A partnership firm not registered under Section 69 of the Partnership Act cannot have its plaint dismissed under Order 7 Rule 11 until trial issues are resolved.

JUDGMENT

Jyoti Singh, J. (Oral)--This revision petition assails the order/judgment dated 06.09.2022 passed by the learned Trial Court, whereby an application filed by the Petitioner herein under Order 7 Rule 11 read with Section 151 CPC has been dismissed. Petitioner herein is Defendant No. 1 before the Trial Court while Respondent is the Plaintiff and the parties are referred to hereinafter by their litigating status before the Trial Court.

2. The narrative of facts to the extent relevant for deciding the present petition and shorn of unnecessary details is that, Plaintiff runs its business in the name and style of `M/s. Ombir Panwar & Co.'. The suit was filed by the Plaintiff through Mr. Ombir Singh Panwar, one of its partners, for recovery of Rs.14.50 lakhs, against Defendant No.1 therein/Petitioner herein and other Defendants.

3. The case of the Plaintiff as set out in the plaint is that Defendants approached the Plaintiff at his office and in collusion with each other and some of their associates, allured and induced the Plaintiff to invest in their project namely, `Himland Executive Residences', which is a housing project. Plaintiff was assured that flats will be allotted in its name and believing the Defendants, Plaintiff invested huge sums of money in the project of the Defendants through cash/RTGS, details of which are furnished in the plaint.

4. Plaintiff has also averred in the plaint that Defendants had acknowledged the receipt of the payments amounting to Rs.14.50 lakhs, in writing. However, despite receiving the payments, Defendants neither allotted the flats in the name of the Plaintiff nor refunded the amount, despite several requests in this regard. An FIR bearing no. 0351/2016 has also been lodged at PS Anand Vihar against the Defendants and their associates.

5. Aggrieved by the actions of the Defendants, Plaintiff filed the suit, from which the present petition arises and Defendants filed their written statement, denying the averments in the plaint. Additionally, an application under Order 7 Rule 11 CPC was also filed by Defendant No. 1 for rejection of the plaint on the ground that the suit is barred under Section 69 of the Partnership Act, 1932 (hereinafter referred to as the `Act').

6. It was urged by Defendant No. 1 before the Trial Court that Plaintiff is a partnership firm and one of its partners has filed the suit, however, Plaintiff has not placed on record any document to substantiate that the partnership is registered. It was also the case of Defendant No. 1 that vide order dated 11.07.2018, Court had earlier dismissed an application filed by the Plaintiff under Order 12 Rule 6 CPC on the ground that there is nothing on record to suggest that Plaintiff is a registered firm and the transaction regarding the purchase of flats was between the Plaintiff-Firm and Defendant No.1-Company. On this ground, rejection of plaint was sought.

7. Plaintiff filed reply to the application denying the assertions made therein and also opposed the rejection of the plaint on an application under Order 7 Rule 11 CPC. Case of the Plaintiff was that the Court has already framed an issue `whether the suit is barred under Section 69(2) of the Act' and therefore, the application filed by Defendant No. 1 be dismissed. Reliance was placed on the judgments of the Supreme Court in Haldiram Bhujiawala and Another v. Anand Kumar Deepak Kumar and Another, (2000) 3 SCC 250 and Purushottam and Another v. Shivraj Fine Art Litho Works and Others, (2007) 15 SCC 58.

8. Having heard the learned counsels for the parties, the Trial Court disagreed with Defendant No. 1 and dismissed the application. Relevant paras