w w w . L a w y e r S e r v i c e s . i n


Kolhapur Ice & Cold Storage Co. through Partner v/s Rajput Dairy through Brijlal Uddip Singh

    Writ Petition No. 249 of 2013
    Decided On, 21 November 2013
    At, High Court of Judicature at Bombay
    By, THE HONOURABLE MR. JUSTICE R.M. SAVANT
    For the Petitioner: Amit Borkar, Advocate. For the Respondents: Chetan Patil, Advocate.


Judgment Text
Oral Judgment:

1 Rule, with the consent of the Learned Counsel for the parties made it returnable forthwith and heard.

2 The Writ Jurisdiction of this Court is invoked against the order dated 10-10-2012 passed by the Learned 2nd Joint Civil Judge, Senior Division, Kolhapur, by which order, the application Exhibit 136 filed by the Petitioners herein for treating the suit as deemed to be filed on 27-8-2010, when the deed of partnership was registered, has been rejected by the Trial Court.

3 The facts necessary to be cited for adjudication of the above Petition can be stated thus:

The Petitioner is the original Plaintiff whereas the Respondents are the original Defendants. The Suit in question being Special Civil Suit No.200 of 1997, has been filed by the Petitioner for recovery of the amount for the goods supplied by the Petitioners to the Respondents/Defendants. The Defendant No.1 filed its Written Statement and took an objection to the maintainability of the Suit on the touch stone of Section 69(2) of the Indian Partnership Act, on the ground that the Plaintiff was an unregistered firm. Upon the said objection being taken, the Plaintiff sought to get over it by filing the instant application Exhibit 136 contending therein that since the firm has been registered later i.e. on 27-8-2010, the Suit be deemed as filed on the said day and therefore the defect in the filing of the Suit would stand removed. The said application filed by the Petitioner was objected to on behalf of the Defendant No.1 by contending that the defect of the Suit being filed on behalf of an unregistered firm, could not be removed. The Trial Court considered the said application Exhibit 136 filed by the Petitioner and as indicated above has by the impugned order dated 10-10-2012 rejected the same. In the Trial Court the Plaintiff relied upon the judgment of the Apex Court reported in AIR 1998 Supreme Court 3085 in the matter of Raptakos Brett and Company Ltd. Vs. Ganesh Property. Whereas on behalf of the Defendants reliance was placed on the another judgment of the Apex Court reported in AIR 1989 Supreme Court 1769 in the matter of M/s. Shreeram Finance Corporation Vs. Yasin Khan & Ors. as also the Judgment of a Division Bench of this Court reported in AIR 2006 (Bom) 106 in the matter of M/s. Balaji Construction Co. Vs. Mrs. Lira Siraj Shaikh. The Trial Court has considered the said application Exhibit 136 on the touchstone of the law which was cited before it and ultimately came to a conclusion that the Suit filed on behalf of the unregistered firm, was not maintainable.

4 Before this Court also, the Learned Counsel appearing on behalf of the Petitioner Mr. Borkar sought to place reliance on the Judgment in M/s. Raptakos Brett (supra) and especially paragraph 30 thereof. The Learned Counsel however would fairly contend that the observations made in paragraph 30 are obiter but would nevertheless be binding on this Court, in so far as the aspect as to whether the defect would stand removed if the firm is registered later on, is concerned.

5 Per contra Mr. Patil, the Learned Counsel appearing on behalf of the Respondents herein by placing reliance on the Judgment in Shriram Finance (supra) would contend that the proposition of law as enunciated by the Apex Court in the said Judgment still stands as the Apex Court in the Judgment in M/s. Raptakos Brett (supra) has in terms observed that it does not deem it fit to either refer the said issue to a larger bench to reconsider the decision in Shriram Finance (supra). It is the submission of the Learned Counsel that since there is a direct Judgment of the Apex Court which deals with the said issue, the obiter of the Apex Court in Raptakos Brett (supra) cannot be relied upon by the Petitioner.

6 Having heard the Learned Counsel for the parties, I have considered the rival contentions. In so far as the issue which is involved in the above Petition namely whether the subsequent registration of the partnership deed would cure the defect of filing of the Suit in the name of an unregistered firm and whether the Suit can be deemed to have been filed on the date when the firm has been registered, the said issue is no more res integra and is covered by the judgment of the Apex Court in Shriram Finance (supra). The Apex Court in the said case was concerned with a partnership firm wherein a partner was inducted and two minors had been admitted to the benefit of the partnership, notice of which was not given to the Register of Firms till much after the filing of the Suit. It is in the said context the Apex Court held that though the cognizance of the new partners has been taken by the Register of Firms later on, however, in view of the fact as on the date when the suit was filed the persons who had ceased to be partners were on record, the bar of Section 69(2) would apply.

7 In so far as Judgment in Raptakos Brett (supra) is concerned, The said case concerns a suit for possession filed by an unregistered firm against the erstwhile lessee. The said claim was based on breach of the covenant to restore possession in the lease deed as well as right of lessor to get possession under the law of the land i.e Section 108(q) read with Section 111(9) of the Transfer of Property Act. An objection was raised to the maintainability of the suit on the ground that the partnership firm was not registered.

The Apex Court framed two issues which are found in paragraph 8 of the Judgment viz:

(i) Whether the suit filed by the respondent was barred under Section 69, subsection (2) of the Partnership Act either wholly or in part.

(ii) if the suit was so barred, whether subsequent registration of the Plaintiff's firm under the Partnership Act could revive the suit or to make it competent at least from the date on which such registration is pending the suit was obtained by the respondent-firm.

The Apex Court held that since the plaint as framed by the Plaintiff on a composite cause of action having two parts one part refers to the breach of covenant on the part of the defendant being covenants 14 and 17 of the lease deed and the second part of the cause of action being based on the statutory obligation of the defendant when it failed to comply with its statutory obligation under Section 108(q) read with Section 111(1) of the Transfer of Property Act. The Apex Court held that in so far as the second cause of action is concerned, it definitely does not arise out of the erstwhile contract as what the Plaintiffs are seeking was enforcement of the legal right to possession against the erstwhile lessee under the provisions of Section 108(q) read with Section 111(a) of the Transfer of Property Act and the corresponding statutory obligation of the defendants under the same statutory provisions. Hence in so far as the said cause of action is concerned, the Apex Court held that the same stands completely outside the sweep of Section 69(2) of the said Act and the suit was maintainable. The Apex Court accordingly partly answered issue No.1 in favour of the Plaintiff and partly in favour of the Defendant No.1. After so answering issue No.1 the Apex Court held that it was not necessary for it to express any final opinion on the second issue in the facts of the said case. In fact, the Apex Court has specifically observed in paragraph 30 of the Judgment that it does not wish to make a reference to a larger bench for reconsideration of the decision in Shriram Finance (supra). The Apex Court lastly observed that with the said observations it brings down the curtains on the said controversy. Hence though some observations have been made by the Apex Court in Raptakos Brett (supra) as rightly contended by the Learned Counsel Mr. Borkar, the said observations can be

Please Login To View The Full Judgment!
said to be obiter. It is also required to be noted that the said observations were made by the Apex Court having regard to the practical difficulties that a party would face after litigating for a period of time and then being told that the suit was not maintainable. 8 In my view, in the light of the Judgment of the Apex Court in Shriram Finance (Supra), which is directly on the point, the obiter of the Apex Court in Raptakos Brett (supra) would not further the case of the Petitioners in so far as the relief which it has sought namely that the Suit be deemed to have been filed on the date when the firm was registered. Hence the order passed by the Trial Court rejecting application Exhibit 136 cannot be faulted with. No case for exercise of Writ Jurisdiction is made out. The Writ Petition is accordingly dismissed. Rule discharged with no order as to costs.
O R