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Basanta Kumar Pal Vs. Late Durgadas Akrur Chandra Banik - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.703
AppellantBasanta Kumar Pal
RespondentLate Durgadas Akrur Chandra Banik
Cases ReferredMunjhoori Bibi v. Akal Mahmud
Excerpt:
partnership act (ix of 1932), sections 69, 74 (a) - section 69, if affected by section 74(a)--suit by unregistered firm after commencement of act, to enforce contractual claim accruing before commencement. - .....certain sums of money. various defences were raised but they were not allowed to prevail by the learned judge who decreed the suit in favour of the opposite party. the learned advocate for the petitioner has put forward two arguments in support of the rule. it appears that during the course of the trial the defendant pleaded that payments had been made and obtained an order that the plaintiff should produce certain books. eventually the court passed an order that those books must be produced before the plaintiff can proceed further. one of those books was not produced and the defendant contended that the suit should be dismissed as the plaintiff had not complied with the court's order. the learned judge refused to accede to the contention and in his judgment he says that the.....
Judgment:
ORDER

Mc Nair, J.

1. This Rule was obtained by the defendant in a suit brought in the Court of the Small Cause Court Judge of Comilla to have the judgment and decree of that Court dated September 10, 1934 set aside. The opposite party had sued the petitioner to recover certain sums of money. Various defences were raised but they were not allowed to prevail by the learned Judge who decreed the suit in favour of the opposite party. The learned Advocate for the petitioner has put forward two arguments in support of the Rule. It appears that during the course of the trial the defendant pleaded that payments had been made and obtained an order that the plaintiff should produce certain books. Eventually the Court passed an order that those books must be produced before the plaintiff can proceed further. One of those books was not produced and the defendant contended that the suit should be dismissed as the plaintiff had not complied with the Court's order. The learned Judge refused to accede to the contention and in his judgment he says that the non-production of the book was explained. In the circumstances, the learned Judge was justified in not dismissing the suit on that, ground.

2. A further objection was raised that the suit could not be maintained owing to the provisions of Section 69 of the Indian Partnership Act of 1932. Section 69(2) provides that 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. It is not denied that the suit was on behalf of the firm and that the firm is not registered. But it is contended that this section in not applicable to the present suit because the rights of the parties arose previous to the passing of the Act and reliance is placed on Section 74(a) of the Partnership Act. This matter was dealt with recently by this Court in a case reported in Surendra Nath De v. Manohar De : AIR1934Cal754 , and it was held that a suit by an unregistered firm to enforce a contractual claim accruing before the commencement of the Indian Partnership Act but brought after its commencement is barred under Section 69(2) of the Act.

3. The learned Advocate for the opposite party says that that decision is not correct and that it has not taken into consideration the provision of Section 74(a). In my view with great respect to the learned Judges I entirely agree with them both in their conclusion and their reasoning Section 69 is not affected by Section 74(a). The rights of the parties remained intact but Section 69 provides that those rights shall not be enforceable unless the provisions of Section 69 have been complied with. As the learned Judges in the case to which I have referred have pointed out the provisions of Sub Section (3) of Section 1 of the Partnership Act show that the intention of the Legislature was to ensure that a suit which was started after October 1, 1932, should only be by a registered firm for the acts of the firm. Reference has also been made before me to the decision of this Court in Munjhoori Bibi v. Akal Mahmud 17 C.L.J. 316 : 19 Ind. Cas. 793, where this Court held on a question of limitation that where the operation of a new statute was postponed the statute might affect the causes of action already accrued in the same manner as those accruing after its passage. The learned Judge was. In my opinion, wrong in his view of the interpretation of the provisions of the Partnership Act and the suit ought to have been dismissed.

4. The Rule is made absolute with costs hearing fee two gold mohurs.


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