, AIR 1960 Orissa 119. In that case, no specific plea under Subsection (2) of Section 69 of the Partnership Act was taken in the written statement, but there was necessary evidence available on the record showing non-compliance of the provisions of Section 69(2) of the Partnership Act. Narasimham, C. J., delivering the judgment observed that when necessary facts for the application of that section have been brought to the notice of the court, it cannot be a party to the perpetration of an illegality. Reliance was placed on the following observations of the Privy Council in Surajmull v. Triton Insurance Co.. AIR 1925 PC 83:--
'No Court can enforce as valid that which competent enactments have declared shall not be valid nor is obedience to such an enactment, a thing from which a Court can be dispensed by consent of parties or by failure to plead or to argue a point at the outset. ..... The enactment is prohibitory. It is not confined to affording a party protection of which he may avail himself or not as he pleases.'
The above cited Privy Council's case was subsequently followed by the Nagpur High Court in Mohanlal Jagannath v. Kashiram Gokul, AIR 1950 Nag 71 wherein it was observed that no Court can perpetrate an illegality once the necessary facts have come to its notice. The following observations of Lindley, L. J., in Scott v. Brown. Doering Mc Nab and Co., (1892) 2 QB 724 (728) were emoted with approval:
'It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him.'
As already pointed out, the evidence produced on behalf of the plaintiff goes to show that the names of some of the partners of the plaintiff-firm have not been shown in the Register of Firms as partners and as such the suit was clearly barred under Section 69(2) of the Partnership Act.
That apart, in the present case, a plea was raised by the defendant that the suit was barred under Section 69(2) of the Partnership Act. In para No. 15 of the amended written statement, the defendant pleaded that the plaintiff-firm was not duly registered and that the persons who had appointed Tolaram to be the Aam-mukhtiar were not the partners, meaning thereby that they have not been shown as partners in the Register of Firms. On the above allegations, an issue was framed whether the plaintiff-firm was duly registered one and the suit was maintainable. The point was argued before the learned Civil Judge who gave a finding adverse to the plaintiff. Before me, the point was argued and an opportunity was given to the plaintiff to clarify under what circumstances the names of some of the partners have not been shown in the Register of Firms, but the plaintiff did not make any attempt to point out the reasons for non-mentioning the names of the partners in the Register of Firms. In the circumstances, it is not the case where no plea has been raised by the defendant or that where the plaintiff was taken by surprise so as to cause prejudice to him. In my opinion, the learned Civil Judge rightly held that the suit was barred under Section 69(2) of the Partnership Act.
9. It is contended that the trial Court committed error in allowing the amendment of the written statement. I find no substance in the above contention. A defendant can be allowed to amend his written statement to enable him to raise an additional ground of defence even, if he failed to raise that ground in the first instance, if the additional ground is not inconsistent with the original case set up by him in the written statement and arises out of the case put forward by the plaintiff.
10. In the result, the appeal fails and it is dismissed.
11. Having regard to the circumstances of the case, the parties are left to bear their own costs in this appeal.