The suit by the unregistered firm to enforce a right arising out of a contract was barred by Section 69(2) of the Indian Partnership Act.

Sham Sunder, J.

1. This appeal, is directed, against the judgment and decree, dated 13.10.2005, rendered by the Court of Civil Judge, (Senior Division), Karnal, vide which, it dismissed the suit of the plaintiffs (now appellants), and the judgment and decree, dated 07.03.2006, rendered by the Court of District Judge, Karnal, vide which, it dismissed the appeal.

2. According to the plaintiffs/appellants, they had supplied sand to defendants, vide bill No. 2, dated 18.06.93, worth Rs. 52,289.60/-, vide bill No. 4, dated 28.06.1993 for an amount of Rs. 73,427.20/-, and vide bill No. 6, dated 06.07.1993 for an amount of Rs. 11,417.60/-. It was stated that, in this manner, the sand for a total amount of Rs. 1,37,134/-, was supplied, to the defendants, by the plaintiffs/appellants. The sand, was received, and receipts were duly signed, by the employees of defendants. The defendants, did not make payment of the amount, due against them. A legal notice, was served, upon them, for payment of the amount, but to no avail. On the final refusal of the defendants, to make payment of the amount, due against them, left with no other alternative, a suit for recovery with interest, was filed.

3. The defendants/respondents, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that no contract, was ever entered into between the parties, for the supply of sand. It was further stated that the suit, was barred, by time. It was further stated that, there was no jural relationship, between the parties.

4. On the pleadings of the parties, the following issues were struck :-

(i) Whether the plaintiff is entitled to recover the suit amount of Rs. 2,11,187/- being costs of the sand of Rs. 1,37,134.40/ and interest @ 18% per annum of Rs. 74,052.60/-, as claimed for ? OPP.

(ii) Whether the suit is within time ? OPD.

(ii) Whether the plaintiffs have got no cause of action to file the present suit as mentioned in P.O. of the written statement in para No. 2 ? OPD.

(iv) Whether the present suit is an abuse of the process of the Court ? OPD.

(v) Relief.

5. After hearing the Counsel for the parties and on going through the evidence and record of the case the trial Court, dismissed the suit of the plaintiffs.

6. Feeling aggrieved, an appeal was preferred, by the plaintiff/ appellants, which was dismissed, by the Court of District Judge, Karnal, vide judgment and decree dated 07.03.2006.

7. Still feeling dissatisfied, the instant Regular Second Appeal has been filed by the plaintiffs/appellants.

8. I have heard the Counsel for the parties and have gone through evidence and record of the case carefully.

9. The following substantial questions of law arise in this appeal for the determination of this Court :-

i) Whether the Courts below, recorded perverse findings, in the absence of any plea, having been raised by the defendants, in the written statement that M/s. Maheshwari and Company, was an unregistered firm and as such the suit filed by its partners to enforce a right arising out of a contract was not maintainable being barred by Section 69(2) of the Partnership Act?

ii) Whether the Courts below recorded a perverse finding, on misreading and misappreciation of evidence that no order was placed, by the defendants with the plaintiffs for the supply of sand nor they supplied the same for the amount claimed by them (plaintiffs)?

10. The Counsel for the plaintiffs/appellants, submitted that no plea, was taken by the defendants, in the written statement, that M/s. Maheshwari and Company, was an unregistered firm, and the plaintiffs/appellants, being the partners thereof, were not competent to maintain a suit. He further submitted that even no plea was taken arising out of the contract. He further submitted that on the other hand the defendants, in the written statement, took up the plea that there was no contract, between the parties, for the supply of sand, nor any sand, was supplied. H