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Surendra Nath De and anr. Vs. Monohar De and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal754,153Ind.Cas.671
AppellantSurendra Nath De and anr.
RespondentMonohar De and anr.
Cases ReferredKrimbray v. Draper
Excerpt:
- .....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,2. evidently under this section firms which do not choose to be registered under the provisions of the act have been put under disability as regards their right to sue, the object of the legislature being to put pressure upon the unregistered firms to come on the register under the provisions of the new act. prima facie such an enactment would be unjust, no opportunities were given to them to register for no fault of theirs, they would be deprived of the right to enforce a claim which accrued to them before the act came into operation. in order to obviate this hardship the.....
Judgment:

1. This Rule is directed against the judgment and decree of the Second Court of the Munsif of Burdwan vested with the powers of a Small Cause Court Judge in a suit brought by the petitioners against the opposite party No. 1 for recovery of a certain sum of money. The learned Munsif has dismissed the suit on the ground that Section 69, Clause (2), Partnership Act of 1932 is a bar against the present suit. It is not disputed before us that the petitioner and the opposite party (2) constituted a firm as contemplated by Section 4, Partnership Act, and that the said firm has not been registered as required by the Act. It is not also disputed that this suit was instituted after Section 69 of the Act came into operation. The only point for determination therefore is whether Section 69(2) of the Act is a bar to the maintainability of the present suit. Section 69(2) runs thus:

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,

2. Evidently under this section firms which do not choose to be registered under the provisions of the Act have been put under disability as regards their right to sue, the object of the legislature being to put pressure upon the unregistered firms to come on the Register under the provisions of the new Act. Prima facie such an enactment would be unjust, no opportunities were given to them to register for no fault of theirs, they would be deprived of the right to enforce a claim which accrued to them before the Act came into operation. In order to obviate this hardship the legislature suspended the operation of Section 69 for a, year in order to give unregistered firms a reasonable chance to register before the section begins to operate against them. (Section 1, Clause (3) of the Act). The suspension of the operation for a year is therefore to be taken,

as an intimation that the legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper Tribunal.' See R. v. Leeds and Bradford Rail way Co., (1852) 21 LJMC 193.

3. In other words, if proceedings for enforcement of claims are not taken within one year, Section 69 would begin to operate as against them. It is therefore clear that Section 69 would apply to suits for enforcement: of claims accrued before the commencement of the Act, if such suits are started after Section 69 begins to operate. Again Section 69, being an enactment which deals with procedure only, i.e., the mode in which a right of action already existing shall be asserted, may be considered as retrospective in its operation and may be held to apply prima facie to all actions; pending as well as future: see Krimbray v. Draper, (1867) 3 QB 160 at 163 (Blackburn, J.). The legislature therefore wanted to save expressly the pending litigations in respect of rights already accrued from the operation of Section 69 by enacting Section 74, Clause (b). Dr. Mukherjee however contends that; the language of the section in its ordinary meaning and grammatical construction goes to indicate that the intention of the legislature was to save all litigations pending as well as future. In other words he would read the words 'before the commencement of the Act' in Section 74(b) as referring to 'the right or liability,' etc. But the words 'before the commencement of the Act' may be taken also as referring to the legal proceedings or remedy in respect thereof. If the allocation of the words is in itself precise and unambiguous no difficulty arises. But if the terms are ambiguous then the intention of the legislature must be sought for in the statute as a whole. As already pointed out the other section in the Act would go to indicate that the intention of the legislature was to bring Section 69 into operation against the firms, if they do not register themselves or if they do not take proceedings respecting antecedent matters within a year from the date of the commencement of the Act. Section 74, Clause (b) therefore does not save litigations started after the 1st day of October 1933. The Munsif was therefore right in dismissing the suit. The Rule is accordingly discharged, but we make no order as to costs in this Rule.


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