UMA SHANKAR BAJAJ Vs. NARAIN DAS

JUDGEMENT

(1.) THIS appeal is directed against the order dated 2nd March, 1982 passed by the Subordinate Judge, Patna appointing a Receiver in the suit.

(2.) THE plaintiff instituted the suit impleading the defendants praying for the following reliefs: - (a) That the partnership be wound up and a decree for dissolution of partnership be passed, (b) In the event of the Court finding that the partnership had not been dissolved prior to the institution of the suit, it should now be dissolved and a decree for dissolution be passed in accordance therewith, (c) A decree for a sum of Rs. 52,500.00 be passed in favour of the plaintiff against the defendants, and (d) Interest pendente lite and future be awarded along with the cost of the suit. It has been stated in rite plaint that the parties to the suit entered into a partnership carrying on a business of eating house, restaurant, serving sweets, etc. under the name and style of "Vrindavan". It was housed in a portion of the building bearing Holding No. 334, Circle No. 6, Ward No. 2 of the Patna Municipal Corporation situate at Dak Bunglow Road, Patna. The agreement was entered into under a deed dated the 5th day of April, 1979. After the said agreement, the plaintiff disclosed his intention to remain out of the affairs of the partnership and a further agreement was entered into between the parties on the 20th April, 1979. This partnership deed provided, amongst others, as follows : - "that the 4th party Sri Narain Das shill be entitled to get Rs. 2,000.00 per month only by way of fixed profit from the partnership and shall not be responsible for any loss and shall not be liable for any liability of the partnership business nor shall invest any capital for the business." Clause 3 provided : "The partners shall pay a sum of Rs. 500.00 only towards rent of the premises to Sri Narain Das for making payment to the owner of the premises and he sum so paid shall not be adjustable towards his monthly fixed profit of Rs. 2,000/ -." It was further alleged that the partners paid the amount as stipulated above for some time but stopped payment since April, 1980 and thus the total outstanding amount was Rs. 52,500/ -. He claimed a decree for that amount.

(3.) LEARNED counsel for the appellants submitted that the suit in the present form was hit by the provisions of Sec. 69 of the Partnership Act, 1932 (9 of 1932) (hereinafter referred to as the Partnership Act) and as such, prima facie, the plaintiff has no case and, therefore, this is not a fit case for appointment of a Receiver. Sec. 69 of the Partnership Act reads thus : "69. (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm 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. (2) No suit to enforce a right arising from a contract shall be instituted in any Court 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. (3) The provisions of sub -sections (1) and (2) shall apply also to a claim of set -off or other proceeding to enforce a right arising from a contract, but shall not affect : - (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm." It would appear that sub -sections (1) and (2) of S.69 of the Partnership Act bar the institution of a suit to enforce a right arising from a contract by or on behalf of partner or by a firm, as the case may be, unless the firm is registered and the person suing is or has been shown in the Register of Firms as partners in the firm. Clause (a) of sub -section (3) of S.69 of the Partnership Act, however, provides that a right to sue for dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm can be enforced. It is admitted in this case that the firm in question was an unregistered firm. Therefore, though a suit for dissolution of this firm may be maintained, the right arising from the partnership contract cannot be enforced by a suit by a partner inasmuch as the firm is not a registered and there is nothing on the record to show that the plaintiffs name has been shown in the Register of Firms as a partner in the firm.