AJIT KUMAR MAITY Vs. NARENDRA NATH JANA

JUDGEMENT

(1.) The question in these cases is whether the bar junder Sub-sections (1) and (2) of Section 69 Partnership Act, which is extended by Sub-section (3) of the same section 'to a claim of set-off or other proceeding to enforce a right arising from a contract' applies to defence taken in the written statement that the properties to which the plaintiff claims an exclusive right is the joint property of the plaintiff arid the defendants on the plea that they are all partners of the property belonging to the Firm.

(2.) Primarily the bar in Section 69 is. against the plaintiff, the result being, if a partnership has not been registered, no suit to enforce a right arising from a contract will be entertained either on behalf of the firm against a third party or on behalf of any person suing as a partner in a firm against the firm or any person alleged to have been a partner in the firm. These are the consequences of the provisions of Sub-sections (1) and (2). The first effect of the extension of the provisions of Sub-sections (1) and (2) by Sub-section (3) is that if a defendant claims set-off on the basis of a partnership, he will be debarred from doing so unless the partnership is registered. The next effect is that if any person is by "any proceeding" seeking "to enforce a right" arising from a contract on the basis of a partnership he will be debarred from doing so, unless the partnership is registered. Can it be reasonably said that when a defendant tries to defeat the claim of the plaintiff by setting up a right on the basis of partnership, that is "a proceeding" 'to enforce a right on the basis of partnership'. In my judgment, the written; statement as such is in the. first place not a proceeding contemplated in Sub-section (3). In the second place, it cannot, in my judgment, be properly said that by setting up a plea to defeat the plaintiff's claim a defendant can be said to be seeking 'to enforce a right arising from a contract'. A party can be said to be seeking to 'enforce a right' only if he is seeking some relief from the court. Where no relief is being sought from the court, it cannot be said that he is seeking to enforce a right. Not only in form, but also in substance, what the defendants have sought to do in these cases is to try to defeat the plaintiff's claim to certain properties. There is no attempt to enforce their own. rights. Reliance was placed on certain observations in -- 'Jamal Usman v. Firm Umar Haji Karim Shop', AIR 1943 Nag 175 (A), to the effect that a claim arising out of a contract set up in defence to negative the right of suit of the plaintiff is placed under the same disability as the right to bring a suit under Sub-sections (1) and (2).

(3.) For the reasons I have already mentioned, I am unable to agree that this is a correct view. It may also be pointed out that these observations are obiter, as what was actually decided in the case was that Section 69 (3) had no application to execution proceedings.