UNION OF INDIA (UOI) Vs. DURGADUTTA BISWANATH AND ORS.

JUDGEMENT

(1.) THIS is defendant's appeal against the judgment of the Subordinate Judge, Lower Assam Division (Nowgong) decreeing the suit. The facts briefly are that the plaintiff respondent was a partnership firm and carries on business of textile goods at Haibargaon, Nowgong, Assam. The pro forma defendants were commission agents on behalf of the plaintiff and carry on business at Bombay. The Union of India was impleaded as a defendant and Western Railway, Bombay, Central Railway, Bombay and North -Eastern Railway, Gorakhpur were all Impleaded as defendants. They wore the carriers and they were managed by the Union of India. A consignment of nineteen bales of C. C. P. goods was booked from Ex Wadi Bundar to Nowgong, Assam under invoice No. B/40/R/R No. 4348/50 dated 2 -8 -1951 and at the time of the booking the condition of the goods was good.

(2.) IN the appeal the main contention raised by the appellant is that the subsequent registration cannot validate the institution of the suit. A ground has also been taken that the trial Court should have allowed the parties to lead evidence but as it appears from the judgment of the trial Court, the parties made a statement that they did not wish to adduce any evidence. The only question therefore argued before us is that the subsequent registration of the firm cannot validate the institution of the suit. Before we consider the authorities on this point it will be necessary to refer to the language of Section 69(2) of the Indian Partnership Act which reads as follows:

(3.) The language of Section 171 of the Indian Companies Act is different from the language of Section 69(2) of the Indian Partnership Act. Section 171 expressly lays down that the suit cannot be proceeded with or commenced without obtaining permission of the judge. This section in terms contains prohibition both against the commencement and further proceeding. The Legislature has deliberately used the two words 'proceeded with' or 'commenced'. In our opinion the use of these two words clearly indicates that the legislature never intended that failure to commence the proceeding without obtaining the leave will render the entire proceedings void ab initio.