Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Judg. In Comm. Suit 485-2020
MHCC010045682020 Presented on : 15/10/2020
Registered on : 18/12/2020
Decided on : 06/08/2024
Duration : 03Y/07M/19D
Exh.43.
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.485 OF 2020
M/s. Siddharth Trading Co.
A Partnership firm, having Registered
Office at building No.229/231, Shop
No.02, Ground floor, Parwaz Mansion,
Narshi Natha Street, Bhat Bazar,
Masjid(West), Mumbai-400 009. …PLAINTIFF
VERSUS
M/s. Vijay Stores
A Sole Proprietary Firm, having office at
6, Kaushik Niwas, Lakhamshi Napoo
Road, Matunga(C.R.), Mumbai-400 019. …DEFENDANT
Shri.Jash Vyas h/f. Adv. Sanket Shah, learned advocate for
plaintiff.
Shri. Harshal Damania, learned advocate for defendant.
CORAM : H. H. JUDGE SHRI. VISHAL SADASHIVRAO GAIKE, (COURT
ROOM No.32)
J U D G M E N T
(Delivered on 06/08/2024)
1. This is a suit for recovery of sum of Rs.14,93,227.50
(the balance principal amount of Rs.10,97,550/- and interest/late
fee amount of Rs.3,95,677.50 as on 19.09.2019) from the date of
suit till realization of the entire amount.
2. The case of plaintiff, in brief, is that, it is a Partnership
firm, owned and managed by four partners i.e., Mr. Bhupatraj P.
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2 Judg. In Comm. Suit 485-2020
Shah, Mr. Mukesh B. Shah, Mr. Jitendra B. Shah and Mr. Pratik J.
Shah and they are wholesalers of sugars and wheat products. The
defendant viz., M/s. Vijay Stores is a Sole Proprietary firm, owned
and managed by its sole proprietor Mr. Sanjay Rameshchandra
Mehta and are suppliers and manufacturers of different variety of
ice cream, dairy products and other milk sweets, Aamras (Mango
Juice) and also are distributors of Windy’s, Dinshaw and Baskin
Robbins.
3. That, the defendant approached the plaintiff for
supply of Sugar (M/30) and accordingly as per his request and
telephonic orders, the plaintiff sold, supplied and delivered sugar
(M/30) of the best quality of different Mills available with the
plaintiff (hereinafter the sugar will be referred to as “said goods”)
at the shop/Godown/manufacturing Units of the defendant firm
i.e. M/s. Vijay Stores at Raja Industrial Estate, Gala No.19, Salpa
Devi Road, Opp. Fortis Hospital, Mulund (West), Mumbai-400 080
and at Hind Services Industrial Premises Co-op. Society Ltd., Gala
No.13, Shivaji Park, Dadar(W),Mumbai-400 028. The tax invoices
were issued in respect of the said goods sold, supplied and
delivered and the defendant duly accepted the delivery of same
without any dispute, demur or protest.
4. That, as soon as the goods were dispatched through
the transporter for delivery, they were provided with proper tax
invoices of the goods to be delivered and the same were handed
over to the defendant upon delivery of the said goods. That, the
tax invoices so raised on the defendant towards the supply and
delivery of said goods had clearly mentioned the due date of the
payment towards the said goods, quantity as well as rate of sugar
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3 Judg. In Comm. Suit 485-2020
sold, supplied and delivered.
5. That, the defendant had made part payment against
the tax invoices towards the supply of the said goods raised on the
defendant prior 29.05.2018 however, defendant failed and
defaulted in making payment to the plaintiff of the following tax
invoices raised on the defendant for the supply of the goods.
Sr.
No.
Invoice No. Invoice Date Bill Amount
(in Rs.)
1. SV18-27875 22.03.2018 5,500.00
(Balance)
2. SV18-27972 28.03.2018 21,000/-
3. SV18-28009 30.03.2018 21,000/-
4. SV18-28010 30.03.2018 21,000/-
5. SV19-108 05.04.2018 21,000/-
6. SV19-109 05.04.2018 21,000/-
7. SV19-110 05.04.2018 21,000/-
8. SV19-258 11.04.2018 21,000/-
9. SV19-259 11.04.2018 21,000/-
10. SV19-260 11.04.2018 21,000/-
11. SV19-342 17.04.2018 21,000/-
12. SV19-343 17.04.2018 21,000/-
13. SV19-344 17.04.2018 21,000/-
14. SV19-402 20.04.2018 21,000/-
15. SV19-403 20.04.2018 21,000/-
16. SV19-404 20.04.2018 21,000/-
17. SV19-405 20.04.2018 21,000/-
18. SV19-452 24.04.2018 21,000/-
19. SV19-453 24.04.2018 21,000/-
20. SV19-454 24.04.2018 21,000/-
21. SV19-489 26.04.2018 21,000/-
22. SV19-490 26.04.2018 21,000/-
23. SV19-491 26.04.2018 21,000/-
24. SV19-538 30.04.2018 21,000/-
25. SV19-539 30.04.2018 21,000/-
26. SV19-540 30.04.2018 21,000/-
27. SV19-602 03.05.2018 21,000/-
28. SV19-630 04.05.2018 21,000/-
29. SV19-631 04.05.2018 21,000/-
30. SV19-632 04.05.2018 21,000/-
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4 Judg. In Comm. Suit 485-2020
31. SV19-659 07.05.2018 21,000/-
32. SV19-660 07.05.2018 21,000/-
33. SV19-661 07.05.2018 21,000/-
34. SV19-751 11.05.2018 21,000/-
35. SV19-752 11.05.2018 21,000/-
36. SV19-753 11.05.2018 21,000/-
37. SV19-867 15.05.2018 21,000/-
38. SV19-868 15.05.2018 21,000/-
39. SV19-869 15.05.2018 21,000/-
40. SV19-931 18.05.2018 21,000/-
41. SV19-932 18.05.2018 21,000/-
42. SV19-933 18.05.2018 21,000/-
43. SV19-992 22.05.2018 21,000/-
44. SV19-993 22.05.2018 21,000/-
45. SV19-994 22.05.2018 21,000/-
46. SV19-1079 25.05.2018 21,000/-
47. SV19-1080 25.05.2018 21,000/-
48. SV19-1081 25.05.2018 21,000/-
49. SV19-1147 28.05.2018 21,000/-
50. SV19-1163 30.05.2018 21,000/-
51. SV19-1164 30.05.2018 21,000/-
52. SV19-1165 30.05.2018 21,000/-
53. SV19-1166 30.05.2018 21,000/-
54. SV19-1167 30.05.2018 21,000/-
Total 10,97,550.00
6. That, the plaintiff was supplying goods to the defendant
for more than 15 years and the defendant had never raised any issue
with reference to the quality of the goods sold, supplied and
delivered. The total principal amount which is due and payable by
the defendant and which the defendant has failed and defaulted to
pay to the plaintiff in accordance to the above tax invoices is
Rs.10,97,550/-.
7. That, as per payment condition on the above mentioned
invoices, the defendant is liable to pay interest/late fee of Rs.3
quintal per day, if payment is not made within seven days from the
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5 Judg. In Comm. Suit 485-2020
date of invoice. The interest /late fee clause mentioned in the Tax
invoices constitutes and also binds the defendant to pay the
interest/late fee @ Rs.3 per quintal per day, if payment is not made
within seven days from the date of the invoice.
8. That, the defendant was regular in making payment
until 29.05.2018 and had made last part payment amounting to
Rs.1,00,000/- towards the goods purchased by him from the plaintiff
and thereafter defaulted in making payment of balance tax invoices
leaving behind the outstanding principal amount due and payable by
the defendant amounting to Rs.10,97,550/- alongwith interest/late
fee @ Rs.3 per quintal per day from the date of the invoice.
9. That, the plaintiff had on various occasions reminded
and requested the defendant through telephonic conversations,
personal approach and various other communications to clear
outstanding liability alongwith interest/late fee towards the goods
purchased by them. The defendant for the first time in 15 years, vide
its letter dated 02.06.2018, stated that the plaintiffs have charged
exorbitant rates for the goods sold, supplied and delivered to him and
he demanded to send revised bills from the last July with correct
prices.
10. That, on 13.12.2018 the plaintiff called upon the
defendant to pay amount of Rs.10,97,500/- alongwith interest/late
fee @ Rs.3 per quintal per day, from the date of the invoice within
15 days from the receipt of the said letter.
11. That, the defendant in reply to the above letter, vide his
letter dated 02.01.2019 once again demanded the plaintiff to send
revised bills of the said goods. In reply to the letter of defendant, the
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plaintiffs, vide letter dated 23.01.2019 denied the contents of the
said letter and stated that they had sold, supplied and delivered said
goods on the request and reminder of the defendant and proper tax
invoices was also given upon delivery of the said goods. It was
further stated that, it was defendant’s obligation to check the tax
invoices upon delivery of goods and again called upon the defendant
to pay amount of Rs.10,97,550/- alongwith interest/late fee @ Rs.3
Per quintal per day from the date of the invoice.
12. That, the defendant in reply to the plaintiff’s letter dated
23.01.2019, vide his letter dated 11.02.2019 again stated that they
were over billed and called upon the plaintiff to refund excess
amount failing which the defendant shall proceed legally against the
plaintiff.
13. That, in reply to the defendant’s letter dated 11.02.2019,
the plaintiff vide their letter dated 19.02.2019 denied the contents of
the defendant’s letter and once again stated that the goods were
supplied as per the requirements of the defendants and proper tax
invoices were given at the time of the delivery of the said goods. The
plaintiff also stated that, if there was any discrepancy, the defendant
should have brought to the notice of the plaintiff which the
defendant have failed to do so and again called upon the defendant
to pay amount of Rs.10,97,550/- alongwith interest /late fee @ Rs.3
per quintal per day from the date of the invoice.
14. That, the defendant is holding GSTN
No.27AADPM8954A1ZP in the name of Sanjay Rameshchandra
Mehta, Trade Name : Vijay Stores as per the data available on the
website of Goods and Service Tax. It can be noted that the defendant
have filed GST returns till date and it is presumed that the defendant
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7 Judg. In Comm. Suit 485-2020
has also claimed the credit or refund of GST on the outstanding
amount of the Tax Invoices issued by the plaintiff.
15. That, the plaintiff through their advocate’s notice dated
24.06.2019 bearing reference No.SS/625/2019 sent by RPAD on
25.06.2019 called upon the defendant to pay R.14,25,041.25
[principal amount Rs.10,97,550/- and interest/late fee amount
Rs.3,27,491.25] plus further interest/late fee @ Rs.3 per quintal per
day from the date of the invoice till the payment is realized, within
the 15 days from the receipt of the notice issued by the advocate of
the plaintiff, failing which the plaintiff will institute legal proceedings
against defendant for the recovery of the amount. The said notice
was received by the defendant on 27.06.2019 as per the tracking
report and postal acknowledgment received by the plaintiff.
16. That, the plaintiff through their advocate’s reminder
notice dated 17.07.2019 bearing reference No.SS/717/2019 sent by
RPAD on 17.07.2019 once again called upon the defendant to pay
Rs.14,25,041.25 [principal amount Rs.10,97,550/- and interest late
fee amount Rs.3,27,491.25] plus further interest/late fee @ Rs.3 per
quintal per day from the date of invoice till the payment is not made
within seven days from the date of the notice issued by the advocate
of the plaintiff, failing which the plaintiff will institute legal
proceedings against defendant for the recovery of the amount. The
said notice was received by the defendant on 19.07.2019 as per the
tracking report and postal acknowledgment received by the plaintiff.
17. That, the advocate for defendant in reply to plaintiff’s
advocate letter dated 17.07.2019, vide letter dated 09.08.2019
received by the plaintiff on 16.08.2019 denied the contents of the
demand notice and called upon the plaintiffs to unconditionally
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8 Judg. In Comm. Suit 485-2020
withdraw their notice dated 17.07.2019.
18. That, the advocate for plaintiff in rejoinder to the
defendant’s advocate letter dated 09.08.2019, vide their letter dated
26.08.2019 bearing No.SS/826/2019 denied the contents of the
defendant’s advocate letter and repeated and reiterated what was
stated in demand notice dated 24.06.2019 bearing reference
No.SS/625/2019 and reminder notice dated 17.07.2019 bearing Ref.
No.SS/717/2019 addressed to the defendant by the plaintiff.
19. That, in the circumstances aforesaid, the defendants are
bound and liable to pay to the plaintiff’s an aggregate amount of
Rs.14,93,227.50 (the balance principal amount of Rs.10,97,550/-
and interest/late fee amount of Rs.3,95,677.50 as on 19.09.2019) as
per particulars of claim. The plaintiffs is also entitled to further/late
fee @ Rs.3 per quintal per day, from the date of the invoice till the
payment is realized from the date of filing of the suit till payment is
realized.
20. That, the suit is based on the invoice which is a self
contained contract and therefore the reliefs as prayed for falls within
provisions of Order XXXVII of the Code of Civil Procedure 1908 and
no reliefs not falling within the ambit of Rule 2 thereof are claimed
herein.
21. That, the order was received in Navi Mumbai, the
payment and part payment were received in Mumbai, the said goods
were supplied from Navi Mumbai and goods were delivered in
Mumbai and balance payment is also to be received in Mumbai
hence, the material cause of action has taken place in Mumbai. The
registered office of the plaintiffs is within the jurisdiction of this
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9 Judg. In Comm. Suit 485-2020
Court of Masjid Bunder, Mumbai – 400009. Therefore, this Court has
jurisdiction to try, entertain and dispose off the above suit.
22. That, the claim of the plaintiff’s is not barred by the law
of limitation as the balance amount of last invoice is of dated
30.05.2018 and the outstanding amount was to be paid in seven days
of the invoice amount and the last part payment was received on
29.05.2018. Therefore, the claim of the plaintiff’s is within limitation.
Thus, the present suit.
23. The defendant appeared in pursuance of service of Writ
of Summons. The Written Statement of the defendant is filed at
Exh.7. The contentions of the defendant in brief, are that, he has
denied each and every statement made by the plaintiff in the plaint
which is inconsistent with and/or contrary thereto. That, the suit is
false, frivolous, vexatious, misconceived and not tenable and
maintainable in law. No cause of action has arisen to the plaintiff for
filing the suit. The plaintiff is guilty of “Suppressio veri” and
“Suppressio falsi” and has not come before the court with clean hands
therefore, it should be dismissed with costs. The plaint is filed in the
name of M/s. Siddharth Trading Company, a partnership firm and is
verified by one Mr. Mukesh B. Shah claiming to be a partner of the
plaintiff firm. However, no document is annexed which is in favour of
said Mr. Mukesh B. Shah authorizing him to initiate, file or
commence the suit. Therefore, on these grounds the suit deserves to
be dismissed with costs.
24. That, the subject matter of the present suit does not fall
within the ambit of commercial dispute as defined in Section 2(1)
(c ) of the Commercial Courts Act, 2015 therefore, this Court has no
jurisdiction to try and entertain the suit.
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10 Judg. In Comm. Suit 485-2020
25. That, the plaintiff has taken undue advantage of its own
wrong and cheated the defendant therefore, he is liable for criminal
prosecution. That, defendant had accepted the delivery of the goods
without any demur or protest, but as soon as it came to his
knowledge that the plaintiff is charging exorbitant rates of the goods
to him, he addressed a letter on 02.06.2018 itself informing him
about the exorbitant rates charged to him and subsequent indulging
in malpractice and breach of trust. Therefore, he called upon the
plaintiff to send revised bills from July 2017 which the plaintiff failed
and neglected to provide. The defendant never admitted the balance
amount of Rs.10,97,550/- and no principal amount alongwith
interest and late fee is payable by him. Therefore, the suit deserves to
be dismissed with costs.
26. On the above rival contentions in pleadings of both the
parties, following issues were framed by my learned Predecessor on
28.03.2022 at Exh.11 and I have recorded my findings thereon for
the reasons stated thereunder.
ISSUES FINDINGS
1. Whether the plaintiff proves that, against
the goods sold, supplied and delivered to
the defendant principal amount of
Rs.10,97,550/- is due from the defendant ?
In the affirmative.
2. Whether the defendant proves that, the
plaintiff has charged exorbitant rate of the
goods than the agreed rate of the goods ?
In the negative.
3. Whether the defendant has accepted the
goods without raising any dispute as to the
quantity, quality and rates ?
In the affirmative.
4. What is the agreed rate of interest or late
fee on the overdue payment ?
Late fee of Rs. 3.00
per quintal per day
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11 Judg. In Comm. Suit 485-2020
from the date of
the overdue bill is
proved.
5. Whether this Court has jurisdiction to try
and decide this Suit ?
In the affirmative.
6. Whether this suit is filed by authorised
person ?
In the negative.
7. What order and decree? ...As per final order.
REASONS
AS TO ISSUE No.1 to 3:
27. The the evidence for the above mentioned three issues is
interconnected hence, they are being discussed here together for the
purpose of convenience and to avoid repetition of discussion on
evidence. The affidavit of evidence in lieu of examination-in-chief as
(PW-1 Mukesh Bhupatrai Shah) has filed at Exh.12. He has repeated
and reiterated in his evidence affidavit, the contents of the plaint. He
has relied upon following documents : Exh.15 Authority letter dated
02.04.2020, Exh.16 Authority letter dated 16.09.2019, Exh.17
Partnership deed dated 01.03.2020, Exh.18 Deed of retirement cum
reconstitution dated 01.04.2020, Exh.19 Tax invoices issued by plaintiff
upon the defendant towards the sale, supply and delivery of the said
goods, Exh.20 signed copy of ledger account of the defendant in the
books of the plaintiff for the period 01.04.2017 to 31.03.2019, Exh.21
letter dated 02.06.2018 addressed by the defendant to the plaintiff,
Exh.22 office copy of letter dated 13.12.2018 addressed by the plaintiff
to the defendant alongwith postal receipt and delivery proof, Exh.23
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12 Judg. In Comm. Suit 485-2020
letter dated 02.01.2019 addressed by the defendant to the plaintiff,
Exh.24 office copy of the letter dated 23.01.2019 addressed by the
plaintiff to the defendant alongwith postal receipt and postal
acknowledgment, Exh.25 letter dated 11.02.2019 addressed by the
defendant to the plaintiff, Exh.26 copy of letter dated 19.12.2019
addressed by the plaintiff to the defendant alongwith postal receipt,
Exh.27 screen shot of the GST details of the defendant available on the
goods and service tax official web portal, Exh.28 copy of advocates
notice dated 24.06.2019 bearing reference No.SS/625/2019 addressed
by the plaintiff advocate to the defendant alongwith postal receipts and
postal acknowledgment, Exh.29 copy of advocate notice dated
17.07.2019 bearing reference no.SS/717/2019 addressed by the
plaintiff advocate to the defendant alongwith postal receipts and postal
acknowledgment, Exh.30 defendant advocate letter dated 09.08.2019
addressed to the advocate for plaintiff, Exh.31 advocate notice dated
26.08.2019 bearing reference No.SS/826/2019 addressed by the
plaintiff advocate to the defendants advocates alongwith postal receipts,
acknowledgment alongwith tracking report.
28. That, there is nothing contradictory or untrustworthy in the
evidence of the PW-1 regarding the supply of the said goods and the
rates charged for them to the defendant. The defendant, in his written
statement has not specifically denied the receipt of the said goods from
the plaintiff. He has examined himself as DW-1 at Exh-33. He has
specifically admitted that, the plaintiff had raised invoices upon him
but, he has not personally perused them. He further deposed that, it
was agreed between him and the plaintiff that the terms and conditions
on the invoices are not to be acted upon. It is necessary to mention here
that, as the defendant has admitted the raising of invoices Exh-
19(collectively) upon him by the plaintiffs therefore, his defence of
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13 Judg. In Comm. Suit 485-2020
alleged oral agreement to not to act upon the terms and conditions
therein, cannot be accepted in view of the documentary evidence
Exh.19 (collectively).
29. That, at the fag end of the cross-examination of the DW-1,
a Court question was asked to him regarding the use of the said goods
delivered to him by the plaintiff under the invoices Exh-19
(collectively). He categorically admitted in his answer to the said Court
question that, as the plaintiff did not take the said goods back despite of
his intimation through a mediator, he had entirely used them for his
business purpose. Thereafter a second Court question was asked to him
that, as he wanted to return back the said goods then, whether he had
raised any debit note against the plaintiffs and he again categorically
answered that, he had never raised any debit note against the said
goods intended to return back.
30. That, it is thus clear from the oral and documentary
evidence of the plaintiff coupled with the cross-examination of the
defendant i.e. the DW-1 that, the plaintiff has proved that it had sold,
supplied and delivered the said goods to the defendant and invoices
Exh-19 (collectively) were raised by him for the said goods and the
defendant had used the entire goods for his business purpose without
initially, raising any dispute towards quality and rates of the said goods.
There is absolutely no documentary evidence brought on record by the
defendant to prove his defence of charging of exorbitant rates by the
plaintiffs for the said goods supplied by it. Thus, the plaintiffs has
proved that the principal amount of Rs.10,97,550/- is due from the
defendant for the said goods sold and supplied to him. Therefore,
consequently, I answer issue no. 1 and 3 in the affirmative and issue no.
2 in the negative.
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14 Judg. In Comm. Suit 485-2020
AS TO ISSUE No. 4:
31. This issue is regarding the agreed rate of interest or late
fee on the overdue payment from the defendant. The plaintiff has
proved that a principal amount of Rs. 10,97,550/- is due from the
defendant. He has also proved the invoices Exh. 19 (collectively) raised
on the defendant for the said goods sold and supplied to him and used
by him for his business purpose. The said invoices contain conditions of
payment and the condition no. 4 clearly stipulates that, if the payment
is not made within seven days from the bill date, late fee of Rs. 3.00 per
quintal per day will be charged from the date of the bill.
32. The defendant has admitted the raising of said invoices
upon him and using the goods so received for his business purpose.
Therefore, plaintiff has proved the agreed rate of interest or late fee on
the overdue payment from the defendant is of Rs.3,95,677.50 as on
19.09.2019. Hence, I answer this issue accordingly.
AS TO ISSUE No. 5:
33. This issue is regarding the territorial jurisdiction of this
Court to try and decided the present suit. The plaintiff has proved that
part payments were received in Mumbai, the said goods were supplied
from Navi Mumbai and delivered in Mumbai and balance payment was
also to be received in Mumbai hence, the material cause of action has
taken place in Mumbai. Besides that, the defendant’s firm is admittedly
carrying on its business activity in Mumbai i.e. within the jurisdiction of
this Court. Hence, this Court has jurisdiction to try and decide the
present suit therefore, I answer this issue in the affirmative.
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15 Judg. In Comm. Suit 485-2020
AS TO ISSUE No. 6 & 7 :
34. That, as per the provision of section 69(2) of the Indian
Partnership Act, 1932, ‘
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’. Thus,
the effect of non registration of a partnership firm is that an
unregistered partnership firm cannot institute a suit to enforce its right
arising from a contract in any Court by or on behalf of that firm against
any third party.
35. It is the contention of the defendant that, the plaintiff firm
is not a registered partnership firm and the present suit is not filed by
the authorised representative of the firm. To counter this contention,
the P.W. 1 Mukesh Bhupatrai Shah, who is the partner of the plaintiff
firm, has proved the authority letters dated 02.04.2020 and 16.09.2019,
the deed of partnership dated 01.03.2020 and the deed of retirement
cum reconstitution dated 01.04.2020. From the said documents it is
proved that the P.W. 1 is authorised to file the present suit, but the real
controversy is about the non registration of the plaintiff firm. Though
the P.W. 1 has deposed that the plaintiff firm is a registered partnership
firm, but no document is proved on record to show that from the date
of the filing of the suit, the plaintiff firm is a registered partnership firm
and the suit is filed by him as his name is shown in the Register of Firms
as a partner of the firm.
36. The learned advocate of the plaintiff vehemently argued
that the bar contained in section 69(2) of the Partnership Act is not
applicable to the present suit and it is very well maintainable. He relied
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on the judgment of Hon’ble Supreme Court of India in the matter of
Shiv Developers Though its partner Sunilbhai Somabhai Ajmeri Vs.
Aksharay Developers And Others in Civil Appeal No.785 of 2022 (2022)
13 Supreme Court Cases 772.
37. In the said matter of Shiv Developers (Supra) the suit
was for declaration of Sale Deed as null and void, but the transaction
in question was not the one entered into by the plaintiff firm during
the course of its business i.e. of business construction and it had been
an independent transaction of sale of firm’s share in suit property to
the contesting defendants. Therefore, the honourable Apex Court had
held that, the bar under section 69(2) of the Partnership Act was not
applicable against the said suit.
38. In the present matter, it is proved by the plaintiff itself
that, the transaction in question was entered into by the plaintiff
partnership firm was during the course of its business of selling and
supplying sugar to the defendant’s firm. There is no evidence
regarding the registration of the plaintiff partnership firm with the
Registrar of Firms and no evidence regarding the name of authorised
representative of the plaintiff firm being shown in the Register of
Firms therefore, the bar under section 69(2) of the Partnership Act is
squarely applicable against the present suit. Though the plaintiff has
proved the due claim amount from the defendant but, in the light of
above discussion, I hold that the present suit is not filed by an
authorized representative of the firm and it is also barred due to the
above mentioned provision of the Indian Partnership Act, 1932.
Consequently, I answer issue no. 6 in the negative and proceed to
pass the following order :
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17 Judg. In Comm. Suit 485-2020
ORDER
Commercial Suit No.485 of 2020 is hereby dismissed and
disposed off.
Date :06/08/2024.
(VISHAL SADASHIVRAO GAIKE )
JUDGE, CR NO.32
CITY CIVIL COURT AT MAZGAON,
MUMBAI.
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