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PARTHA SAKHA DATTA. J.
Sri Velji Narayan Patel - Appellant
versus
Sri Jayanti Lal Patel - Respondent
C. O. No. 2736 of 2008,
Decided on : 23-12-2008
PARTNERSHIP ACT, 1932 - SECTION 69 - Suit by Partner Against Unregistered Firm - Maintainability - Section 69(1) of the Partnership Act, 1932 bars a suit by a partner against an unregistered firm to enforce a right arising from a contract or conferred by the Act. The suit is incompetent and the court has no jurisdiction to entertain it.
Fact of the Case:
Velji Narayan Patel, one of the partners of an unregistered firm, M/s. Bhagat & Company, filed a suit against the other partner, Jayanti Lal Patel, seeking various reliefs, including a declaration of his ownership of 50% share in the partnership business, an injunction restraining the defendant from preventing him from entering the business, and an order for the defendant to produce the books of accounts and disburse the plaintiff's share of profits.
Finding of the Court:
The court held that the suit was not maintainable under Section 69(1) of the Partnership Act, 1932, as the firm was not registered and the plaintiff was seeking to enforce rights arising from the partnership deed.
Issues: Whether a suit by a partner against an unregistered firm to enforce rights arising from a contract or conferred by the Partnership Act is maintainable.
Ratio Decidendi: The court relied on the provisions of Section 69(1) of the Partnership Act, 1932, which states that no suit can be instituted by a partner against an unregistered firm to enforce a right arising from a contract or conferred by the Act. The court also referred to the decisions in Sunderlal and Sons v. Jyogendra Nath Singh and Raptakos Brett & Co. Ltd. v. Ganesh Property, which held that Section 69(1) is a mandatory provision and bars the maintainability of such suits.
Final Decision: The court allowed the defendant's application under Order 7, Rule 11(d) of the Code of Civil Procedure and set aside the order of the trial court rejecting the application. The court held that the suit was not maintainable and dismissed it.
The order dated 14th August, 2008 passed by learned Civil Judge, Junior Division, 1st Court. Howrah in T.S. No. 90 of 2007 is under challenge at the instance of the defendant-petitioner.
2. The facts of this case are these :-
Velji Narayan Patel, Jayanti Lal Patel, Bhimjee Patel and Khimji Patel were four brothers. Their wives purchased Plot No. 15845, 15846 and 15847 comprised in Khatian No. 3647 and 5136 of Mouza-Bally by separate four deeds of sale sometime in the year of 1989. Then their husbands obtained tenancy from their wives in respect of the lands comprised on the said plots of land and the four brothers commenced a partnership business in the name and style of M/s. Bhagat & Company. Sometime after running of the partnership business brothers i.e. Bhimjee and Khimjee retired from the partnership business. The two other brothers i.e. the plaintiff and the defendant Jayanti and Velji formed a partnership firm in the name and style of M/s. Bhagat and Company by a partnership deed dated 15th of April, 2000 but the business was effective from 1st April, 2000. Terms and conditions of partnership business were embodied in the document. The two brothers fell out. The plaintiff Velji was allegedly debarred from participating in the partnership business. He was allegedly not allowed to enter the office and thus the plaintiff instituted the Title Suit being No. 96 of 2007 before the learned Civil Judge, Junior Division, 1st Court, Howrah praying for following relief's
a. Decree for declaration that the plaintiff is the owner of 50% share of the said partnership business under the name and style of M/s. Bhagat & Co. at premises No. 5/7, Mahendra Bagchi Road, P.O. & P. S. Bally, District Howrah.
b. Decree for declaration that the plaintiff is entitled to have and enjoy the 50% share of the said partnership business, under the name and style of M/s. Bhagat & Co. at premises No. 5/7, Mahendra Bagchi Road, P.O. & P.S. Bally, District.
c. Decree that the defendant is permanently restrained from preventing the plaintiff from entering into the business in any manner of the said partnership business.
d. Decree for declaration that the defendant is liable to submit and produce all the books of accounts, Statement of Accounts, Balance Sheet and, Relevant Papers and Documents of the said partnership business.
e. Decree for declaration that the defendant is liable to disburse and pay the share of profit of the plaintiff in respect of the said business since 1-4-2000 till date to the plaintiff.
f. Permanent injunction restraining the defendant from obstructing and/or interfering with the right of the said partnership business of the plaintiff and/or entering and/or enjoying with peaceful possession of the said partnership business under the name and style of M/s. Bhagat & Co. at premises No. 5/7 Mahendra Bagchi Road, P.O. & P. S. Bally, District Howrah.
3. The defendant appeared and filed a petition under Order 7, Rule II(d) of the Civil Procedure Code praying for rejection of the plaint on the ground that the suit is not maintainable in view of the provision ofSection 69 of the Partnership Act.
4. The learned trial Court was not inclined to accept the contention of the defendant holding that Section 69 of the Partnership Act does not clearly bar the jurisdiction of the civil Court as it only provides the right to sue of partners in the case of registered or unregistered business. Accordingly, the application under Order 7, Rule II(d) of the Civil Procedure Code which was filed by the defendant was rejected and being aggrieved with the order of rejection this application under Article 227 of the Constitution of India has been filed by the defendant to challenge the order to be illegal and without jurisdiction.
5. I have heard Mr. N. Bhattacharya, learned advocate appearing for the petitioner and Mr. S. K. Mukherjee along with Mr. S. K. Sarkar, learned advocates for the opposite party.
6. It is the submission of the learned advocate for the petiti
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