GOPINATH MOTILAL Vs. RAMDAS

JUDGEMENT

(1.) This is a suit for the recovery of a sum of Rs. 18,000 odd stated in the concise statement to be due from the defendants to the plaintiff firm on the khotor patta account and for costs. The defendants are said to be members of a joint Mitakshara Hindu family who carried on business under the name of Ramdas Bhagwan Das. There were various loans and adjustments alleged and the sum which is claimed is the sum which is said to be due after giving credit for moneys received. The plaint was filed on 21 November 1934. A written statement was put in on behalf of defendants 2, 4, 5, 10, 11 and 12. Another written statement was put in on behalf of defendants 1, 3 and 9, both on 4 April 1935. There was also a written statemant on behalf of certain minor defendants. About 20 May the plaintiff firm applied to amend their plaint by adding details of certain transactions and by referring to the defendants as a Mitakshara joint family and not as a firm. The order was made and it was further ordered that the adult defendants should be at liberty within 7 days from date of their receiving a copy of the amended plaint to file such additional written statement in the suit as may be rendered necessary in consequence of the aforesaid amendment. A copy of the amended plaint was sent to the defendants attorney on 9 May, and thereafter the attorneys for the plaintiff firm reminded the defendants on more than one occasion that the time to file other additional written statements had expired. No written statement was in fact filed until the suit came on for hearing today. Mr. Suhrawardy then on behalf of the defendants asked for leave to file the additional written statements, and Mr. Bose on behalf of the plaintiff firm stated that he objected to their being filed but that he was not willing to take an adjournment if I felt disposed to admit the additional written statements. In those additional written statements the plea was taken that the suit as framed is not maintainable and that the business of Ramdas Bhagwan Das was a joint family business and not a contractual partnership.

(2.) On the defendant being called upon to propose issues, the first issue suggested by Mr. Suhrawardy was that the suit was not maintainable inasmuch as it was a partnership firm and had not been registered under Section 58, Partnership Act. This section provides how registration may be effected and Section 69 (2) provides: 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.

(3.) There is nothing to show that the plaintiff firm is a partnership firm, but that has not been denied before me and it is clear that the plaint refers throughout to the plaintiff as "the plaintiff firm." Section 4, Partnership Act, defines a partnership firm and says that persons who have entered into partnership with one another are called individually partners and collectively a firm, and there is no doubt that the plaintiffs have referred to themselves as a firm, and it must be presumed, even in the absence of evidence, that they are persons who have entered into partnership with one another and are a partnership firm. It was contended that Section 69 was not applicable inasmuch as the transactions which were the subject matter of this suit had all taken place prior to 1 October 1933. The materiality of that date is by reason of Section 1 (3), Partnership Act 9 of 1932 which provides that: The act shall come into force on the first day of October 1932, except Section 69, which shall come into force on the 1 day of October 1933.