CIMCO PIPES Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the unsuccessful plaintiff against the judgment and decree of the Additional Sessions Judge, Sirohi, dated 8. 3. 1984, dismissing the plaintiff's suit.

(2.) THE present suit has been filed by the plaintiff for recovery of Rs. 24,919/-as Principal amount and Rs. 3400/-, being security deposit, Rs. 15,292. 80 Paise by way of interest on the said amount. THE brief allegations of the plaint are that the plaintiff was given an order to supply 24000 mts. of RCC Pipe. THE goods were to be delivered up to 1st of March, 1974. According to the plaintiff, for reasons beyond its control, the pipes could not be supplied, for which information was sent from time to time and ultimately, the goods were delivered up to 31. 5. 1975, but while making payments, a sum of Rs. 24919. 82 Paise remained outstanding. According to the plaintiff, at the time of accepting supply from the plaintiff, no penalty was imposed and the supply was accepted. It was only when the plaintiff made demand, rather pressed for the outstanding amount, the Chief Engineer, acknowledging the plaintiff's letter, accepted the amount to be outstanding, but gave out that while making payment, amount representing penalty to the extent of 1% will be deducted for delayed supply and the security deposit may also be withheld, at the same time, it was also ordered that if the plaintiff wants to take the balance amount, the plaintiff should give a Bank guarantee in favour of the Superintending Engineer PHED, Jodhpur Circle. THE plaintiff had challenged this order, imposing penalty also.

(3.) COUPLED with this, a look at para 11 of the judgment would show that without any pleadings having been taken or controversy having been raised on the side of the defendant, the learned trial Court has proceeded to assume a controversy about the plaintiff not having been proved to be a registered partnership firm and Pukhraj, the signatory of the plaint, a partner in the firm, it has also assumed that the witness Ram Chandra has also not shown his relationship vis-a-vis the plaintiff-firm and, thus, the query posed by the learned trial Court is "whether the plaintiff-firm could receive a decree in its favour on the deposition strength of PW 1 Ram Chandra and plaint strength of Pukhraj purporting to be partner of the plaintiff firm? The Court would not pass any decree which is incapable of execution and so would not deliver a waste paper in the garb of a decree and this would be the material consideration at this time when neither party before me pleads, objects or proves entitlement of the plaintiff firm to secure a decree from the Court. Since it would be a legal question, I have called upon myself independent of the two parties to answer the same as the provision under Section 69 sub-section (2) of the Indian Partnership Act are express as well as mandatory in nature and so assign a duty to the Court irrespective of the pleadings, arguments, waiver, consent or any other situation to not only look into the fact but when satisfied that the suit is not barred by the said section, then alone competency of the Court would accrue to pass the decree. " With this, the learned trial Court has held that the plaint nowhere evers the fact of registration and the Court finds that the capacity to sue does not lie in the plaintiff and no decree can be passed in favour of such a non-juristic person.