RAMNIKLAL MOHANLAL CHAWDA Vs. SHARAD VASANT KOTAK

JUDGEMENT

(1.) THIS appeal raises a short but interesting question relating to interpretation of section 69 (2a) of the Indian partnership Act, 1932 (hereinafter called the act ). The facts, insofar as they are material, are not in dispute. Under a deed of partnership dated 29th November, 1979, a partnership firm by name M/s Paramount Builders was constituted by the appellant, the respondents Nos. 1 to 4, late Smt. Hemkuvar Kotak and late Shri Mohanlal Chawda. The firm was duly registered with the Registrar of firms on 11th December, 1980 under registration no. 158675. Mohanlal Chawda died on 6th May, 1986. Upon Mohanlal s death, the respondent No. 5, his widow, was admitted to the partnership under a modified deed of partnership dated 20th October, 1986. On 3rd November, 1992 the partnership was modified by a further deed of partnership executed between the appellant and the respondents Nos. 1 to 5 and late Smt. Hemkuvar Kotak. Smt. Hemkuvar kotak died on 20th September, 1994. On her death the shares of the appellant and the respondent No. 5 augmented from 12. 5% to 16. 25%, respectively. On 15th December, 1994 the appellant gave a notice of dissolution and thereafter the present suit was filed for dissolution and account. Along with the suit a notice of motion was taken out for interim reliefs. It seems that the application for interim reliefs was opposed by the contesting respondents mainly on the ground that the suit was not maintainable under section 69 (2a) of the Act. The appellant thereafter took out Chamber Summons No. 301 of 1997 for amendment of the plaint. By the proposed amendment the appellant sought to contend that recording of changes and/or modifications under subsequent deeds of partnership dated 20th october, 1986 and 3rd November, 1992 are in the nature of ministerial acts which does not affect the original registration of the firm of M/s paramount Builders, and in the alternative the validity and constitutionality of sub-section (2a)of section 69 was challenged as being violative of articles 14 and 19 (1) (g) of the Constitution. By order dated 6th May, 1997 (since reported in 1997 (2) Mh. LJ. 731) the learned single Judge dismissed the chamber summons for amendment on the ground that the suit itself is not maintainable for non-compliance of the provisions of section 69 (2a) of the Act.

(2.) THE short question that arises before us is whether the bar under the provisions of section 69 (2a) is attracted in the facts of the case. In order to appreciate the rival contentions it would be useful to note the provisions of section 69 of the Act which deals with the effect of non-registration. Section 69 as amended by Maharashtra act No. 29 of 1984 can be conveniently divided into following heads : (i) suits by partners inter se, (ii) suits by a firm against third parties; (iii) suits for dissolution, accounts etc. (iv)exceptions; (v) non-application of the provisions to certain suits. Sub-section (1) deals with suits between partners inter se and reads as follows :

(3.) UNDER the Central Act, suit for dissolution and accounts etc. falls under the excepted category. However under sub-section (2a) inserted by Maharashtra Amendment it is provided that such a suit will not be maintainable unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. There is hardly any dispute that that the suit firm viz. Paramount Builders as originally constituted under the partnership deed of 29th november, 1979 was duly registered with the registrar of Firms under section 59 of the Act. Thereafter due to the death of one of the partners, namely, Mohanlal Chawda, the respondent no. 5, his widow was taken as a partner. However, the name of the respondent No. 5 is not entered in the Register on the date of the suit. Now the argument of Shri Shah, Counsel for respondents nos. 1 to 4 is that once there is a reconstitution of the firm, there is emergence of a new firm within the meaning of section 4. It must get different registration and without getting another registration the first requirement of section 69 (2a) cannot be fulfilled. Shri Shah argues that unless the firm as constituted by insertion of the respondent No. 5 as a partner, is registered under the provisions of the Act and the names of all the persons who were partners on the date of the suit for dissolution are shown in the Register, the suit for dissolution is expressly barred by section 69 (2a) of the Act. On the other hand, Shri parikh, Counsel for appellant argues that the Act does not contemplate repeated registrations whenever a change occurs in the constitution of the firm. According to Shri Parikh, the registration of the firm is only once and for all. Shri Parikh argues that the firm, originally constituted, was admittedly registered and the name of person suing i. e. , the present appellant was also shown in the Register on the date of the suit and, therefore, bar of section 69 (2a) is not attracted.