R.M. Lodha, J.
1. The only question Involved in the first appeal is whether the Trial Court was justified in dismissing the plaintiffs suit as not maintainable relying on Section 69(2-A) of the Indian Partnership Act, 1932.
2. The appellant is the original plaintiff. He filed a suit on 14.1.1980 against the respondent, who is the original defendant in the suit, inter alia praying for dissolution of partnership firm and for rendition of accounts and other ancillary reliefs. The plaintiff averred in the plaint that he is the owner of shop No. 3 (O.S.), ground floor, Dongri Municipal Market, Dr. Maheshwari Road, Bombay, and he started carrying on business in bangles and cutlery in the said shop in the name and style of Kishore Novelty Store. Defendant, who is his brother-in-law requested him to induct him as partner in the said business and he promised to contribute Rs. 10,000/-towards partnership business as share capital in the proposed partnership business and accordingly partnership business was started between the plaintiff and the defendant from 10.8.1971. The partnership firm was not registered with the Registrar of Firms under the provisions of the Indian Partnership Act. It is the plaintiffs case that on account of his ill-health he asked the defendant to attend the said business but the defendant wilfully and fraudulently committed breach of terms and conditions of the partnership agreement, did not account for the assets and income of the firm and systematically manipulated the accounts of the firm. The defendant also forged a deed of dissolution dated 14.4.1973 and filed suit based on that document which has been dismissed. The plaintiff averred that the defendant frustrated in his attempt to oust the plaintiff from the partnership business has started harassing him and is not allowing the plaintiff to do the business. According to the plaintiff, in view of the wilful and persistent defaults of the terms and conditions of partnership agreement committed by the defendant, continuance of the partnership business is impossible and that the business of the firm cannot be carried on in the present circumstances. He therefore prayed for dissolution of the firm, rendition of account and other ancillary reliefs.
3. The defendant resisted the suit by filing his written statement on 20.8.1980 and set up defence that the partnership between the plaintiff and the defendant was dissolved on 10.4.1973 after the Plaintiff agreed to dissolve the partnership business and with full knowledge executed the deed of dissolution dated 10.4.1973 which was attested by his wife, whereby he gave up his right, title and interest of all nature in favour of the Defendant. According to the defendant he also made certain payments towards plaintiffs debts which in all amount to Rs. 25.000/- to Rs. 30.000/-. He denied the allegation of mismanagement or harassing the plaintiff. In sum and substance, the defendant pleaded in defence that the question of dissolution of partnership does not arise since it has already been dissolved on 14.4.1973 and there is no question of accounts now in the facts and circumstances of the case.
4. The Trial Court framed various issues on 9.8.1996 and though there was no defence set up by the defendant in the written statement about the maintainability of the suit for want of registration of firm, in view of the provisions of Section 69(2A) of the Indian Partnership Act, 1932, which was obtaining on the date of framing of issues, the Trial Court framed issue No. 1 to the effect whether the suit was maintainable for want of registration of firm amongst other issues. After recording the evidence, the Trial Court held that the plaintiff has been able to prove that deed of dissolution dated 14.4.1973 was forged document and it was not binding upon him. The Trial Court also held that the plaintiff has been able to prove that the firm known as Novelty House was liable to be dissolved from the date of filing of the suit and that the: defendant was liable to give accounts of the firm from 10.8.1971 till the alleged date of dissolution and to pay interest on profit. The Trial Court also held that the plaintiff was entitled to possession of the shop in his personal right and that the defendant has no right in the suit shop No. 3 situated at Dongri Municipal Market. Despite all these findings the Trial Court dismissed the suit as not maintainable for want of registration of firm giving rise to the present first appeal at the instance of the original plaintiff.
5. As already noted above, the suit was filed by the plaintiff seeking dissolution of the firm and rendition of account and for ancillary reliefs on 14.1.1980. On the date of filing of the suit Section 69 of the Indian Partnership Act, 1932, read thus:-
69. Effect of non-registration.
(1) No suit to enforce aright arising from a contract of conferred by this Act shall be instituted in any Court by or on behalf of any persons suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) 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) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect -
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the power of an Official Assignee, Receiver or Court under the Presidency Towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner.
(4) This section shall not apply -
(a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under Section 56, this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency Small Cause Courts Act, 1882 (5 of 1882) or outside the Presidency Towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.
6. It would be seen that the provisions contained in Sub-section (1) and Sub-section (2) had no application in respect of enforcement of any right to sue for dissolution of firm or for accounts of the dissolved firm or any right or power to realise the property of the dissolved firm in view of Clause (a) of Sub-section (3) of Section 69. The suit filed by the plaintiff on 14.1.1980 was therefore perfectly maintainable and was not liable to be thrown out for non-registration of the firm. In other words, non-registration of the firm had no effect for the enforcement of the right to sue for dissolution of the firm or for account of the dissolved firm or any right or power to realise the property of the dissolved firm on the date of filing of the suit. In view of this clear legal position, in the written statement also the defendant did not raise any plea that the suit was not maintainable for want of registration. It was only during the pendency of the suit by Maharashtra Act XXIX of 1984, called Indian Partnership (Maharashtra Amendment) Act, 1984, various provisions of the Indian Partnership Act were amended, including Section 69. Section 1 of Maharashtra Act XXIX of 1984 provides for short title and commencement of the Act by providing that it shall come into force on such date as the State Government may by notification in the Official Gazette appoint. The Act, after receipt of the assent of the President on 12.10.1984, was published in the Maharashtra Government Gazette on 18.10.1984. After amendment to Section 69 by Maharashtra Act XXIX of 1984, Section 69 reads thus:-
69. Effect of non-registration. -
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any persons suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of firms as a partner in the firm :
Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of the firm or to realise the property of the firm.(2) 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.
(2A) No suit to enforce any right for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or have been a partner in the firm, unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm :
Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of a dissolved firm or to realise the property of a dissolved firm.(3) The provisions of Sub-sections (1), (2), and (2A) shall apply also to a claim of set-off or other proceedings to enforce a right arising from a contract but shall not affect -
(a) the firms constituted for a duration upto six months or with a capital upto two thousand rupees; or
(b) the powers of an Official Assignee, Receiver or Court under the Presidency Towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner.
(4) This section shall not apply -
(a) to firms or partners in firm which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under Section 56 this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the presidency town, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882, or outside the Presidency towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.
7. Sub-section (2A) which has been inserted by way of amendment makes new provision in respect of enforcement of right for the dissolution of firm or for accounts. According to the newly added Sub-section (2A) unless the firm is registered and the suitor is shown in the Register of Firm as a partner of the firm, the suit for enforcement of right of dissolution of the firm or for account of the dissolved firm or any right or power to realise the property of the dissolved firm cannot be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be a partner in the firm. In other words, the very institution of the suit by the person suing as a partner in a firm against the firm or any person who is and has been a partner of the firm for enforcement of right of dissolution of firm or for account of the dissolved firm or realisation of the property of dissolved firm will be bad, unless the firm is registered and the person suing is or has been shown in the Register of Firm with the office of the Registrar of Firm. The words 'No suit to enforce any right for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm shall be instituted in any Court' positively indicate that this provision inserted by way of Sub-section (2A) can only be confined to the suits which are instituted on or after the insertion of Sub-section (2A) in Section 69 and it has no effect on the suits already filed prior to the amendment to Section 69 by way of newly added Sub-section (2A). The suit for dissolution of unregistered firm or for account of the unregistered firm which was otherwise maintainable on the date of the filing of the suit has not been rendered not maintainable by insertion of Sub-section (2A) by the Maharashtra Amendment Act XXIX of Section 1984. The provision of newly added Sub-section (2A) and other consequential amendment in Sub-section (3) has no effect on the pending suits. The Trial Court misconstrued the said provisions of Sub-section (2A) and made it applicable to the present suit which was already pending on the date of coming into force of Sub-section (2A). The Plaintiffs suit which was maintainable has wrongly been dismissed as not maintainable by applying Sub-section (2A) which had no application on the pending suits.
8. Since the plaintiffs suit was not hit by amended Section 69(2A) and was maintainable, in view of the findings recorded by the Trial Court on the other issues, the suit deserves to be decreed.
9. Consequently, the first appeal is allowed. The judgment and decree passed by the Trial Court on 19.2.1997 is set aside to the extent the suit has been held as not maintainable and the plaintiffs suit is decreed with costs in terms of prayers (a), (b), (c), (d) and (d-1) of the plaint, which read thus:-
(a) That it may be declared that the purported Deed of Dissolution dated 14th April, 1973 was a forged document and in the alternative it was neither acted upon nor was it intended to be acted upon by the partners and that in any case it is not binding upon the Plaintiff and that the said partnership still subsists.
(b) That the said Partnership dated 10th August, 1971 be dissolved under the directions and supervision and control of this Hon'ble Court either from the date of filing of this suit or on such date as this Hon'ble Court may deem fit and proper;
(c) That all directions be given for the dissolution and winding up of the partnership dated 10th August, 1971;
(d) That it may be declared that the Defendant has no right to occupy the said shop viz. Kishore Novelty situated at 3(OS) outside Ground floor, Dongri Municipal Market, Dr. Maheshwari Road, Bombay 400009, after the dissolution of the said partnership dated 10th August, 1971;
(d-1) That Defendant be ordered and decreed to pay the amount to the Plaintiff on making up the account together with interest thereon at 12% per annum from the date of the suit till payment or at any other rate as this Hon'ble Court may award.
10. The Court Receiver is directed to hand over possession of the suit shop to the Plaintiff in compliance of the decree passed above.
11. The excess amount, if any, lying with the Court Receiver shall be paid to the party who is entitled as per the finalisation of the account.
12. Certified copy expedited.