In my considered opinion, if the cross-examination of the plaintiff is perused, it can be easily seen that he has specifically denied the suggestion that his partnership firm is not registered with the Registrar Office. The only admission given by him is that he has not placed on record any document to show that it was a registered partnership firm and he was the partner of the said firm. It is a different thing to say that partnership firm is not registered and another thing to say that no document is produced to show that it is a registered partnership firm and further denying the suggestion that it was not a registered partnership firm. In view thereof, the document, which is now produced on record by the respondents showing that one partnership firm in the name of "Safal Land Developers, Promoters and Builders", is registered with the Registrar of Firm in the year 1999 itself, needs to be taken into consideration.
7. As regards the dispute raised, that the name of the said partnership firm in the registration certificate is different from the name of the partnership firm stated in the title clause of the suit filed by the respondents before the trial court, it needs to be decided on the basis of evidence to be adduced before the trial court as to whether the registration certificate is of plaintiff's partnership firm or otherwise. Ultimately it is for the trial court to come to the conclusion in one way or other as to whether this registration certificate pertains to the partnership firm of the plaintiff or not. At this stage, the said certificate cannot be discarded on that ground especially when, the address of the plaintiff mentioned in the plaint is of the partner of the said partnership firm, whereas the address mentioned in the registration certificate is of the principal place of the office of the said partnership firm, and therefore, both these addresses are bound to be different.
8. Hence, having regard to these facts on record, in my considered opinion, no interference is warranted in the impugned order of the trial court, rejecting the petitioners' application for rejection of the plaint under Order VII Rule 11 CPC on the count that it is barred by the provisions of Section 69 of the Act.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Civil Revision Application No. 89/2016
Decided On: 22.06.2017
Hitendra Purushottam Kadu and Ors. Vs. Safal Developers
Hon'ble Judges/Coram:
Dr. Shalini Phansalkar Joshi, J.
Citation: 2018(1) MHLJ 256
1. A short question is raised for consideration in this revision, which is preferred by the original defendants challenging the order dated 29/07/2016 passed by the Court of 7th Joint Civil Judge (Sr.Dn.), Nagpur in Special Civil Suit No. 934/2007, thereby rejecting the application filed by the petitioners/defendants under the provisions of Order VII Rule 11 CPC. Hence the revision is being decided at the stage of admission itself.
2. In a suit filed by respondent for specific performance of contract, the said application was filed by the defendants contending inter alia that though the suit was filed for specific performance of contract for enforcing the alleged rights arising from the contract entered into between the plaintiff firm and defendants, there was not a single document produced on record, as admitted by the plaintiff himself, to show that his partnership firm was registered. Hence, it was submitted that a suit by unregistered partnership firm being barred by law, the suit needs to be dismissed in view of the provisions of Section 69 of the Indian Partnership Act (hereinafter will be referred to as "Act" for convenience).
3. It is submitted by learned counsel for petitioners that this application was however dismissed by the trial court ignoring the admission given by the plaintiff in his cross-examination that he has not produced on record any document to show that partnership firm was registered. It is urged that considering the very admission given by plaintiff himself, learned trial court should have held that the suit is barred by law in view of the provisions of Section 69 of the Act and rejected the plaint at the very stage itself. According to him, impugned order passed by learned trial court, therefore, rejecting his application filed under Order VII Rule 11 CPC, being not just, legal and correct, it needs to be quashed and set aside.
4. Per contra, learned counsel for respondent/plaintiff has supported the impugned order, by pointing out that no such admission was given by the plaintiff in his cross-examination that the partnership firm was not registered; he has only stated that he has not placed on record any document showing the registration of the partnership firm. It is submitted that, in this revision the respondent has produced on record the xerox copy of the registration certificate of partnership firm, and in view thereof, the matter needs to be sent back to the trial court, without making any interference in the impugned order of the trial court.
5. Learned counsel for petitioners, however, submits that in the xerox copy of the registration certificate, which is produced by the respondent in this revision, the name of the partnership firm is mentioned as "Safal Land Developers, Promoters and Builders", whereas in the plaint the name of the partnership firm is shown as "M/s. Safal Developers through its Partner Prakash Santoshrao Mohod". It is urged that the address of the partnership firm given in the registration certificate is also different from the one given in the plaint, and therefore, it cannot be accepted that this registration certificate is of the same partnership firm, on whose behalf the suit was filed. It is also submitted that there was absolutely no averment made in the plaint that the said partnership firm was registered. Hence, it is urged that in the absence of any such averment, it cannot be accepted that the partnership firm was registered and hence in view of Section 69 of the Act, the suit was not maintainable.
6. In my considered opinion, if the cross-examination of the plaintiff is perused, it can be easily seen that he has specifically denied the suggestion that his partnership firm is not registered with the Registrar Office. The only admission given by him is that he has not placed on record any document to show that it was a registered partnership firm and he was the partner of the said firm. It is a different thing to say that partnership firm is not registered and another thing to say that no document is produced to show that it is a registered partnership firm and further denying the suggestion that it was not a registered partnership firm. In view thereof, the document, which is now produced on record by the respondents showing that one partnership firm in the name of "Safal Land Developers, Promoters and Builders", is registered with the Registrar of Firm in the year 1999 itself, needs to be taken into consideration.
7. As regards the dispute raised, that the name of the said partnership firm in the registration certificate is different from the name of the partnership firm stated in the title clause of the suit filed by the respondents before the trial court, it needs to be decided on the basis of evidence to be adduced before the trial court as to whether the registration certificate is of plaintiff's partnership firm or otherwise. Ultimately it is for the trial court to come to the conclusion in one way or other as to whether this registration certificate pertains to the partnership firm of the plaintiff or not. At this stage, the said certificate cannot be discarded on that ground especially when, the address of the plaintiff mentioned in the plaint is of the partner of the said partnership firm, whereas the address mentioned in the registration certificate is of the principal place of the office of the said partnership firm, and therefore, both these addresses are bound to be different.
8. Hence, having regard to these facts on record, in my considered opinion, no interference is warranted in the impugned order of the trial court, rejecting the petitioners' application for rejection of the plaint under Order VII Rule 11 CPC on the count that it is barred by the provisions of Section 69 of the Act.
9. In my considered opinion, the proper way to resolve this issue would be to direct the trial court to frame necessary issue as to whether the suit is barred by law in view of the provisions of Section 69 of the Act and to decide the said issue according to law.
10. At this stage, learned counsel for petitioners points out that the application made by the petitioners under Order XIV Rule 5 CPC before the trial court on 29/03/2016 for framing such issue is already dismissed by the trial court. However, perusal of the order passed below the said application by the trial court on 29/03/2016 reveals that the application to that effect was rejected considering that there was no averment in the plaint that the partnership firm is registered and no document was produced on record to show that it was registered and hence it was held that in the absence of pleadings, there was no necessity for framing such issue.
11. Now in view of the document, which is produced on record by the respondent/plaintiff showing that his firm with the name of Safal Land Developers, Promoters and Builders is registered as a partnership firm and in the registration certificate the name of respondent Prakash Santosh Mohod is mentioned as partner of that partnership firm, it becomes necessary to direct the trial court to frame the issue to that effect and if found fit to decide the said issue as preliminary issue. It will be in the discretion of the trial court.
12. Accordingly, this revision is disposed of as dismissed, with direction to the trial court to frame necessary issue about maintainability of the suit in view of the provisions of Section 69 of the Indian Partnership Act. It is left to the discretion of the trial court to decide whether the said issue should be tried as preliminary issue or otherwise, especially considering the fact that evidence is already recorded in the suit and the suit is part heard. With this direction, revision stands disposed of as dismissed with no order as to costs.
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