PERAKAM CATHOLIC SANGHAM PROPRIETORS, PARINCHU Vs. VEKKEKOVILAKATH KAVUTTI NAMBRASHTADRI AMMA S SON RAVI VARMA THIRUMALPAD

JUDGEMENT

(1.) The question involved in this Civil Revision Petition is whether the suit is barred by Section 69, Clause 2, Partnership Act. The suit is to recover a sum of money due on a promissory note to an unregistered firm executed before the Partnership Act of 1932. The action was laid admittedly after October 1933 when Section 69, Clause 2 of the Act came into force. The learned District Munsif of Chowghat dismissed the suit holding that as the firm was unregistered, Section 69, Clause 2 was a bar to the suit. Section 69, Clause 2 runs thus: 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.

(2.) There is no doubt that this section enacts a rule of procedure. It imposes a condition for the enforcement of a right and does not affect the right itself. Being an enactment relating to procedure it will apply to pending actions as well as to future actions. The Legislature, to avoid hardship, provided that Section 69, Clause 2 shall come into force on 1 October 1933. This provision is also a clear indication that the enactment is intended to be retrospective. This enactment has been the subject of judicial interpretation and a view has been consistently taken that Section 69, Clause 2 will bar a suit by an unregistered firm even in respect of a contract entered into before the Act: vide Surendranath V/s. Manohar De , Krishen Lal Ramlal v. Abdul Ghafur AIR 1935 Lah 893; Ram Prasad Thakur Prasad V/s. Kamta Prasad Sitaram , Ramsundar V/s. Madhu Sudan (1937) 40 CWN 1180 and Danmal Parshotam Das V/s. Firm Babu Ram Chhote Lal , since reported in Danmal Parshotam Das V/s. Firm Babu Ram Chhote Lal . But a dissenting note was struck by Sulaiman, C.J. in Danmal Parshotam Das V/s. Firm Babu Ram Chhote Lal . The observations in his judgment were relied on by Mr. Kuttikrishna Menon for the position that Section 74, Clause (b) of the Act saved all actions pending at the date of the Act or to be filed subsequent to and founded on contracts entered into before the Act from the bar of Section 69, Clause 2. It may be stated that even Sulaiman, C.J. ultimately concurred with Bennet, J. in dismissing the suit holding that Section 69, Clause 2 would be a bar. Section 74, Clause (b) runs thus: Any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability, or anything done or suffered before the commemcement of this Act.

(3.) The view taken by Sulaiman, C.J. was that the words are general and would ordinarily include any suit or application for the enforcement of a legal remedy in respect of a right already acquired. He was also of the view that the words "before the commencement of the Act" would not qualify legal proceeding or remedy. It seems to me that the interpretation placed by Sulaiman, C.J. is correct, namely, Clause (b) is intended to cover a legal proceeding or remedy in respect of matters mentioned in Clauses (a) and (c). So interpreted Clause (b) would run any legal proceeding or remedy in respect of any right, title, interest, obligation or liability incurred before the commencement of the Act or in respect of anything done or suffered before the commencement of the Act". But I do not agree with him when he says that a suit which is brought to enforce a right which has already accrued would not be governed by the provisions of Section 69, Clause (2) of the Act. In my opinion, he seems to interpret "affect" as meaning "apply to". What Section 74, Clause (b) enacts is if a legal proceeding has already been commenced it would not be affected by Section 69, Clause 2. In other words, in this context it would mean that the suit will be proceeded without reference to Section 69 and the same would not apply to the case. But when the section enacts that nothing in this Act shall affect any remedy, affect cannot be interpreted to mean apply to . The term remedy connotes a right to sue or to take any other appropriate proceeding for the enforcement of a right. Section 69, Clause 2 which is only a rule of procedure would not affect the right to sue, and being an enactment relating to procedure and therefore retrospective in its operation will certainly govern the enforcement of that right because a mode has been provided by the Legistature in which the right of action already existing should be asserted. As already indicated by me, the Legislature intended that all actions brought after October 1933 should be governed by the said provision. An interpretation consistent with this intention should be placed on Section 74(b) and the only possible interpretation is that Section 74, Clause (b) was only intended to save pending legal proceedings from the bar of Section 69, Clause 2 and not future proceedings. I am therefore of opinion that the suit is barred by the provisions, of Section 69, Clause 2, of the Act and the view of the lower Court is correct. In the result the Civil Revision Petition is dismissed.