1. The defendants have filed this first appeal against the judgment and decree dated 27-8-1999 (the decree signed on 10-9-1999) passed by Sri. Diwakar Singh, the learned Subordinate Judge - I, Bhagalpur in Money Suit No. 13 of 1995 decreeing the plaintiff-respondent No. 1s moriey suit for Rs. 24,39,884.24 paise.

2. The plaintiffs filed the aforesaid money suit for realization of Rs. 24,39,834.24 paise from the defendant No. 1. The plaintiffs case in short is that it is a partnership firm and is registered with the Government of Bihar and carries out civil constructions. The defendants issued tender notice for a project of Rs.30,00,000/- and the period for completion of the said project was seven months. The plaintiff submitted tender on 8-6-1984 which was accepted by defendant No. 3. The agreement was signed between the parties on 9-8-1984 and then the plaintiff started the. work and completed the same on 30-8-1985. The measurements were not recorded and were done on 12-8-1986. Since the prices of material and wages of labour had increased by the time when the plaintiff started working he submitted claim for Rs. 6,50,000/-. Subsequently the final bills were withheld by the defendants as stated in the plaint. The minute details of the pleadings are not necessary in this case and, therefore, are not mentioned in detail. The plaintiff claimed Rs, 40,9789/- towards escalation in the price of material and labour, 18% interest per annum on Rs.92,973/- and also refund of Rs. 4,93,788.34 paise being the rebate on the value of the work and refund and sales tax etc. and filed the suit.

3. The defendant Nos. 1 to 4 appeared and filed written statement contending that the suit is not maintainable because of misjoinder and non-joinder of necessary parties, cause of action and further that the claim is false, frivolous, imaginary and wrong. The claim of price for escalation was denied by the defendant. They have also denied the story of withholding sale tax and also denied the liability to pay interest. It was contended that the suit is not maintainable under Section 32 of the Indian Arbitration Act.

4. On the basis of the above pleadings the learned Court below framed the following issues:

"1. Is the suit of the plaintiff as framed maintainable?

2. Has the plaintiff got valid cause of action for the suit?

3. Is the plaintiff entitled to a decree for recovery of a sum of Rs. 24,39,884-24 paise plus interest against the defendants or not?

4. To what relief or reliefs is the plaintiff entitled to?"

5. The learned Court below after discussing the evidences available on record and the points raised by the parties found all the issues in favour of the plaintiffs and, therefore, decreed the suit.

6. The learned senior counsel Mr. N. K.Agrawal appearing for the appellants raised only one question in this appeal. He submitted that ort the date of presentation of the plaint the plaintiffs suit was barred under Section 69(2) of the Partnership Act and this point was raised by the appellants at the time of hearing of the suit in the Court below but the learned Court below rejected this point on the ground that there is no pleading in the written statement and there is also no evidence in support of the said fact. The learned counsel further submitted that he is not pressing any other question involved in this case except the maintainability of the suit filed by the,plaintiff-respondent No. 1. The learned counsel submitted that since the suit itself was not maintainable as barred under Section 69(2) of the Partnership Act the judgment and decree passed by the Court below is a nullity and, therefore, has to be set aside. The learned counsel in support of his contention relied upon various decisions. I will discuss the said decision later on. On this point alone the learned counsel for the appellants submitted that the judgment and decree are liable to be set aside.

7. On the other hand the learned Senior Counsel Mr. Verma appearing on bbhalf of