BANK OF KOOTHATTUKULAM Vs. ITTEN THOMAS

JUDGEMENT

(1.) PLAINTIFF is the appellant. PLAINTIFF is the Bank of koothattukulam, a firm represented by its Managing Proprietor. The first defendant issued a cheque for Rs. 3,700/- on 8. 10. 1947 in favour of the second defendant to be drawn on the Moovattupuzha branch of the Palai Central Bank Limited on 14. 10. 1947. The second defendant endorsed the cheque on 8. 10. 1947 itself in favour of the plaintiff-bank and received Rs. 3,700/ -. When the cheque was sent by the plaintiff-bank to the Moovattupuzha branch of the Palai Central Bank limited it was returned dishonoured on the ground that the first defendant had countermanded payment. It is alleged that the first defendant countermanded payment after knowing that the plaintiff-bank had paid the amount to the second defendant. The suit is for the amount paid by the plaintiff-bank with interest at 12 per cent per annum.

(2.) BOTH the defendants contested the suit. The first defendant contended that he issued the cheque in favour of the second defendant on 4. 10. 1947 and not on 8. 10. 1947, that it was a post-dated cheque bearing the date 14. 10. 1947, that the second defendant made him understand that he had purchased a lorry for which he had to pay Rs. 3,000/-, that the second defendant wanted a cheque bearing date subsequent to 10. 10. 1947 since he undertook to deposit the amount in the bank in the name of the first defendant before that date, that the second defendant had agreed that if the amount was not deposited within that time the first defendant might countermand payment, that when he came to know that the second defendant did not deposit the amount as undertaken by him he asked the bank not to encash the cheque, that neither the second defendant nor the plaintiff-bank had any right to present the cheque on 8. 10. 1947, that he was not liable for the amount, and that no notice had been issued to him. The second defendant contended that the plaintiff-bank which was a firm was not registered under the Travancore Partnership Act, that the suit was therefore not maintainable, that when he endorsed the cheque in favour of the plaintiff-bank he was told that the money would be paid to him only on the maturity of the cheque, that he did not receive any amount from the plaintiff-bank, that no notice was issued to him, and that he was not liable for any amount.

(3.) S. 58 of the Act (S. 59 of the Indian Act) relating to the filing of the statement and the entering of the name of the firm in the register of Firms reads thus: "58. When the Registrar is satisfied that the provisions of S. 57 have been duly complied with, he shall record an entry of the statement in a register called the Register of firms, and shall file the statement". Reading Ss. 57 and 58 together we are inclined to take the view that a firm cannot be said to be registered when the statement prescribed by S. 57 (1) and the required fee are sent to the Registrar of Joint stock Companies and that the registration of the firm is effected only when the entry of the statement is recorded in the Register of Firms and the statement is filed by the Registrar as provided in S. 58. The argument advanced by learned counsel for the appellant was advanced in Firm Ram Prasad-Thakkur Prasad v. Firm Kamta Prasad-Sita Ram (A. I. R. 1935 Allahabad 898 ). In that case also the statement and the fee were sent to the Registrar two days before the suit was instituted. In repelling the argument Kondall, J. said: "if S. 58 stand alone, this argument might have some force; but S. 59 shows that registration amounts to more than what is said in s. 58. The Registrar, under S. 59, must be satisfied that the provisions of S. 58 have been duly complied with, and he must record an entry of the statement in his register". Reference was also made to Lindley on Partnership, 10th edn. page 922, where the learned author says: "it is apprehended that registration is compete so soon as the prescribed statement has reached the Registrar; and that the filing of the statement and issue of the certificate are ministerial acts the omission of which would not deprive a limited partnership of the benefit of the act". Even if it is possible to accept this view, in the present case the statement sent by the Managing Proprietor of the firm reached the Registrar only on 12. 11. 1947 i. e. , two days after the suit was filed. It cannot therefore be held that the firm was registered before the suit was instituted.