A suit by an unregistered partnership firm cannot be maintained if it arises from a contract, as per Section 69(2) of the Indian Partnership Act, 1932.

JUDGMENT

Amit Bansal, J. (Oral)

CS(COMM) 66/2015

1. Briefly, the case of the plaintiff is that after participating in a tender, it was allotted a unipole `Opposite Indian Oil Corporation Bhawan, FTC AHMS'. Accordingly, the plaintiff a entered into the agreement dated 16th December, 2013 with the defendant. The plaintiff claims that the site allotted was in violation of the Outdoor Advertisement Policy, 2007 (OAP) of the defendant, inasmuch as the site hindered the right of way and was in the middle of the road. It is further stated that the grievances of the plaintiff were not resolved and thus, the plaintiff surrendered the site in July/August, 2014.

2. Hence, the present suit was filed seeking the following reliefs:

"i. Pass a declaratory decree declaring the contract/agreement as well as the allotment letter dated 30.12.2013 as null and void ab initio being illegal and contrary to the provisions of the Outdoor Advertising Policy, 2007 and in violation of the order dated 06.05.2015 passed by the Hon'ble High Court of Delhi in WP(C) No.3367 of 2015;

ii. Pass a decree for recovery of a sum of Rs.58,79,832/- in favour of the Plaintiff and against the Defendant alongwith pendente lite and future interest @24% pa for the loss and damage caused to the Plaintiff by the Defendant through their illegal and wrongful acts;

iii. Pass a declaratory decree declaring the demand of Rs.53,63,610/- by the Defendant vide letter dated 18.06.2015 being arbitrary and illegal being in violation of the law;

iv. Pass a decree for recovery of sum of Rs.17,49,625/- towards security and advance MLF alongwith pendente lite and future interest @24% p.a. in favour of Plaintiff and against the Defendants which has been illegally forfeited by the Defendant;

v. Pass a decree/order for permanent injunction restraining the Defendant from taking any coercive action against the Plaintiff for recovery of any amount as license fee, damages or otherwise arising out of the contract in dispute"

3. The defendant has filed its written statement to the suit along with a counter claim.

4. Issues were framed in the suit on 13th November, 2018. The following issue, being issue no.1, was ordered to be tried as a preliminary issue:

"1. Whether the suit filed by an unregistered partnership firm is maintainable in view of the bar imposed by Section 69 of the Indian Partnership Act, 1932? OP"

5. Written submissions along with judgments in support with respect to the above issue have been filed on behalf of both the counsels along with the documents in support.

6. It is the contention of the plaintiff that the present suit is not barred under Section 69(2) of the Indian Partnership Act, 1932 as in the present suit, the plaintiff is not seeking to enforce the right arising from a contract. In fact, the plaintiff is seeking enforcement of a right under common law and therefore, the bar under Section 69(2) would not apply in the present case. Reliance is placed on the judgment of the Supreme Court in Raptakos Brett & Co. v. Ganesh Property, (1998) 7 SCC 184 to submit that the reference to the contract is only by way of an historical event, the same would not be hit by the bar under Section 69(2) of the Partnership Act. Reliance is also placed on the judgment of Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, (2000) 3 SCC 250 to submit that where the plaintiff seeks enforcement of a statutory right or a common law right, the bar under Section 69(2) of the Partnership Act, 1932 would not apply.

7. Per contra, the senior counsel appearing on behalf of the defendant has drawn my attention to averments made in the plaint to