Full Judgment
Sailendra Prasad Talukdar, J.
1. Order No. 15 dated 11.5.2006 passed by the learned Civil Judge (Jr. Divn.) at Amta, Howrah in Title Suit No. 118/05 is under challenge in this application under Article 227 of the Constitution.
2. The backdrop of the present case may briefly be stated as follows:
Opposite parties, as plaintiffs, filed a suit for declaration, permanent injunction and accounts before the learned Trial Court. In it, the plaintiffs claimed that the suit properties as described in the schedule of the plaint originally belonged to Asutosh Maji. On 14.5.2002, he transferred a portion of the property in favour of his son, Sri Brojogapal Maji being the defendant No. 3 by way of registered Deed of Gift being No. 799 for the year 2002, On 17.5.2002, said Asutosh Maji further transferred his remaining portion of the properties in favour of his two sons, namely, Benimadhav Maji and Shyamsundar Maji, the defendant Nos. 4 and 5 by way of two separate Deeds of Gift in the year 2002. By virtue of such three Deeds of Gift the defendant Nos. 3, 4 and 5 became the owners of the properties as described in the schedule of the plaint. They were running bricks manufacturing business under the name and style of Sri Lakshi Brick Field on the properties. But due to shortage of fund, they found it difficult to run the business and decided to lease out the properties. Having come to learn of this, the plaintiffs and defendant Nos. 1 and 2 approached the said defendant Nos. 3 to 5. On 2nd November, 2004, a lease patra was accordingly executed by the said defendant Nos. 3, 4 and 5 in favour of the plaintiffs and defendant Nos. 1 and 2. It was a lease for a period of 31 years commencing from 1.11.2004 to 31.10.2005. The plaintiffs and defendant Nos. 1 and 2 started their partnership business under the name of style of M/s. R.S.S. Brick Works (Brand Deep). They invested equal amount as capital of the business. A Deed of Partnership was executed on 2.11.2004. Taking advantage of the intimate relationship between the parties, defendant Nos. l and 2 committed breach of terms of the Partnership Deed by misappropriating money of the business and not by rendering its true accounts. Since disputes and differences cropped up, the plaintiffs asked for the accounts.
3. On 15.10.2005, the plaintiffs demanded such accounts and share of the profit and loss of the business, but defendant Nos. 1 and 2 refused to comply and further took the stand that the plaintiffs do not have any claim of share in such partnership business and as such, they are not entitled to get any accounts. It was further claimed by the said defendant Nos. 3 to 5 that the lease patra (Deed of Lease) was executed in favour of the said defendant Nos. 3, 4 and 5. This compelled the plaintiffis to file the aforesaid suit with a prayer for declaration that they have half share in respect of the partnership business as well as for other reliefs.
4. The said suit was being contested by defendant Nos. 1 and 2 by filing written statement wherein the material allegations made by the plaintiffs were denied. The application for temporary injunction under Order 39 Rule 1 and 2 read with Section 151 of the CP Code was also filed. Defendant Nos. 1 and 2 in response to the same filed written objection thereto. Such defendant Nos. 1 and 2 also filed an application challenging maintainability of the suit.
5. The learned Trial Court by the impugned order dated 11.5.2006 allowed the said application for injunction and directed the parties to maintain status quo in respect of the firm under the name and style of M/s. R.S.S. Bricks Works (Brand Deep) till disposal of the suit.
6. While assailing the impugned order, it was submitted on behalf of the petitioners that the partnership firm being unregistered, a suit filed by a partner against another is not maintainable in view of Section 69(1) of the Indian Partnership Act, 1932 unless it is a suit for dissolution of the firm or for accounts of a dissolved firm or to realize the property of such dissolved firm. It was categorically submitted that the learned Court was not justified in holding that the suit is protected under Section 69(3)(a) of the said Act. It was then submitted that order holding the suit as maintainable is revisable whereas the order of injunction is appealable and thus, the combined order left the petitioners with no scope but to approach this Court with an application under Article 227 of the Constitution.
7. It was submitted by learned Counsel Mr. Roy Chowdhury, appearing for the petitioners that the impugned order reflects mis-appreciation of law resulting in jurisdictional error.
8. In response to this, Mr. Bidyut Banerjee, appearing as learned Counsel for the opposite parties, submitted that the order under challenge, does not suffer from any jurisdictional error so as to justify any manner of interference.
9. It appears that the learned Trial Court by the impugned order dated 11.05.2006 allowed the application for injunction. Section 69 of the Indian Partnership Act deals with the effect of non-registration. Referring to the same, it was submitted by Mr. Roy Chowdhury that the learned Trial Court should not have entertained the application for injunction as the opposite parties/ plaintiffs just claimed to be partners of an unregistered firm.
10. True, Section 69(1) of the Partnership Act, 1932 clearly lays down that '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 person 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 or Firms as a partner in the firm.'
11. Sub-section (2) of Section 69 read as follows:
(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.
12. Mr. Roy Chowdhury, in this context, referred to the decision in the case of Guno Prosad Kundu v. Abhoij Hari Sreeniani and Anr. as reported in 52 CWN 15. It is true that if the suit is clearly one to enforce a right arising from the partnership agreement and has been instituted by the plaintiff suing as a partner it falls directly within the wording of Section 69(1) of the India Partnership Act. But Sub-section (3) of Section 69 of the said Act refers to a new dimension as the provisions of Sub-sections (1) and (2) cannot affect 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 realize the property of a dissolved firm.
13. In the case of Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical Industries and Anr. as reported in (2004) 13 SCC 750, the Hon'ble Apex Court dealt with the aforesaid Section 69(1) and Section 69(3) of the Partnership Act and the relative scope and applicability. Admittedly the firm being M/s. R.S.S. Bricks Works (Brand Deep) is not registered. Naturally, any right arising out of such partnership agreement cannot be sought to be enforced in view of the restriction under Section 69(1) of the Act.
14. The applicability of Sub-sections (1) and (2) of Section 69 of the Partnership Act as can be gathered from the language is wide enough to cover suits relating to a dissolved firm. It not essential that the firm should be actually in existence at the date when the suit or proceedings were instituted, Sub-sections (3) and (4) specifically mention the suit and proceedings to which the provisions of Sub-section (1) and (2) are not applicable. A suit or proceeding to enforce a right arising from a contract will not be maintainable if the dissolved firm was unregistered on the date of institution.
In the case under reference, the plaintiffs in the application for injunction stated that in view of disputes and differences between the plaintiffs on the one hand and defendant Nos. 1 and 2 on the other, they claimed the account of the partnership business. It was specifically alleged that the defendant Nos. 1 and 2 while dealing with the cash and the accounts of the business committed breaches of the Partnership Deed by misappropriating money of the business and by not rendering true accounts. This compelled the plaintiffs to approach the Court with the prayer for decree of declaration, permanent injunction and accounts.
15. Learned Trial Court appears to have taken into consideration the stand of the defendants, who in their respective written statement took the plea that the firm had been dissolved. If so, nothing can stand in the way of the plaintiffs approaching the learned Court for an order of injunction. Deriving inspiration from the decision in the case of Mukund Balkrishna Kulkarni (supra), it was submitted that the right of partner to ask the dissolution of a firm is a right the enforcement of which is otherwise forbidden under Section 69(1)). The Apex Court in the said case held that 'it is because of the exception under Sub-section (3) of Section 69 that a person suing as a partner can enforce a right under the contract for dissolution of the firm and accounts. The claim for a half share in the firm's assets would be a necessary corollary to a prayer for dissolution.... ...'
16. this being the substantial issue raised at the time of hearing of the present application, I do not think that any further discussion is necessary. In the considered opinion of this Court, learned Trial Court considered the matter In its right perspective and the impugned order dated 11.5.2006 does not suffer from any jurisdictional error so as to justify any manner of interference.
The present application being CO. 2161 of 2006 be dismissed. Interim order, if any, stands vacated. There is no order as to costs.
The order impugned being Order No. 15 dated 11.5.2006 passed by the learned Civil Judge (Jr. Divn.) at Amta, Howrah in T.S. No. 118/05 be affirmed.
Send a copy or this judgment to the learned Trial Court for information and necessary action.
17. Xerox Certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.