IMPORTANT POINT
A suit for specific performance can be maintained by a partner even if not registered, provided the firm is engaged in business dealings.

JUDGMENT :

Sandipkumar C. More, J.

1. An exception is taken to the order passed by learned 3rd Civil Judge, Senior Division Dhule, i.e. the learned trial Court on 29.06.2022 below (Exh.15) in Special Civil Suit No. 150 of 2022, by the present applicant, who is defendant in the aforesaid suit. Under the impugned order, the application (Exh.15) filed by the applicant/defendant under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint has been rejected.

2. The present respondent i.e. original plaintiff has filed the aforesaid suit for specific performance of agreement to sale. It is contended that in the year 1988, the applicant as well as Ashrafbi Rshid Khan Pathan had decided to sell the suit property mentioned in the plaint to the erstwhile partner of respondent/plaintiff Firm. The defendant had agreed to sale the suit property for consideration of Rs. 2,07,000/- under the agreement of the sale and certain part of the said consideration was also paid by Chandrakant Kele vide cheque bearing No. 607008. The defendant applied for necessary permission for change of user of the land and to sell the same in favour of Chandrakant Kele. Thereafter, on 01.12.2021 a fresh agreement to sale was executed between the plaintiff and the defendant, but the defendant thereafter deliberately refused to execute the sale deed and therefore, the aforesaid suit was filed by the respondent Firm. In the said suit the applicant/defendant filed application for rejection of the plaint below (Exh.15) which was replied by respondent/plaintiff and thereafter the learned trial Court rejected the aforesaid application vide impugned order and hence this Civil Revision Application.

3. The learned counsel for the applicant vehemently submitted that the learned trial Court has definitely erred in rejecting the application for rejection of the plaint. According to her, there is bar for filing the present suit as per Section 69 of the Indian Partnership Act, 1932 as the person who filed the present suit i.e. Vishal Chandrakant Kele was not a partner of the Firm and therefore, as per Section 69 of the Indian Partnership Act, he could not have filed the present suit. According to her, though the suit is filed on 08.03.2022, but at the relevant time Vishal Kele was not partner of the respondent/Firm. In support of her contention she relied upon the Judgment in the case of M/s Shreeram Finance Corporation Vs. Yasin Khan and others reported in AIR 1989 Supreme Court 769 .

4. On the contrary, the learned counsel for respondent/Firm strongly opposed the submissions made on behalf of the applicant by filing two affidavits-in-reply. She came with the case that Deeds of re-constitution of Firm of the year 2001 and 2020 were already placed on record along with the plaint on the very day of its filing, wherein it was clearly mentioned that Vishal Kele, who has filed the suit, was already inducted as a partner. She also filed necessary documents mentioning the name of Vishal Kele as a partner of the respondent/Firm on record, as directed by this Court. In the alternative, she submitted that even if it is presumed that Vishal Kele was not partner of the said Firm, but under the common law, for filing suit for specific performance of contract, there cannot be any bar under Section 69 of the Indian Partnership Act. She also relied on the following judgments :-

(i) Gwalior Oil Mills Vs. Supreme Industries AIR Online 1999 SC 773

(ii) Shiv Developers Through its Partner Sunilbhai Somabhai Ajmeri Vs. Aksharay Developers & Others in Civil Appeal No. 785 of 2022 (Arising out of SLP (C) No.20262 of 2018)

(iii) Haldiram Bhujiawala And Another Vs. Anand Kumar Deepak Kumar And Another (2000) 3 Supreme Court Cases 250.

5. Heard rival submissions and also perused the documents on record along with the citations relied upon by either of the parties.

6. It is significant to note that the other particulars in respect of dispute between the parties are not subject matter of the applic