Non-compliance of requirements not a formal defect.

Sathiadev, J.

1. Defendant in O.S. No. 1293 of 1984 on the file of II Additional Subordinate Judge, Tiruchirapalli is the petitioner. Plaintiff is the sole respondent. Plaintiff filed the suit based on equitable mortgage and for other reliefs, and at the stage when defendant was examined as D.W.I, he filed I.A. No. 466 of 1987 under Order 23 Rule 1(3) and Section 151, Civil Procedure Code seeking permission to withdraw the suit with liberty to file a fresh suit in respect of the subject-matter of the present suit. The suit was filed by M/s. R.S.S. Vashtrad & Company through one of its partners M.M. Nalavad. He had sworn to before Court that he had filed Exhibit A-2 partnership deed to show that he is a partner of the plaintiff Firm even prior to 10-1-1983, but, however, this fact was not intimated to the Registrar of Firms by the Auditor of the Firm, and that entry has been made in the Register only during the pendency of the suit, and therefore it being a formal defect, which would not go into the root of the matter, he had been advised to file a fresh suit, and therefore, he sought for permission to withdraw the suit with liberty to file a fresh suit.

2. This was opposed by defendant claiming that it is only after cross-examination of the plaintiff, application had been made to include the name of Mr. Nalavad as a partner on 22-5-1987 and accordingly registered by the Registrar of Firm, and that on the date of suit, he was not a partner, and therefore, had no right to file the suit, and hence it is non-est in the eye of law.

3. The Court below held that the suit as filed is not void, and that it would be proper to grant the relief as prayed for and directed payment of Rs. 200. It is against the said order, this revision petition is filed.

4. The sole point which arises for consideration is, whether the non-compliance of the requirements of Section 69(2) of Indian Partnership Act is a formal defeat or its requirement is mandatory, and in its absence, a suit filed in this manner is a void suit;

5. Learned Counsel Mr. E. Padmanabhan, would straightway rely upon the decision in Loonkaran Sethia v. Ivan E. John in which dealing with the scope of Section 69 of the Act, it was held that it is mandatory in character and that a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract within the ambit of Section 69.

6. In the matter of Abani Kanta Pal, a Division Bench in dealing with the scope of the Section held that if a Firm is not registered, excepting in a suit as contemplated under Section 69(3) of the Act; the Court will have no jurisdiction to entertain a suit in violation of Section 69(1). It further added:

... In other words, the plaint that has been filed by the plaintiff will be considered a void plaint, if it contravenes the provisions of Sub-sections (1) and (2) of Section 69 of the Partnership Act...

A Division Bench of the same Court in an earlier decision in Ram Kumar Shew Chandrai, a Firm v. Dominion of India held that if the name of the person who was partner on date of suit is not shown in the Register then the suit as filed is not maintainable. A Division Bench in Bank of Koothattukulam v. Thomas held:

It is necessary not only that the firm should be registered, but the person suing must be shown as a partner in the firm. And when it is found that on the date when the plaint is filed the second part of this condition has not been carried out then Section 69(2) is not complied.... The registration after the institution of the suit cannot cure the defect of non-registration before the date of suit.

7. A Division Bench of this Court in Buhari Trading Co. v. Star Metal Co. (1983)1 M.LJ. 10 A.I.R. 1983 Mad. 150: in dealing with the dismissal on the ground that the plaintiff there in was an unregistered firm, held that it would not be a bar to file a fresh suit on the same cause of action after the firm gets registered, and for doing that, no permission is needed