Final Order 9

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Misc DJ 143/22
JONI KUMAR & ANR. Vs. RAJAT KUMAR & ORS.
26.04.2023 at 10:26 a.m
Present: Sh. N.K. Sharma, Ld. Counsel for the applicant/
plaintiff.
On further clarification sought, reliance is placed
upon Rameshwar Sarkar v. State of West Bengal and Ors, AIR
1986 Cal 19.
The Court has considered the submissions and
material on records.
An application under Section 151 CPC has been
filed on behalf of the plaintiff seeking recall of order dated
04.08.2022 and for restoration of the suit primarily on the
following grounds:
(a) that the suit has not been filed by the unregistered
partnership firm but the suit is between partners and is therefore,
maintainable.
(b) that Court Fees of Rs.65,000/- was also filed along with
the suit which cannot be refunded to the plaintiffs and would
therefore, cause monetary loss to them.
During the course of arguments, plaintiffs have
heavily relied upon Jet Ply Wood Private Ltd. & Anr. v.
Madhukar Nowlakha & Ors., Appeal (Civil) 1367 of 2006
decided on 28.02.2006 decided by Supreme Court and
Rameshwar Sarkar v. State of West Bengal and Ors, AIR 1986
Cal 19 decided by Calcutta High Court.
The Court vide order dated 04.08.2022 had
dismissed the suit as withdrawn with liberty to file afresh, as per
law. Admittedly, Four Armed Engineering is an unregistered
Contd...
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CS 143/22
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partnership. As per Section 69 of the Indian Partnership Act,
1932:
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 person suiting 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 Reigster of Firms as a
partner in the firm.
Thus, even if the suit has been filed by two partners
against the alleged defaulting partner, the same cannot lie. The
judgments relied upon by the plaintiffs are distinguishable on
facts as the controversy in the present matter is for an
enforcement of rights & liabilities arising from a partnership
which is unregistered and primarily are statutory in nature.
Further, mere inconvenience due to inability to seek back the
Court Fees, cannot be the ground to restore the present suit in
exercise of the inherent powers of this Court. Therefore, the
application stands dismissed.
File be consigned to records.
(Vijeta Singh Rawat)
Additional District Judge-01
PHC/New Delhi/26.04.2023(tph)
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