GANDHI Vs. KRISHNA GLASS PVT LTD

JUDGEMENT

(1.) This is an appeal preferred by the original plaintiffs against the judgement and order dt/- March, 22, 1983, passed by the learned single Judge in Suit No. 17 of 1973 (reported in 1983 Mah LJ 1036) dismissing the suit on the preliminary ground that the suit is not maintainable for non-compliance of the provisions of S.69, Sub-Sec. (2) of the Partnership Act, 1932. The facts in so far as they are material are not in dispute. In the plaint the appellants are described as a partnership firm registered under the Partnership Act and carrying on business at 90/92, Kazi Syed Street, Bombay-3. In the plaint at is further averred that the plaintiffs are a partnership firm registered under the Partnership Act and that they carry on the business of supply of silica sand, dolomite limestone and other minerals. In para 7 of the plaint it is stated that there was a talk in relation to the suit contract between Rasiklal Narottam Gandhi, a partner of the plaintiff firm and one Dhirubhai Boda who was connected with the respondent company. The plaint is signed by Rasiklal Gandhi on behalf of the appellants firm. He has also verified the plaint as a partner of the plaintiffs-firm stating inter alia that the contents of para-7 of the plaint are true to the knowledge of the said Rasiklal. It is not in dispute before us that the firm started on Oct. 29, 1962, and was registered on September, 11, 1964. The suit has been filed on Dec. 11, 1972. In the written statement the respondents did not admit that the appellants are a partnership firm registered under the Partnership Act or that they carry on the business of supply of silica sand, dolomite limestone or other minerals as alleged or at all.

(2.) At the time of the hearing of the suit the appellants produced a xerox copy of the extract from the Register of Firms. This extract bears out that initially the firm was started on Oct. 21, 1962, with five partners and was got registered on Sept. 11, 1964. There were in addition three minors admitted to the benefits of the partnership on different dates and the entries give the respective dates on which the minors would attain the majority. As regards one person by name Bharatkumar, it appears that the necessary dates have not been typed while taking out the extract and may be that he was also a minor admitted to the benefits of the partnership. What is material for our purpose is the entry dt/- Dec. 11, 1973, which shows that two partners viz. Rasiklal Narottamdas Gandhi and Kiritkumar Manekchand Gandhi joined the partnership firm and became partners thereof on April 8, 1966. It is this Rasiklal Gandhi whose name is mentioned in para-7 of the plaint as a partner of the appellant-firm and who has declared the plaint as a partner on behalf of the firm. The respondents amended their written statement making clear averment as regards the non-maintainability in the suit on the ground that the name of Rasiklal who is a partner of the appellant-firm has not been shown in the Register of Firms on the date of the filing of the suit as required by the provisions of S.69(2) of the Partnership Act. It was contended that the suit is not maintainable for non-compliance of the mandatory requirements of S.69(2) of the Act. The learned single Judge accepted this contention and dismissed the suit on this preliminary ground.

(3.) The short question that arises before us is whether the fact that the name of one of the partners whose name was not recorded in the Register of Firms as a partner on the date of the filing of the suit would attract the bar of the provisions of S.69(2) of the Partnership Act, notwithstanding the fact that the name of such a partner is recorded in the Register of Firms subsequent to the filing of the suit.