CHANDRABHAN BANSILAL Vs. MUNICIPAL COUNCIL BIKANER

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the judgment and decree of the Civil Judge, Bikaner, dated 10-12-71 dismissing the suit for recovery of Rs. 17,600/-The facts of the case which are no longer in dispute are as follows Messrs Chandrabhan Bansilal Ramratandass, a partnership firm, owns a building known as Narsingh Bhawan Daga Building at K. E. M. Road in Bikaner. A dispute was going on between the owner of the building and the Municipal Board, Bikaner, about the disposal of the waste water coming out of the said building. The Municipal Board asked the owner to make proper and satisfactory arrangements for the disposal of the waste water. The Municipal Board also suggested to the owner to pay Rs. 8899/-, the estimated cost, for construction of septic tank and soak-pit outside the building. When the owner neither made proper arrangements for the disposal of the waste water nor paid the estimated amount for constructing the soak-pit, the Municipal Board on 12-4-46 served a notice under sec. 81 of the Bikaner Municipal Act calling upon the owner Narsingh-das Daga to make arrangements for the disposal of the said waste water to the satisfaction of the Board or to pay the estimated cost of the entire scheme within 15 days of the receipt of the notice failing which action will be taken according to law and water supplied to building might be stopped without further notice. It appears that ultimately the owner agreed to deposit Rs. 8799/- for the construction of a soak-pit and septic tank and sent a cheque for the said amount to the Municipal Board, Bikaner, on 22 3-48. The Municipal Board accepted the cheque and the amount was credited in its account with the State Bank of Bikaner on 8 4-48. On 19-12-49 the Municipal Board's President informed the owner that necessary construction relating to the disposal of the waste water of the building will be got completed most probably in the last week of January 1950. When nothing was done for several months, the owner enquired vide letter dated 24-6-50 as to when the work was expected to be completed. In reply the Executive Officer of the Municipal Board informed the owner vide letter dated 14-7 50 that the matter had been referred to the Electrical and Mechanical Department and the action taken in this connection would be intimated in due course. Thereafter it appears that neither the owner nor the Municipal Board took any steps for the construction of the septic tank and soak-pit. On 1-3-66 the owner received a demand notice from the Municipal Council, Bikaner, which, in the meantime, had succeeded to the Municipal Board, for payment of house-tax amounting to Rs. 3131. 25. The owner in his reply dated 30-9-67 requested the Municipal Council to adjust the house-tax amount from the amount of Rs. 8799/- lying in deposit with the Council against the construction of the septic tank and soak-pit. The Municipal Council vide its letter dated 7. 11. 67 replied that it was not possible to effect the adjustment as desired. The owner Messrs Chandrabhan Bansilal Ramratandass then served a notice on 4-12-67 calling upon the Administrator, Municipal Council co refund the amount of Rs. 8799/- together with interest at the rate of six per cent per annum. The Municipal Council gave no reply to the notice of the plaintiff. The plaintiff therefore brought the suit out of which this appeal has arisen, on 3-3-68 for the recovery of Rs. 8799/- as principal and Rs. 8799/- by way of interest plus Rs. 2/- as notice expenses total Rs. 17600/ -.

(2.) THE plaintiff alleged in the plaint that the amount of Rs. 8799/- was deposited with the Municipal Board for specific purpose and as Amanat and since the Municipal Board neither spent the amount nor carried out that specific purpose nor it was making a refund of the amount, the plaintiff was entitled to a decree for the suit amount. THE suit was resisted by the defendant-Municipal Council, Bikaner, on various grounds. THE defendant expressed its ignorance as to deposit made by the plaintiff. In the alternative, it was pleaded that the amount deposited by the plaintiff had been utilised in making arrangements other than the construction of the soak-pit and septic tank for the disposal of the waste water. THE main pleas raised by the defendant were two-fold, firstly, the suit was barred by time, and, secondly, the plaintiff-firm not being a duly registered firm, the suit is not maintainable, which would be clear from the following issues framed by the trial court: -

(3.) I regret I cannot agree with Mr. Garg. None of the cases cited by Mr. Garg is applicable as the question of contravening a statute was not discussed in them. Here sec. 69 (2) of the Partnership Act expressly forbids any court from entertaining any suit by or on behalf of a firm which is not registered or where the names of the persons suing have not been shown as partners in the Register of Firms. An identical question came up for decision before a Division Bench of the Orissa High Court in Balasore Textile Distributors Association vs. Indian Union (7 ). In that case, no specific plea under sub-sec. (2) of sec. 69 of the Partnership Act was taken in the written statement, but there was necessary evidence available on the record showing non-compliance of the provisions of sec. 69 (2) of the Partnership Act. Narasimham G. J. delivering the judgment observed that when necessary facts for the application of that section have been brought to the notice of the court, it cannot be a party to the perpetration of an illegality. Reliance was placed on the following observations of the Privy Council in Surajmull vs. Triton Insurance Co. (2): "no Court can enforce as valid that which competent enactments have declared shall not be valid nor is obedience to such an enactment, a thing from which a Court can be dispensed by consent of parties or by failure to plead or to argue a point at the outset. . . . . . The enactment is prohibitory. It is not confined to affording a party protection of which he may avail himself or not as he pleases. " The above cited Privy Council's case Was subsequently followed by the Nagpur High Court in Mohanlal Jagannath vs. Kashiram Gokul (9) wherein it was observed that no Court can perpetrate an illegality once the necessary facts have come to its notice. The following observations of Lindley L. J. in Scott vs. Brown, Doering Me Nab & Co. (1892) 2 QB 724 (728) was quoted with approval: "it matters not whether the defendant has pleaded the illegality or whether he has not the evidence adduced by the plaintiff proves the illegality the Court ought not to assist him. " As already pointed out, the evidence produced on behalf of the plaintiff goes to show that the names of some of the partners of the plaintiff firm have not been shown in the Register of Firms as partners and as such the suit was clearly barred under sec. 69 (2) of the Partnership Act. In the result, the appeal fails and it is dismissed. .