BALAKRISHNA TRADING CORPORATION Vs. KRISHNA KURUP

JUDGEMENT

(1.) BEFORE a Court permits a technical plea to triumph every reasonable endeavour should be made to avoid such a consequence. Two suits were instituted by a firm on the strength of two promissory notes executed by the defendant; both were dismissed since a plea based on the bar of s. 69 (2) of the Partnership Act found favour with the lower court.

(2.) I shall dispose of both the C. R. Ps. by a common judgment because the suits are between the same parties, and have both been dismissed on the same point viz. , the bar of S. 69 (2) of the Partnership Act. The plaintiff, in both the suits, is a firm registered under S. 59 of the Indian partnership Act. In fact the promissory-notes executed by the defendant show that the promisee is a registered firm. What is more, Exts. A4 and A5 also prove that the firm is registered. Therefore, the contention in the written statement that the firm is not registered has not found favour with the lower court. But, according to the learned Munsiff, there are two ingredients to be established under S. 69 (2), the first being the registration of the firm and the second being the showing of the plaintiff-partner in the register of firms as a partner of the firm. He argues, after extracting S. 69 (2): "that means two conditions have to be satisfied viz. (1) the firm is registered (2) the person suing is shown in the Register of firms as a partner in the firm. The best evidence to prove that the name of the plaintiff is shown in the Register of Firms as a partner of the Balakrishna trading Corporation is the entry in the Register of Firms or a certified copy thereof which the plaintiff has failed to produce. In the absence of such evidence, the plaintiff can hardly claim to have successfully proved that his name is entered in the Register of Firms as a partner of the firm. " For failure to prove the second part of S. 69 (2) of the partnership Act, the two suits have been dismissed.

(3.) IT appears to me, although I am not called upon finally to pronounce upon it in the light of the finding already recorded by me, that S. 69 (2) does not bear the construction put upon it by the learned munsiff. Of course, the firm must be registered; but is it obligatory that the name of the suing partner should be shown in the register of firm although, ordinarily, every partner's name would be shown in the register? The legal requirement is that the person suing should be a partner or should be shown in the register of firms as a partner. I read S. 69 (I) and, in the same manner s. 69 (2) in the following way. "the person suing is a partner in the firm or has been shown in the Register of Firms as a partner of the firm". In this case, admittedly, the person suing is a partner in the firm and the second condition in S. 69 (2) is therefore fulfilled.