BHARAT KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This first appeal is preferred by the plaintiffs against the judgment and decree dated 26-9-1987 whereby learned Additional District Judge No. 1, Kota, dismissed the civil suit No. 50/1983.

(2.) The relevant facts in brief are that the plaintiffs filed a suit on 2nd April. 1983, for recovery of Rs. 18,500/- with the averments that in compliance of the orders of the plaintiffs, M/s. Bhatia Stones Company, Ramganjmandi, district Kota, booked polished stones worth Rs. 9901.81 with the defendant Railway, vide Railway Receipt No. 334787 on 7-4-1980. The delivery of the goods was to be given to the plaintiffs at Bombay. But the same were not delivered by the defendants. The plaintiffs Informed the defendants vide letters dated 1-6-1980 and 17-7-1980 and thereafter served a notice under Section 80, C. P. C. on 25-8-1980 vide registered post, which was received but with no result. The plaintiffs prayed for decree of the suit amount inclusive of interest at the rate of 18% p.a.

(3.) The defendants appeared in the Court but no written statement was submitted. The trial Court recorded the statement of the plaintiff Bharat Kumar and vide impugned judgment dismissed the suit on the grounds that the plaintiffs have failed to prove that it is a registered partnership firm and service of Notice under Section 80, C. P. C. is also not proved and Notice under Section 78(B) of the Railways Act (hereinafter referred to as the 'Act') was not given. I have heard learned counsel for the appellants. Following points for determination arise in this appeal :- "(1) Whether Section 69 of the Indian Partnership Act, 1932 (for short the 'Act 1932') is applicable in the instant case? (2) Whether service of Notice under Section 80, C. P. C. was proved? (3) Whether Notice under the Indian Railways Act was necessary in view of the notice under Section 80, C. P. C.?" FIRST POINT According to Section 68 of the Act 1932, a certified copy of an entry relating to a firm in the Regsiter of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein. The plaintiffs did not produce certified copy of the entry made in the Register of Firms regarding its Registration. Section 69 of the Act 1932 provides for the effect of non-registration. Sub-sections (1) and (2) of Section 69 are relevant, which -are as under :- 69. Effect of non-registration.- (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 a 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. It was submitted by learned counsel for the appellants that the claim for the damages made by the plaintiffs has not arisen from a contract, with the defendants. He referred the provisions of Section 93 of the Railways Act 1989 (Section 73 of the Indian Railways Act 1890) and contended that responsibility of the defendant railway administration to pay damages on account of nondelivery of the goods is statutoiy. Reliance was placed upon Kerala Arecanut Stores v. M/s. Ramkishore and Sons, AIR 1975 Ker 144 and M/s. Haldiram Bhujiawala v. M/s. Anand Kumar Deepak Kumar, AIR 2000 SC 1287.