Case Note & Summary
The case arises from a Civil Revision Application filed by the defendant (applicant) against an order of the 3rd Civil Judge, Senior Division, Dhule, dated 29.06.2022, rejecting the defendant's application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint in Special Civil Suit No. 150 of 2022. The original plaintiff, Vishal Plot Vikrikendre, a partnership firm, had filed a suit for specific performance of an agreement to sell dated 01.12.2021 concerning suit property. The plaintiff claimed that in 1988, the defendant and another person agreed to sell the property to the erstwhile partner of the plaintiff firm, Chandrakant Kele, for Rs. 2,07,000/-, and part consideration was paid. The defendant applied for change of land use, but later refused to execute the sale deed. The suit was filed by Vishal Chandrakant Kele on behalf of the firm. The defendant moved an application for rejection of the plaint under Order VII Rule 11 CPC, contending that the suit was barred by Section 69 of the Indian Partnership Act, 1932, because Vishal Kele was not a partner of the plaintiff firm on the date of filing the suit (08.03.2022). The trial court rejected the application, leading to the revision. The defendant's counsel argued that the suit was not maintainable as Vishal Kele was not a partner, relying on M/s Shreeram Finance Corporation v. Yasin Khan. The plaintiff's counsel countered that deeds of reconstitution of the firm from 2001 and 2020, filed along with the plaint, showed Vishal Kele was inducted as a partner on 01.04.2001. Additionally, a certificate from the Registrar of Firms dated 21.06.2024 showed Vishal Kele as a partner w.e.f. 31.03.2001. The plaintiff also relied on Gwalior Oil Mills v. Supreme Industries, Shiv Developers v. Aksharay Developers, and Haldiram Bhujiawala v. Anand Kumar. The High Court, after hearing submissions and perusing records, held that the deeds of reconstitution and the Registrar's certificate clearly established that Vishal Kele was a partner of the firm at the time of filing the suit. The court distinguished Shreeram Finance and applied Gwalior Oil Mills, which held that a belated entry in the Register of Firms with retrospective effect does not attract the bar under Section 69. The court found no merit in the revision and dismissed it, upholding the trial court's order rejecting the plaint rejection application.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Partnership Bar - Section 69 Indian Partnership Act, 1932 - The court considered whether a plaint for specific performance of an agreement to sell filed by a partnership firm should be rejected because the person who filed the suit was not shown as a partner in the Register of Firms on the date of suit. The court held that where the Registrar of Firms enters the name of a partner with retrospective effect from a date prior to the suit, the bar under Section 69 is not attracted, and the plaint cannot be rejected. (Paras 6-10) B) Partnership Law - Registration of Firm - Reconstitution - Section 63 Indian Partnership Act, 1932 - The court examined the effect of a belated entry of a partner's name in the Register of Firms made with retrospective effect. Relying on Gwalior Oil Mills v. Supreme Industries, the court held that such an entry, even if made after the suit, relates back to the date of reconstitution and cures any defect regarding the partner's status. (Paras 8-10) C) Specific Performance - Maintainability of Suit - Partnership Firm - The court noted that the suit was for specific performance of an agreement to sell, and the plaintiff firm had placed on record deeds of reconstitution showing the induction of the partner who filed the suit. The court found that the partner was validly a partner at the time of filing, and the suit was maintainable. (Paras 2, 8)
Issue of Consideration
Whether the plaint in a suit for specific performance of an agreement to sell filed by a partnership firm is liable to be rejected under Order VII Rule 11 CPC on the ground that the person who filed the suit was not shown as a partner in the Register of Firms on the date of filing, in view of Section 69 of the Indian Partnership Act, 1932.
Final Decision
The Civil Revision Application is dismissed. The impugned order dated 29.06.2022 passed by the learned 3rd Civil Judge, Senior Division, Dhule, below Exh.15 in Special Civil Suit No. 150 of 2022, rejecting the application for rejection of plaint, is confirmed.
Law Points
- Section 69 of the Indian Partnership Act
- 1932
- Order VII Rule 11 of the Code of Civil Procedure
- 1908
- Rejection of plaint
- Partnership registration
- Reconstitution of firm
- Retrospective entry in Register of Firms
