M/S. NOELCON Vs. M/S. MAHAN BUILDERS

JUDGEMENT

(1.) This Revision Application is directed against the Order dated 20th Dec., 1988, passed by the learned Civil Judge, Senior Division, Mapusa, in the Special Civil Suit No. 129 of 85. By the said Order, he decided the Issue 2 A against the present petitioners.

(2.) The respondents had filed the aforesaid suit for recovery of a sum of Rs. 63,750.00 plus interest thereon at the rate of 10% per annum from July, 1982, till payment, on the grounds that they are dealing with the business of construction of buildings in Goa and they had been approached by the petitioners herein to start the construction of a building in their plot of land situated at Ansabhat, Mapusa. It was agreed that the construction of the building consisting of two structures with ground floor and two upper floors would be taken up by the respondents. The said agreement was oral and, under it, the constriction work was to start in the first week of April, 1982. The respondents had to carry out some preliminary works, such as clearing of the site, constructing access roads, excavation of rocks, etc. This work was complete by 30th April, 1982, and thereafter, a bill for Rs. 30,000.00 was submitted by them to the petitioners. The said bill was not paid in-spite of the promises to pay even by the petitioners.

(3.) The suit was resisted on several grounds, and more particularly, on the ground that the suit was not maintainable, as the respondents firm is a firm registered under the Indian Partnership Act, and therefore, the respondents could not be allowed to sue in the name of the partnership firm; that the suit has been filed against M/s. Noelcon Builders, i.e. the petitioners, which is a proprietary firm alleged to be represented by its alleged proprietor Austin D'Souza, that the respondents were fully aware of the fact that the petitioners are a registered partnership firm and the said Austin D'Souza is its partner; that the suit has not been filed as provided under Order 33 of the Code of Civil Procedure and under the provisions of the Indian Partnership Act; that there was no cause of action against M/s. Noelcon, a registered partnership firm; and that the suit was false, misconceived, vexatious and untenable in law. The suit has been filed on 19tli April, 1985 and the Written Statement, on 1st Oct. of the same year. Much later, i.e. on 11th Jan., 1988, the petitioners filed an application for hearing preliminary objections on the maintainability of the suit. They stated in the said application that they had raised the question that there was no cause of action against the defendants' firm, and therefore, the suit was liable to be dismissed as premature.