1997 Supreme(Bom) 612

IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Kishore Kumar B. Zaveri another ..... Plaintiffs.
Versus
Navinchandra H. Somaiya others .... Defendants.
Notice of Motion No. 3159 of 1995 in Suit No. 2851 of 1995, decided on 17-11-1997.
Advocates appeared :
Ravi Kadam i/b M/s. N.N. Vaishnava Co., for the plaintiffs.
H.V. Gala, for the defendants No. 1 and 2.
Ms. Zena Daruwala i/b Wadia Gandhi, for the defendant No. 3.

Headnote:Section 28-Applicability of-When the dispute is not of any liability between tenant and landlord but only direction is sought that the tenant will not pay their share to co-owner. The case does not come in purview of Section 28 of Rent Act.- The present suit has been filed in individual capacities by the plaintiffs No.1 and 2. Consequently, it cannot be held that the suit is barred by the provisions of Section 69(2) or Section 69(2-A). So far as the objection with regard to the suit falling within the purview of Section 28 of the Bombay Rent Act, it is to be noticed that the relief claimed against the defendant No.1 is for recovery of money wrongly received by the said defendant. Against the defendant No. 3, the only relief sought is that the said defendant be restrained from paying the rent including the share of the plaintiffs to the defendants No.1 or 2.

       The counsel appearing for the defendant No.3 has stated that they are submitting to the order of this Court. In fact, by virtue of the orders passed by this Court earlier, the rent has already been paid in accordance with the shares of the parties. The defendant No. 3 is in no manner disputing the liability for payment of rent. Thus in my view, it cannot be said that there is in fact a lis under the Rent Act between the plaintiffs on the one hand and the defendant No.3 on the other hand. In my view, the objection raised by virtue of Section 28 of the Bombay Rent Act is not tenable.

       Sections 69 and 69(2-A)-Bar under-Whether attracted-Ex-partners of dissolved partnership firm became owners-Suit filed by one CO-owner for recovery of proportionate share of rent collected by other co-owner Defendant accepted share as per dissolution deed-Held, as suit can be said as having been filed by the co-owner in individual capacity bar not attracted.-A perusal of Section 69, subsection (2) would clearly show that no suit would lie to enforce a right arising from a contract instituted by or on behalf of a firm against any third party unless the persons suing have been shown in the Register of Firms as partners in the firm. The bar under Section 69, sub-section (2), can be raised when a suit is instituted in the name of a firm. The suit may be filed by the firm or on behalf of the firm by some other individual. If, the suit is filed by some individual, then it would be necessary that the names of the person suing are shown in the Register of Firms as partners of the firm. The bar under Section 69(2-A) would apply (i) when a suit is filed to enforce any right for the dissolution of a firm, (ii) for accounts of a dissolved firm, or (iii) any right or power to realise the property of a dissolved firm. The aforesaid suit shall be barred if, it is instituted by or on behalf of any person suing as a partner in a firm. Such kind of a suit may be against a firm or any person alleged to be or have been a partner in the firm. In such kind of a suit, the same would not be maintainable unless the firm is registered and the persons suing have been shown in the Register of Firms as Partners in the firm. Taking the aforesaid provisions of the section into account, the averments made in the plaint have to be examined. A perusal of the title of the plaint shows that the plaintiffs Nos. 1 and 2 are simply described as Indian inhabitants and then the address is given. Similarly, the defendants Nos. 1 and 2 have also been described as Indian inhabitants and the residential address is given. The defendant No.3 of course, is the tenant. In the title, it is nowhere mentioned that the plaintiffs Nos. 1 and 2 were the partners of a dissolved firm. It is also not mentioned in the title that the defendants Nos. 1 and 2 are the partners of a dissolved firm. In the plaint itself, the very first sentence states that the plaintiffs, the defendants Nos. 1 and 2 and one late Hariram Narayan Somaiya were the co-owners of the premises described therein. Thereafter, the respective shares of the co-owners are described. A little further the value of the respective shares is described. At each and every stage, the plaintiffs Nos. 1 and 2 and the defendants Nos. 1 and 2 have been referred to as the co-owners. In para 10 of the plaint. It is categorically stated that after the dissolution of the partnership firm, the mode of payment was to be in accordance with the respective shares of the Co-owners. It is that the defendant No. 1 has illegally Withheld the payments which were due to the plaintiffs. Taking the aforesaid averments at their face value. Taking the averments as they stand, it is a suit filed by the two co-owners against the other co-owners. Consequently, it would not be possible should that the suit is not maintainable in view of provisions of Section 69(2) or Section 69(2-A) of the Indian Partnership Act.

       Sections 69(2) and (2-A) Validity of bar-Where the suit is filed by individual against an individual, bar of Sec. 69(2) or 69(2-A) will not be applicable as it is operative only when suit is filed for or on behalf of the firm.

       Sections 69 and 69(2A)Pai1nership firm dissolved-Ex-partner -Co-owners--Rent collected by other co-owner-Suit filed for recovery of share by one of them-Dissolution deed entitles for share accepted-Filing of suit in individual capacity-No bar under Section 692(A).