Judgment:
S.C. Mohapatra, J.
1. Dismissal of the suit for recovery of money on finding that the same is not maintainable is grievance of plaintiff in this appeal.
2. Case of plaintiff is that he is the Managing Partner of a Firm. Defendant No. 1 is also a Firm with defendant Nos. 2 to 5 as its partners. Plaintiff is a merchant carrying on business of purchase and sale of goods including tobacco. Defendant No. 1 -Firm is a reputed tobacco merchant in Eastern India who carries on business on commission also. Defendant-firm entered into a contract to supply tobacco to plaintiff at its godown at Puri. Plaintiff has paid on various dates a sum of Rs. 88,300/- as detailed in the schedule to the plaints Defendants supplied tobacco worth Rs. 65,469.16 paise. After accounts were taken in respect of transactions between the parties, it was found that a sum of Rs. 22,842.84 paise is outstanding against defendants. Notice was sent for refund of the amount and the same having not been refunded,'suit has been filed for realisation of the amount with interest at 12% per annum till date of suit as well as pendent lite and future interest.
3. Defendants 2 to 5 jointly filed the written statement. While denying their liability on facts, it was submitted that the suit is not maintainable in view of Section 69(2) of the Partnership Act.
4. Plaintiff examined himself as PW 1 and proved documents marked Exts. 1 to 3. Defendants examined three witnesses and proved documents marked Exts. A to Z series. Amongst other findings, trial Court on consideration of materials held that the suit is not maintainable , in view of Section 69(2) of the Partnership Act. This is grievance of appellants.
5. Mr. S. S. Basu, learned counsel for appellant submitted that a Partnership Firm has not filed the suit. Plaintiff has filed the suit in his own capacity though he happens to be the Managing Partner of a Firm. Mr Basu further submitted that by the time of the filing of the suit, application for registration of the firm had already been filed and within ten months of filing of the suit, the certificate of registration was obtained. Therefore, the suit ought to have been held to be maintainable. Mr. Basu has relied upon Order 30, Rule 10, CPC as amended by Act 104 of 1976 which came into force on 1-2-1977.
6. Description of plaintiff as Managing Partner of the Firm and assertion in paragraph of the plaint that being Managing Partner he is authorised to file the suit, clearly indicates that the suit is in respect of the transaction which arose out of a contract with a Firm which was not registered. Ext. 2 also indicates that it is not the personal account of plaintiff but is the account of the Firm on basis of which the recovery is sought for. Therefore, trial Court rightly held the suit is by the Firm.
7. In the decision reported in 1960 OJD 36 [The Balasore Textile Distributors Association v. The Indian Union (B.N. Rly. through the General Manager B.N. Rly. Kidderpore)and Anr.] land in AIR 1964 Ori, 49 (Raghunath Choudhury v. Budhi Naik) it has been held that Section 69 (2) of the Partnership Act is of mandatory character and the provision prohibits enforcement of right arising out of a contract by way of a suit unless the Firm is registered by the time of filing of the suit. Mere application for registration of the Firm would not assist the plaintiff in any manner since on the own version of plaintiff the suit is filed in respect of contract with a Firm which was not registered even by the time suit was filed. Trial Court is justified in dismissing the suit as not maintainable.
8. In result, there is no merit in this appeal which is accordingly, dismissed. There shall be no order as to costs.