SOHANLAL BASANT KUMAR Vs. UMRAO MAL CHOPRA

JUDGEMENT

(1.) THIS appeal has been referred by a learned single Judge of this Court for decision by a larger Bench, as according to him it involves an important question of law relating to the interpretation of the provisions of Section 69 (2) of the Indian Partnership Act, 1932 (hereinafter referred to as 'the Act').

(2.) THE only question argued before us in this appeal related to the Maintainability of the suit by a partnership firm and it was submitted by the learned counsel for plaintiff-appellant that the suit was maintainable as the petitioner firm was a registered partnership firm within the meaning of Section 69(2) of the Act; while according to the learned counsel for the defendant-respondent, the suit by the plaintiff firm was not maintainable. THE facts which have a bearing on the aforesaid question raised in this appeal lie in a very narrow compass. Umraomal defendant is alleged to have taken a loan of Rs. 11,000/- from the plaintiff firm on June 27, 1968 with the stipulation to repay the same together with interest @Rs. 12% per annum and he executed a promissory note and a receipt for the said amount in favour of the plaintiff, firm, by way of collateral security for the repayment of the amount of Rs. 11,000/- borrowed from the plaintiff-firm. As the defendant failed to make payment of the loan inspite of repeated demands, the plaintiff firm filed a suit against the defendant-respondent on March 26, 1971 in the court of District Judge, Jodhpur for the recovery of the sum of Rs. 11,000/- as principal and Rs. 3,500/- by way of interest, in all a sum of Rs 14,550/-. THE plaintiff in the said suit was referred to as M/s Sohanlal Basant Kumar, a registered partnership firm of Jodhpur. It was stated in the plaint that the plaintiff was a registered partnership firm duly registered under the provisions of the Act and that there were three partners of the plaintiff firm, namely, Sohanlal, Gumanmal and Mangilal. THE plaint was signed on behalf of the partnership firm by Sohanlal, one of the partners of the plaintiff firm.

(3.) IT is undisputed that the provisions of section 69 2) of the Partnership Act are mandatory in nature and that two essential conditions must be fulfilled before a suit can be instituted in any court by or on behalf of a partnership firm against a third party to enforce a right arising out of a contract, which are:- (i) the firm is registered; and (ii) the persons suing are or have been shown in the Register of Firms as partners in the firm. IT is also well settled that the aforesaid two requirements are conditions precedent for the institution of a suit and that these two conditions must be satisfied on the date of the institution of the suit. There is no doubt that first of the aforesaid two conditions was fulfilled in the present case, as the plaintiff firm was duly registered under the provisions of Section 59 of the Act on November 5, 1963, much before the institution of the suit. Thus, the only dispute in the present case relates to the fulfilment of the second of the aforesaid two conditions on the date of the institution of the suit.