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Bipul Chandra Das & Another v/s Rakhi Acharjee & Others


Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- R K CHANDRA PVT LTD [Strike Off] CIN = U36911WB1989PTC046753

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- H CHANDRA PRIVATE LIMITED [Strike Off] CIN = U65990MH1952PTC008894

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

Company & Directors' Information:- H C CHANDRA & CO. PVT LTD [Strike Off] CIN = U20231WB1957PTC023337

Company & Directors' Information:- CHANDRA AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74999KL1952PTC000280

Company & Directors' Information:- R. CHANDRA LIMITED [Not available for efiling] CIN = U99999MH1953PLC009175

    RSA No. 22 of 2016

    Decided On, 01 February 2020

    At, High Court of Tripura

    By, THE HONOURBLE CHIEF JUSTICE MR. AKIL KURESHI

    For the Appellants: Paromita Dhar, Advocate. For the Respondents: None.



Judgment Text


Oral

[1] This appeal is filed by the original plaintiffs challenging the judgment dated 16th January, 2015 passed by the learned Civil Judge (Junior Division), Kailashahar, as confirmed by the first appellate Court (learned Additional District Judge, Unakoti, Kailashahar) under a judgment dated 18th December, 2015. While admitting the appeal, this Court had framed following substantial questions of law:

“(1) When the suit is not filed in the name or by the firm but by some of the partners bringing the other partners as a party in the suit whether that suit is barred under Section 69(2) of the Indian Partnership Act, 1932

and

(2) Whether the nature of reliefs as prayed in the suit can create a bar again under Section 69(2) of the Indian Partnership Act, 1932 as held by the courts below?”

[2] The plaintiffs had filed the said suit contending that under a deed dated 14th May, 2001 a partnership in the name of M/s. Ramthakur Travels was constituted between the plaintiffs and the defendant No.1. The firm raised personal loans and also borrowed money from defendant No.4 State Bank of India and purchased a Commander Jeep for plying on rent. According to the plaintiffs, the defendant No.1 on the basis of power of attorney executed in her favour took the possession of the vehicle and started running it by employing a driver. She refused to give accounts to the other partners. The defendant No.1 did not deposit any amount with the Bank. As a result, the Bank outstanding dues kept mounting. On 12th February, 2004 the plaintiffs and the defendant No.1 made an arrangement with defendants No.2 and 3 i.e. Tripura Motor Shramik Union and its Branch respectively, as per which the vehicle would remain in the custody of defendants No.2 and 3 and the said defendants would clear the Bank dues and also maintain the vehicle in proper condition. According to the plaintiffs, therefore, the said defendants No.2 and 3 were also liable to submit their proper account of the income generated and also to return the vehicle.

[3] On the basis of such pleadings, the plaintiffs had prayed for following reliefs in the said suit:

“(A) A decree be made declaring right title and interest of the plaintiffs on the Commander Jeep Vehicle No.TR-02-3111.

(B) That a decree for recovery of possession Commander Jeep Vehicle No.TR-02-3111 be made in favour of the plaintiffs against the defendants.

(C) The a perpetual injunction be made restraining the defendant No.1, 2 & 3 and their agents from plying the Commander Jeep Vehicle No.TR-02-3111.

(D) To Direct “by Mandatory injunction” the defendant No.1 Attorney to clear up all bank dues of defendant No.4 and give accounts of income of the vehicle TR- 02-3111 from 29.09.2002 to 24.01.2004 and the as defendant No.1 disowned her ownership thereon.

(E) Defendant No.2 & 3 be directed to render accounts of the income of vehicle No.TR-02-3111 from 25.01.2004 to till recovery of the same “by Mandatory injunction”.

(F) Defendant No.1 be directed to render accounts and pay 2/3 rd of the income of the plaintiffs from 28.09.2002 to 24.01.2004 ?to the defendant No.4 bank; including the 1/3 rd share of the defendant No.1 by mandatory injunction”.

(G) Costs of the suit and other reliefs as legally entitle be made in favour of the plaintiffs.”

[4] Defendants No.1, 2 and 3 had filed a common written statement and opposed the prayers. In such written statement it was contended that by a joint arrangement between all the partners of the firm that the custody of the vehicle was handed over to defendants No.2 and 3 for operation and maintenance. The said defendants No.2 and 3 had till 10th May, 2006 paid a sum of Rs.2,15,462/- in the Bank account.

[5] The trial Court had raised following issues:

“(1) Is the suit maintainable in its present form?

(2) Have the plaintiffs any cause of action to file this suit?

(3) Are the plaintiffs partners of firm M/s Ramthakur Travels, Kumarghat and if so, whether plaintiffs are entitled to get share of profit derived from the vehicle involved in this suit from the period of 28.9.2002?

(4) Are the plaintiffs entitled to get decree as prayed for?

(5) To what other relief/reliefs the parties are entitled?”

[6] In the judgment dated 24th February, 2015 while dismissing the suit the learned trial Judge held that the suit was maintainable but the plaintiffs did not have any cause of action to file the suit. The rest of the issues were consequential and, therefore, answered in the negative. In the context of issue No.2, the learned Judge held that the suit was filed by the partners of an unregistered partnership firm and that, therefore, the same was not maintainable. A reference was made to Section – 69 of The Indian Partnership Act, 1932 (hereinafter to be referred to as ‘the Partnership Act’). This view of the trial Court was confirmed by the appellate Court. Hence this appeal.

[7] I have heard learned counsel for the appellant. Though served, none appeared for the respondents.

[8] The short question is, could the plaintiffs’ partners of the firm maintained the said suit for the reliefs, mentioned above, in face of the embargo contained in Section 69 of the Partnership Act? Section 69 pertains to effect of non-registration and reads as under:

“69. Effect of non-registration.— (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(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.

(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,—

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.

(4) This section shall not apply,—

(a) to firms or to partners in firms which have no place of business in [the territories to which this Act extends], or whose places of business in [the said territories], are situated in areas to which, by notification under [section 56], this Chapter does not apply, or

(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.”

[9] Under sub-section (1) of Section 69, no suit to enforce a right arising from a contract or conferred by the Act would be instituted before any Court on behalf of any person suing as a partner against the firm or any person alleged to be or to have been a partner of the firm, unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Likewise, sub-section (2) of Section 69 places an embargo to filing of a suit to enforce a right arising from a contract 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 a partners of the firm. Sub-section (3) of Section 69 clarifies that the provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceedings to enforce a right arising from a contract. This sub-section, however, provides two exceptions namely, the provisions of sub-sections (1) and (2) shall not affect, [as per clause (a)] enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm. Clause (b) of subsection (3) is, in clear terms, not applicable in the present case which pertains to the powers of an official assignee, receiver or Court. The exceptions provided in sub-section (4) are also not applicable.

[10] For the plaintiffs, therefore, to be able to maintain the suit they must fall in clause (a) sub-section (3) of Section 69, as per which the embargo contained in sub-sections (1) and (2) would not affect enforcement of certain rig

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hts which are any right to sue for dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm. Clause (a) of sub-section (3), therefore, would be applicable when the suit is for either dissolution of a firm or for accounts of a dissolved firm or any right of power to realise the property of a dissolved firm. In the present case, the partnership was not yet dissolved, nor the plaintiffs had asked for dissolution of the firm. The exception provision contained in clause (a) of sub-section (3), therefore, did not apply. The suit was thus not maintainable. Against the defendants No.2 and 3 the prayers made were consequential to the primary prayer against the defendant No.1, a partner of the firm, in view of the fact that the firm was unregistered the same was correctly held to have been not sustainable. Both the questions, therefore, are answered in the negative. Second appeal is dismissed. Pending application(s), if any, also stands disposed of.
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