DULICHAND AGRAWAL Vs. RAMCHANDRA PRASAD

JUDGEMENT

(1.) This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 1-4-2005 passed by 3rd Additional District Judge, Bilaspur, District Bilaspur in Civil Suit No. 3-B/2004 wherein the said court rejected the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908.

(2.) As per version of the appellant, he is a partner in the partnership firm Dulichand Agrawal carrying business under the partnership in the name and style of "Ganesh Rice Mill" at Bilha. Names of the partners constituting the partnership firm were incorporated by way of amendment in the plaint on 24-7-2001. It is further case of the appellant that he entered into contract with respondent No.1 namely Ramchandra Prasad on 12-1-1993 through respondent No.2 for sale of broken rice for Rs.44,201/-. Rs.28,204/- was balance and he filed a suit before the trial Court for recovery of the said amount, but plaint was rejected on the ground that same is barred by provisions of Section 69(1)(2) of the Indian Partnership Act, 1932 (for short, "the Act, 1932") and under Order 30, Rule 1 sub clause (i) and (ii) of CPC 1908. The trial Court failed to distinguish between the firm and firm's business. Firm's name need not be registered and it is only firm required to be registered under the Act, therefore, finding of the trial court is not liable to be sustained. Reliance has been placed in the matter of M/s. Mohatta Brothers vs. The Bharat Suryaodaya Mills Co. Ltd., reported in AIR 1976 SC 1703.

(3.) I have heard learned counsel for the appellant and perused the record of the trial court in which judgment /decree is passed.