Case Note & Summary
The petitioner, Kolhapur Ice & Cold Storage Co., a partnership firm, filed Special Civil Suit No.200 of 1997 before the 2nd Joint Civil Judge, Senior Division, Kolhapur, seeking recovery of money for goods supplied to the respondent, Rajput Dairy. The respondent filed a written statement objecting to the maintainability of the suit on the ground that the plaintiff firm was unregistered, invoking the bar under Section 69(2) of the Indian Partnership Act, 1932. In response, the plaintiff filed an application (Exhibit 136) seeking to treat the suit as deemed to be filed on 27-8-2010, the date on which the partnership deed was registered, arguing that the defect would be cured. The Trial Court rejected the application on 10-10-2012, relying on the Supreme Court judgment in Shreeram Finance Corporation v. Yasin Khan and the Bombay High Court Division Bench judgment in Balaji Construction Co. v. Lira Siraj Shaikh, which held that subsequent registration does not cure the defect. The plaintiff then filed the present writ petition under Article 227 of the Constitution. Before the High Court, the plaintiff's counsel relied on the Supreme Court judgment in Raptakos Brett & Co. Ltd. v. Ganesh Property, particularly paragraph 30, but conceded that the observations were obiter. The High Court examined the issue and held that the bar under Section 69(2) is absolute and cannot be circumvented by subsequent registration. The court distinguished Raptakos Brett, noting that the observations were not binding, and followed the earlier binding precedents. Consequently, the High Court dismissed the writ petition, upholding the Trial Court's order and confirming that the suit is not maintainable.
Headnote
A) Partnership Law - Bar under Section 69(2) - Suit by Unregistered Firm - Subsequent Registration - The plaintiff firm filed a suit for recovery of money but was unregistered at the time of filing. The firm later registered the partnership deed and sought to treat the suit as filed on the date of registration. The Trial Court rejected the application. The High Court held that the defect of an unregistered firm filing a suit cannot be cured by subsequent registration; the suit is not maintainable from its inception. (Paras 2-6) B) Partnership Law - Precedent - Raptakos Brett & Co. Ltd. v. Ganesh Property - The plaintiff relied on this Supreme Court judgment, but the High Court distinguished it, noting that the observations in paragraph 30 were obiter and not binding. The court followed the earlier Supreme Court decision in Shreeram Finance Corporation v. Yasin Khan and the Division Bench of Bombay High Court in Balaji Construction Co. v. Lira Siraj Shaikh, which held that subsequent registration does not cure the defect. (Paras 4-6)
Issue of Consideration
Whether a suit filed by an unregistered firm can be deemed to be filed on the date of subsequent registration of the partnership deed, thereby removing the bar under Section 69(2) of the Indian Partnership Act, 1932.
Final Decision
The High Court dismissed the writ petition, upholding the Trial Court's order dated 10-10-2012, and confirmed that the suit is not maintainable due to the bar under Section 69(2) of the Indian Partnership Act, 1932.
Law Points
- Section 69(2) of the Indian Partnership Act
- 1932 bars suits by unregistered firms
- subsequent registration does not cure the defect
- the suit must be dismissed as not maintainable.
