SHAZAD KHAN Vs. DARBAR BABU KUCHHI

JUDGEMENT

(1.) THIS application in revision is directed against a decree of the Small Cause Court Judge of Dhanbad, dismissing the plaintiffs suit as barred under Section 69, Partnership Act. The plaintiffs sued the defendant in the name of a firm on the basis of a hand-note. The execution of the hand-note and the passing of consideration were not disputed, but the defendant set up a plea of payment which was not believed by the learned Small Cause Court Judge. He, however, held that as the plaintiff-firm was not registered, their suit as such was not maintainable, and on this ground he dismissed the suit. The plaintiffs have filed this application for revision. It was contended by the learned Advocate for the petitioners that under Section 74(b), Section 69 does not bar suits by unregistered firms if the claim is based upon a cause of action which accrued before the passing of the Partnership Act. At first sight this contention may appear to be sound; but as has been pointed out in two of the decisions of the Calcutta High Court, Surendra Nath Dev. Manohar De and Basanta Kumar Pal V/s. Durgadas Akrur Chandra Banik (1935) 163 IC 703, Section 74(b) only saves pending suits. Section 1(3) of the Act was referred to in those cases to show that Section 69 had not come into force before 1 October 1933. The learned Judges were of the view that this was intended to give time to unregistered firms to get themselves registered, in order to enable them to bring suits, and we respectfully agree with them. The same view seems to have been taken in Ram Prasad Thakur Prasad v. Kamta Prasad Sita Ram and Krishen Lal Ram Lal V/s. Abdul Ghafur Khan AIR 1935 Lah 893. There is therefore no merit in this application.

(2.) THE learned Small Cause Court Judge has however, dismissed the suit with costs. We do not think it is a case in which the defendant ought to be allowed costs. THE claim of the plaintiffs was just. We would therefore set aside the order of payment of costs passed by the learned Judge in the Court below, and with this modification reject the application.