FIRM LADURAM SAGARMAL Vs. JAMUNA PRASAD CHAUDHURI

JUDGEMENT

(1.) This is a plaintiff's second appeal against concurrent decrees of the Courts below dismissing his claim. The suit out of which this appeal arises was for the recovery of money due on certain bahikhata accounts. The plaintiff firm carried on business as wholesale cloth dealers, whereas the defendants carried on a retail cloth business. Over a period of time the defendants had made purchases of cloth from the plaintiff firm, and eventually the parties adjusted the accounts. It was the plaintiff's case that a sum of Rs. 1693 was due from the defendants to the plaintiff firm upon this account. The defendants raised a number of defences, but it is only necessary for me to deal with one of them. Defendants contended that the suit as instituted was not maintainable as at the date of the institution of the suit the plaintiff firm had not been registered in accordance with the provisions of the Partnership Act. The other defences, namely limitation and denial of the accuracy of accounts, do not arise in this appeal.

(2.) The trial Court dismissed the suit on the ground that it was not maintainable by reason of Section 69, Partnership Act. The lower Appellate Court was of opinion that the suit was not maintainable when instituted but that it became maintainable at a later date when the plaintiff firm was registered. It further held that part of the claim was barred by limitation and that the remainder had been satisfied by payment. It accordingly upheld the decision of the trial Court though upon different grounds. It has been strenuously argued by Mr. Bose in this appeal that the suit was maintainable and that the lower Appellate Court was right in treating the suit as having been instituted on the date when the firm was registered. The suit was instituted on 21 November 1935, and it is common ground that upon that date the firm was an unregistered one. On 10 December 1935, the plaintiff firm applied for registration under the Partnership Act and on 18 January 1936 registration was effected. It has been contended on behalf of the appellant that though the suit was not maintainable when instituted, the Court was entitled to treat the suit as properly instituted on 18 January 1936.

(3.) On behalf of the respondents it has been contended that as the suit was not maintainable when instituted, nothing that happened afterwards could affect the maintainability of this particular suit. Reliance has been placed by the advocate for the appellant upon the case in Radha Charan Saha V/s. Matilal Saha 41 C.W.N. 534. In that case a suit was instituted by an unregistered firm on 25 May 1934, and no exception was taken in the written statement on the ground of non-registration of the firm. The suit proceeded to trial and was decreed on contest against the answering defendant and ex parte against the others. The answering defendant appealed, but that appeal was not proceeded with, as there was an application to have the ex parte decree set aside by those defendants against whom the ex parte decree was passed. That ex parte decree was set aside and the suit came on for hearing afresh. At that hearing a plea was taken that the suit was not maintainable under Section 69(2), Partnership Act, on the ground of non- registration of the firm at the date of the institution of the suit. The firm was as a matter of fact registered on 20 June 1934. The objection was upheld by the Courts below and the suit dismissed. On appeal Mitter J. held that the suit ought not to have been dismissed merely on the ground of non-registration of the firm at the date of the institution of the suit but that it ought to have been deemed to have been instituted on the date when the firm was registered.