- (1.) UMESHWAR Pandey, J. Heard Sri Vishnu Gupta, learned Counsel for the appellants and Sri Rahul Sahai for the respondents. With the consent of the parties' Counsel, this appeal is being finally heard and decided.
(2.) THE appellants challenge the order dated 25-7-2006 whereby the Court below has allowed a review petition under Order XLVII, Rule 1 C. P. C. and has reviewed the order dated 16-7-2002 (Annexure-3 to the appeal) and it has been held that Suit No. 550 of 1998 is maintainable also for the second relief claimed by the plaintiffs therein. A suit for rendition of the account, dissolution of the firm and permanent injunction was filed and a preliminary issue was framed whether the suit is maintainable or not and after hearing the parties the trial Court initially gave its findings that the suit was not maintainable at all. Accordingly, it was dismissed. Against this order of the trial Court an appeal was preferred before the lower appellate Court which after hearing the parties, was of the view that in so far as the relief No. 1 is concerned which is for the rendition of account and dissolution of the firm, the suit was maintainable. But the suit as it relates to relief No. 2 for permanent injunction, it is not maintainable. This decree of the appellate Court was challenged in second appeal before this Court by the defendants-appellants and that appeal was allowed and it was held that the suit in respect of either of the two reliefs, was not maintainable at all. Against this order of the Court, the plaintiffs went in Special Leave Petition No. 19482 of 2002 before the Hon'ble Supreme Court, which after due hearing of the parties, was allowed and the judgment and order of the first appellate Court was restored and the order of this Court was set aside. Thus, in the light of the order of the Hon'ble Supreme Court, the suit was held to be maintainable in so far as it relates to relief No. 1 claimed for rendition of account and dissolution of firm. The apex Court, however, did not touch the dispute with regard to relief No. 2 which was already sub judice before the first appellate Court in the present review petition. After all these developments in the suit, the Court below, by the impugned order, has allowed the plaintiffs' review petition by holding that the suit is maintainable also for the relief claimed for a decree of the permanent injunction. The learned Counsel appearing for the appellants Sri Gupta has tried to emphasize that since the plaintiff B. C. Jain himself has not pleaded anywhere in the plaint that he was, while being co-opted as a partner in the firm (Defendant No. 2), it was freshly registered, the plaintiff in his individual capacity was not competent to file the suit in view of the implications of Section 69 (2) of the Indian Partnership Act. It is further submitted that the written statement filed in an earlier Suit No. 215 of 1999 (Annexure-8), in which defendant No. 4, Shaibullah, specifically denied the plaintiff-B. C. Jain being a partner of the firm (Defendant No. 2), if was not brought to the notice of the Court when the findings in the appeal were recorded and the judgment dated 16-7-2002 was rendered, was hardly relevant for the disposal of present review petition. The suit against the third party (Defendant No. 1) for relief of permanent injunction in view of mandatory provisions of sub-section (2) of Section 69 of the Indian Partnership Act, was wholly incompetent and there was no occasion or legal justification to review the earlier order. He has also submitted that since the entire due payment under the contract from the defendant No. 2, is to be made in favour of the firm, the defendant No. 2, the relief No. 2, which is in that respect, is actually not maintainable also in the face of a Division Bench decision of this Court in Mahendra Singh Chaudhary & Anr. v. Tej Ram Singh & Ors. , and also a decision of the Supreme Court in case of Loonkaran Sethla etc. v. Mr. Ivan E. John etc. , AIR 1977 SC 336: (1977) 1 Supreme Court Cases 379.
(3.) IN reply to the aforesaid facts, the learned Counsel appearing for the opposite parties has tried to stress upon the fact that even though the plaintiff has filed the suit in his individual capacity, relief No. 2 was wholly permissible for being decreed in his favour in view of the fact that under the agreement as stated in para 8 of the plaint, the plaintiff was to receive certain percentage of the payments out of total amount paid by the defendant No. 1 and if the defendants No. 2 to 6 were creating certain impediments in that by conniving with defendant No. 1, the suit of the plaintiff in individual capacity was wholly competent. It is not disputed that the plaintiff opposite party in his individual capacity has filed the suit claiming relief of permanent injunction regarding 45% of the amount due from out of the total payments made by the defendant No. 1 to the defendant No. 2, firm. In fact, this amount or whatsoever amount is due against the defendant No. 1 for defendant No. 2 is a sum, which is payable only to the firm of which the plaintiff is also a partner alongwith defendant Nos. 2 to 6. Accordingly, the amount so payable to the account of the firm is to be paid and credited to the firm's account only and in one or the other form this relief No. 2 of permanent injunction has been sought for only on or behalf of the firm and not in individual capacity of the plaintiff. Sub-Section (2) of Section 69 of the Indian Partnership Act provides that no suit to enforce a right arising from out of contract shall be instituted by or on behalf of the firm against a third party unless the firm is registered. Undisputedly this firm, the defendant No. 2 is an unregistered firm. Therefore, the present suit filed on behalf of the said firm, the defendant No. 2 for permanent injunction by one of its partners, has to be treated as incompetent. While relying upon the decision in the case of Loonkaran Sethiya (supra), the Division Bench of this Court in the case of Mahendra Singh Chaudhary (supra) has held as below: ". . . . . . . . . . . . . . . . . . it would be seen that here also the only capacity in which the plaintiff has instituted the suit is that of a partner of the firm said to have been constituted on 1st February, 1984. He has not claimed any other capacity. The relief for injunction is as pointed out above for the benefit of this firm said to have been constituted on 1st February, 1984 which admittedly is an unregistered firm. In the absence of the injunction prayed for the cheques meant for M/s. M. S. Chaudhary and Company which were given to Mahendra Singh Chaudhary were according to the plaintiff not reaching the firm constituted on 1st January, 1984, but were being misutilised by Mahendra Singh Chaudhary. The purpose of obtaining injunction was that these cheques may reach the coffers of the firm constituted on 1st February, 1984. Apparently, therefore, the suit was for the benefit and in the interest of the firm and consequently as pointed out by the Supreme Court it would be a suit on behalf of the firm. Moreover, the relief prayed for in the suit is also directed against the other partners of the firm. The injunction claimed is that the cheques meant for M/s. M. S. Chaudhary and Company may be paid only to the plaintiff and Mahendra Singh Chaudhary and to no other partner of the firm including Mahendra Singh Chaudhary singly. For all these reasons we are of the opinion that the suit is bared by Section 69 of the Partnership Act. That being so the application for temporary injunction in which the order appealed against was passed was not maintainable and the order appealed against has to be set aside on this ground alone. ";