ORIENTAL HOTELS LIMITED Vs. KASHMIR HANDICRAFTS

JUDGEMENT

(1.) This is an application to dismiss C.S No. 428/93. The applicant/defendant in his affidavit has stated briefly as follows:

(2.) The respondents in their counter contend briefly as follows: The application praying for an order of dismissal of C.S 428/93 is not maintainable. The father of the deponent Of the counter affidavit Md. Amin Mir of Mir Sons Furriers got the shop in the applicant's hotel under an agreement dated 8.4.76 for a period of 5 years from 1.2.1975 to run business in crafts, woollen Shawls etc. Mir Sons Furriers was converted into a partnership business consisting of the deponent, his brother Irfan Yusuf Mir and their father as partners. The Partnership was made and instituted at Sri Nagar. The partnership business is being carried on at Sri Nagar in the name and style of Handicrafts INN at Agra under the name and style of Oriental Arts and at Madras under the name and style of Kashmir Handicrafts. The partnership came into existence by means of a deed dated 26.7.75 It was reconstituted from 1.4.92 by taking the son of the deponent also as a partner under a deed of partnership dated 6.5.1992 The partnership was duly registered with the Sub-Registrar of Sri Nagar. The said Kashmir Handicrafts are the respondents herein and the plaintiff in the suit and the deponent is one of its partners. The applicants have recognised Kashmir Handicrafts in occupation of the shop in the agreement dated 19.6.1990 and 24.8.90 produced by the applicant. It is clearly mentioned that the other party to the said document is Md. Amin Mir, Partner, C/o. Handicrafts Inn, Indian Inhabitant to carry on business in the firm name and style of Kashmir Handicrafts in the applicant's hotel. Md. Amin Mir had signed the said document for Kashmir Handicrafts as a partner. Kashmir Handicrafts has been recognised, accepted and approved as a tenant/licensee of the shop in the applicant's hotel. The said Kashmir Handicrafts have got every right and authority to sue the applicants herein. As per Sec. 1 of the Partnership Act, the said Act extends to the whole of India, except to Jammu and Kashmir. Hence the question of the applicability of Sec. 69 of the Act does not arise. While giving instructions to the counsel, it was stated by the deponent that their is a partnership firm duly registered at Sri Nagar. Basing on that, in the plaint, it is stated that the partnership firm was duly registered under the partnership Act by an inadvertent mistake on the impression that it was registered under the Indian Partnership Act. That is why the mistake has crept in the plaint. The respondent has not committed any offence of perjury and have no such intention also. The respondent has no intention to mislead the court. The plaintiff Kashmir Handicrafts does not require any registration under the Partnership Act. The application is therefore liable to be dismissed.

(3.) The point for consideration is, whether the suit C.S 428/93 is liable to be dismissed on the ground that the suit has been filed by the plaintiff who is not a firm registered under the Partnership Act?