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1958 Supreme(Bom) 15
IN THE HIGH COURT OF BOMBAY
SHAH AND MIABHOY JJ.
ombay Cotton Export Import Co., Bombay, Appellant
Versus.
Bharat Suryodaya Mill Co. Ltd., Respondent.
ppeal No. 371 of 1954, Dt- 17-2-1958 against decision of Civil J., Senior Division at Ahmedabad in C. S. No. 46 of 1951.
A registration of a firm under the Partnership Act, 1932, made prior to the partition of India is valid and remains operative even after the partition, and the firm can rely upon that registration to avoid the bar of S. 69 of the Indian Partnership Act.
Headnote:
PARTNERSHIP ACT - REGISTRATION OF FIRM - VALIDITY OF REGISTRATION PRIOR TO PARTITION - EFFECT OF PARTITION ON REGISTRATION - S. 69(2) OF THE INDIAN PARTNERSHIP ACT, 1932.
Fact of the Case:
The plaintiffs, a registered firm carrying on business in Bombay, filed a suit against the defendants for a decree for the price of certain cotton bales sold to them. The defendants contended that the plaintiffs were not a registered firm at the date of the suit and that the subsequent registration of the plaintiffs as a firm in Bombay did not assist them in avoiding the bar of S. 69(2) of the Partnership Act.
Finding of the Court:
The court held that the registration of the plaintiffs' firm in Karachi prior to the partition of India was valid and that the plaintiffs were entitled to rely upon that registration to avoid the bar of S. 69 of the Indian Partnership Act. The court further held that the partition of India did not invalidate the registration of the plaintiffs' firm and that the plaintiffs were entitled to file a suit on a contract in a Court within the Dominion of India relying upon that registration.
Issues: 1. Whether the registration of the plaintiffs' firm in Karachi prior to the partition of India was valid? 2. Whether the partition of India invalidated the registration of the plaintiffs' firm? 3. Whether the plaintiffs were entitled to rely upon the registration of their firm in Karachi to avoid the bar of S. 69 of the Indian Partnership Act?
Ratio Decidendi: 1. The Partnership Act, 1932, was applicable to Karachi in January 1947 and the plaintiffs were properly registered as a firm in January 1947. 2. The partition of India did not invalidate the registration of the plaintiffs' firm as the registration was properly and validly made by the Registrar of Firms duly appointed under the Act and exercising powers thereunder. 3. The plaintiffs were entitled to rely upon the registration of their firm in Karachi to avoid the bar of S. 69 of the Indian Partnership Act as the registration was valid and remained operative in the absence of any statutory provision which affected or invalidated that registration.
Final Decision: The court set aside the decree passed by the learned trial Judge and remanded the suit for trial according to law.
his is an appeal by the Bombay Cotton Import Export Company claiming to be a registered firm carrying on business as merchants and commission agents in Bombay challenging a decree dismissing their suit for a decree for Rs. 1,42,634-13-4 against the Bharat Suryodaya Mills Co. Ltd. The plaintiffs suit was dismissed by the learned trial judge on the view that the plaintiffs not being a registered firm at the date when the suit was instituted, the suit was barred by S. 69 (2) of the Indian Partnership Act, 1932.
2) The plaintiffs carried on business in cotton in Karachi prior to the partition of India. The plaintiffs applied for registration under the Indian Partnership Act, 1932, to the Registrar of Firms at Karachi for registration of their firm, stating that they were carrying on business in Karachi and in Bombay. The plaintiffs were accordingly registered on 13-1-1947 as a partnership under the Indian Partnership Act, 1932. The plaintiffs filed this suit in the Court of the Civil Judge, S. D., Ahmedabad, on 9-3-1951 against the defendants for a decree for Rs. 1,42,634-13-4 being the price of certain cotton bales sold to the defendants. It appears that the plaintiffs, subsequent to the institution of the suit, got themselves registered on 15-3-1951, with the Registrar of Firms in Bombay as a firm under the Indian Partnership Act, 1932, as amended by the Adaptation of Laws Order, 1950. The defendants contended that the plaintiffs were at the date of the suit not a registered firm and the subsequent registration of the plaintiffs as a firm in Bombay did not assist the plaintiffs in avoiding the bar of S. 69 (2) of the Partnership Act. We may at once observe that this Court has held in Prithvising v. Hassanalli, 52 Bom LR 862: (AIR 1951 Bom 6), that the institution of certain suits by a partnership is barred by S. 69 (2) of the Indian Partnership Act, unless the partnership is registered at the date of the institution and the initial defect cannot be cured by registration of the partnership subsequent to the date of the suit. If, therefore, the defendants are right in the contention that they have raised that there was no valid registration of the plaintiffs firm prior to the date of the institution of the suit on the authority of the case in 52 Bom LR 862: (AIR 1951 Bom 6), the plaintiffs suit must be dismissed. But the plaintiffs contend that they were registered in Karachi prior to the1 partition of India, as a firm under the Indian Partnership Act and that they were entitled to rely upon that registration to avoid the bar of S. 69 of the Indian Partnership Act. Section 69 of the Indian Partnership Act, by sub-s. (2), provides :
"No suit to enforce a right arising from a con-tract 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."
The expression registered has not been defined in the Act. But by S. 58, the contents of an application for registration have been prescribed and by S. 59 of the Act, it is provided that
"when the Registrar is satisfied that the provisions of S. 58 have been duly complied with, he shall record an entry of the statement in a register called the Register of Firms, and shall file the statement."
(3) In 1947 the plaintiffs applied under S. 58 to the Registrar of Firms appointed under the Indian Partnership Act, 1932, for registration as a firm and they were duly registered. The Indian Partnership Act undoubtedly applied to Karachi in January 1947 and the plaintiffs were properly registered as a firm in January 1947. But the defendants contend that after partition of British India as it then was, the plaintiffs relying upon the registration by the Registrar at Karachi-cannot sue to recover a debt in a Court in India without in the first instance obtaining registration afresh from a Registrar appointed under the Indian Partnership Act
