PARAKAM CATHOLIC SANGHAM PROPRIETORS, CHAMKATH PAREKKATH VARIYED S SON PARINCHU Vs. VEKKEKOILKATH KAMTI NAMBRASHTADRI AMA S SON RAVI VARMA THIRUMALPAD

JUDGEMENT

(1.) The question involved in this Civil Revision Petition is whether the suit is barred by Section 69 of Clause 2 of the Partnership Act. The suit is to recover a sum of money due on a promissory note, to an unregistered firm executed before the Indian Partnership Act of 1922. The action was laid admittedly after October 1933 and 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 of 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 action as well as to future actions. The Legislature to avoid hardship provided that Section 69, Clause 2, shall come into force on October 1, 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 Surendra Nath De V/s. Monohar De Krishna Lai Ram Lai V/s. Abdul Gafur A.I.R. 1935 Lah. 893 : 160 Ind. Cas. 513 : 8 R.L. 557 : 17 Lah. 275 : 38 P.L.R. 633; Firm Ram Prasad-Thakur Prasad V/s. Firm Kanta Prasad Sital-Ram Ramsunder Bhowmick V/s. Madhu Sudhan Deb 40 C.W.N. 1180 : 64 C.L.J. 554 and Firm Danmal-Parshotam Das V/s. Firm-Babu Ram-Chote Lal {5) since reported in Firm Danmal-Parshotam Das V/s. Firm Babu Ram Chote Lail . But a dissenting note was struck by Sulaiman, C.J. in Firm Danmal Parshotam Das V/s. Firm Babu Ram-Chote Lal A.I.R. 1936 All. 3 : 160 Ind. Cas. 277 : (1935) A.L.J. 1245 : 1936 A.L.R. 76 : 8 R. A. 588 : 58 A. 495. The observations in his judgment were relied on by Mr. Kuttikrishna Menon for the position that Section 74, Clause (6) 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.

(3.) 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 commencement of this Act.