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Parakam Catholic Sangham Proprietors, Chamkath Parekkath Variyed's Son Parinchu and Ors. Vs. Vekkekoilkath Kamti Nambrashtadri Ama's Son Ravi Varma Thirumalpad and Ors. (07.12.1936 - MADHC) - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in171Ind.Cas.821
AppellantParakam Catholic Sangham Proprietors, Chamkath Parekkath Variyed's Son Parinchu and Ors.
RespondentVekkekoilkath Kamti Nambrashtadri Ama's Son Ravi Varma Thirumalpad and Ors.
Cases ReferredFirm Danmal Parshotam Das v. Firm Babu Ram
Excerpt:
partnership act (ix of 1932), sections 69(2), 74(b) - suit by unregistered firm in respect of contract entered into before act--whether barred--section 74(b), if saves future proceedings from bar of section 69(2). - .....the suit holding that section 69, clause 2, would be a bar.3. section 74, clause (b) runs thus: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.4. the view taken by sulaiman, c.j. was that the words are general and would ordinarily include any suit or application for the enforcement of a legal remedy in respect of a right already acquired he was also of the view that the words 'before the commencement of the act' would not qualify legal proceeding or remedy. it seems to me that the interpretation placed by sulaiman, c.j., is correct, namely clause (6) is intended to cover a legal proceeding or remedy in respect of matters mentioned in clause (a) and (c). so interpreted.....
Judgment:

Venkataramana Rao, J.

1. The question involved in this Civil Revision Petition is whether the suit is barred by Section 69 of Clause 2 of the Partnership Act. The suit is to recover a sum of money due on a promissory note, to an unregistered firm executed before the Indian Partnership Act of 1922. The action was laid admittedly after October 1933 and when Section 69, Clause 2 of the Act came into force. The learned District Munsif of Chowghat dismissed the suit holding that as the firm was unregistered, Section 69, Clause 2, was a bar to the suit. Section 69, Clause 2, runs thus:

No suit to enforce a right arising from a contract shall be instituted in any Court by or of 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.

2. There is no doubt that this section enacts a rule of procedure. It imposes a condition for the enforcement of a right and does not affect the right itself. Being an enactment relating to procedure, it will apply to pending action as well as to future actions. The Legislature to avoid hardship provided that Section 69, Clause 2, shall come into force on October 1, 1933. This provision is also a clear indication that the enactment is intended to be retrospective. This enactment has been the subject of judicial interpretation and a view has been consistently taken that Section 69 Clause (2) will bar a suit by an unregistered firm even in respect of a contract entered into before the Act. Vide Surendra Nath De v. Monohar De : AIR1934Cal754 Krishna Lai Ram Lai v. Abdul Gafur A.I.R. 1935 Lah. 893 : 160 Ind. Cas. 513 : 8 R.L. 557 : 17 Lah. 275 : 38 P.L.R. 633; Firm Ram Prasad-Thakur Prasad v. Firm Kanta Prasad Sital-Ram : AIR1935All898 Ramsunder Bhowmick v. Madhu Sudhan Deb 40 C.W.N. 1180 : 64 C.L.J. 554 and Firm Danmal-Parshotam Das v. Firm-Babu Ram-Chote Lal {5) since reported in Firm Danmal-Parshotam Das v. Firm Babu Ram Chote Lail : AIR1936All3 . But a dissenting note was struck by Sulaiman, C.J. in Firm Danmal Parshotam Das v. Firm Babu Ram-Chote Lal : AIR1936All3 . The observations in his judgment were relied on by Mr. Kuttikrishna Menon for the position that Section 74, Clause (6) of the Act saved all actions pending at the date of the Act or to be filed subsequent to and founded on contracts entered into before the Act from the bar of Section 69, Clause 2. It may be stated that even Sulaiman, C.J. ultimately concurred, with Bennet, J. in dismissing the suit holding that Section 69, Clause 2, would be a bar.

3. Section 74, Clause (b) runs thus:

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.

4. The view taken by Sulaiman, C.J. was that the words are general and would ordinarily include any suit or application for the enforcement of a legal remedy in respect of a right already acquired He was also of the view that the words 'before the commencement of the Act' would not qualify legal proceeding or remedy. It seems to me that the interpretation placed by Sulaiman, C.J., is correct, namely Clause (6) is intended to cover a legal proceeding or remedy in respect of matters mentioned in Clause (a) and (c). So interpreted Clause (b) would run 'any legal proceeding or remedy in respect of any right, title, interest, obligation or liability incurred before the commencement of the Act or in respect of anything done or suffered before the commencement of the Act. But 1 do not agree with him when he says that a suit which is brought to enforce a right which has already accrued would not be governed by the provisions of Section 69, Clause (2) of the Act. In my opinion, he seems to interpret 'affect' as meaning 'apply to' what Section 74, Clause (b) enacts is if a legal proceeding has already been commenced, it would not be affected by Section 69, Clause 2. In other words, in this context it would mean that the suit will be proceeded with without reference to Section 69, and the same would not apply to the case. But when the section enacts that nothing in this Act shall affect any 'remedy'; 'affect' cannot be interpreted to mean ''apply' to. The term 'remedy' connotes a right to sue or to take any other appropriate proceeding for the enforcement of a right. Section 69, Clause 2, which is only a rule of procedure would not affect the right to sue, and being an enactment relating to procedure and therefore retrospective in its operation will certainly govern the enforcement of that right because a mode has been provided by the Legislature in which the right of action already existing should be asserted. As already indicated by me, the Legislature intended that all actions brought after October 1933 should be governed by, the said provision. An interpretation consistent with this intention should be placed on Section 74, Clause (b) and the only possible interpretation is that Section 74, Clause (6) was only intended to have pending legal proceedings from the bar of Section 69, Clause 2, and not future proceedings. I am, therefore, of opinion that the suit is barred by the provisions of Section 69, Clause 2 of the Act and the view of the lower Court is correct.

5. In the result the Civil Revision Petition fails and is dismissed.


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