A V RAMANAIAH Vs. M SHEKHARA

JUDGEMENT

(1.) AS the Division Bench has expressed its inability to agree with the view taken by this court in Amit Desai v. M/s. Shine enterprises, 2000 (1) ALD (Crl.) 587 = 2000 (1) ALT (Crl.) 384 (DB) (AP) = 2000 crl. LJ 2386, this matter has been referred to/the Full Bench, to decide the question as to "whether bar contained under Section 69 (2) of the Partnership Act for institution of a suit to enforce a right arising from a contract by an unregistered firm can be extended to criminal proceedings launched for the offence under Section 138 of the negotiable Instruments Act or not. "

(2.) THIS controversy has been raised when a complaint lodged by an unregistered firm, has been entertained under Section 138 of the Negotiable Instruments Act, 1881 (for purposes of brevity, henceforth referred to as "the Act" ). The accused had raised an objection about its maintainability on the premise that the complainant being an unregistered partnership firm, the bar contained under Section 69 of Indian partnership Act, 1932 is attracted. Section 69 of the Indian Partnership Act, 1932 is attracted. Section 69 of the Indian Partnership act, 1932, to the extent relevant for the present enquiry, reads as under:

(3.) SUB-SECTION (1) of Section 69 creates a bar from instituting a suit by or on behalf of any person suing as a partner in a firm against the firm or any other partner in a firm for enforcing any right arising from a contract or for purposes of enforcing a right conferred by and under the Partnership Act itself. Sub-section (2)creates a similar bar for instituting a suit by or on behalf of firm against any third-party, unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm, when such a suit is instituted to enforce a right arising from a contract. Sub-section (3) merely clarified that the bar contained under sub-sections (1) and (2) shall also apply to a claim of set off or other proceeding brought out to enforce a right arising from a contract.