J PURSHUTTAM DAS AND CO Vs. R R BROTHERS

JUDGEMENT

(1.) This second appeal by the plaintiff, a firm, arises out of a suit for recovery of Rs. 5,668.81 p. as unpaid portion of the price of Bin tobacco supplied on credit and Rs. 2,712.32 p. as interest thereon at the rate of Re. 1/- per cent, per month and Rs. 16.75 p. as the cost of pleader's notice, the total claim being Rs. 8,397.98 p. The question of law which arises for decision in this appeal is whether the suit has rightly been dismissed by the courts below on the ground that it is barred under Section 69 (2) of the Indian Partnership Act (hereinafter referred to as 'the Act') for the reason that the plaintiff failed to bring on the record before the trial Court documentary evidence showing that the partners of the firm as constituted on the date of the institution of the suit were shown in the Register of Firms. Both the courts below have dismissed the suit on the aforesaid ground. An application was filed before the lower appellate Court for taking as additional evidence a certified copy of the Register of Firms but that was rejected. In this Court too a similar application has been filed.

(2.) The case of the plaintiff is that it is a firm dealing in Biri tobacco with its head office at Phulauriganj at Patna City and during the period 27-10-54 to 4-4-1956 it supplied Biri tobacco to defendant No. 1, another firm at Kishanganj in the district of Purnea. Defendants Nos. 2 and 3 are said to be the partners of that firm. The articles supplied during that period were worth Rs. 37,611.03 p. of which the defendants paid only Rs. 31,942.22 p. The balance of Rs. 5,668.81 p. remained unpaid.

(3.) Defendant No. 2 is father of defendant No. 3. According to him. he had no concern with the firm, defendant No. 1, and defendant No. 3 was the sole proprietor thereof. Defendants Nos. 1 and 3 in their written statement averred that the suit was barred by limitation and also by Section 69 of the Act. They also denied their liability for the entire amount as claimed by the plaintiff and challenged the plaintiff's claim for interest on the ground that there was no contract for it. According to them, the contract etc. were entered into and finalised at Purnea and, therefore. Patna courts had no jurisdiction to entertain the suit. The trial Court held that the suit was not barred by limitation and could be entertained by the court at Patna. It further held that the plaintiff was entitled to recover Rupees 5.668.81 P. as claimed by it, but it was not entitled to interest till 10-12-1961. It was entitled to interest only from 11-12-1961, the date on which the defendant received the pleader's notice demanding principal with interest. It however, held that the suit was not maintainable in view of the mandatory provisions of Section 69 (2) of the Act. The lower appellate Court has confirmed all these findings of the trial Court. It may be stated here that the plaintiff-appellant did produce in the trial Court evidence showing that the firm was registered, The suit was held barred under Section 69 (2) of the Act merely because it failed to produce copy of the Register of Firms showing who were shown therein as Partners of the firm. In this Court, learned counsel for the appellant has conceded that the courts below have rightly disallowed interest till 10-12-1961. Learned counsel for the respondents has also not challenged any of the findings of the courts below against them. Thus, no other question except as stated in the opening paragraph of this judgment arises for decision in this appeal. Section 69 (2) of the Act reads as follows: 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." Mr. J. C. Sinha appearing on behalf of the appellant has contended that Section 69 (2) of the Act is to be read together with Order 30 of the Code of Civil Procedure (hereinafter referred to as 'the Code') and in cases where the defendants do not claim a disclosure as required by Order 30, Rule 2 of the Code from the plaintiff as to who the partners of the firm were on the date of the institution of the suit the suit cannot be dismissed on the ground that the plaintiff has failed to produce Register of Firms to prove that partners in the firm as constituted on the date of the institution of the suit were shown therein. He has further contended that even oral evidence to prove that they were shown in the Register of Firms is admissible and in cases where there has been no change in the constitution of the Firm between its registration and institution of the suit, an inference can be drawn from the certificate of registration itself that all the partners in the firm are shown in the Register of Firms. On the other hand. Mr. K. D. Chatterjee for the respondents has contended that Register of Firms being best evidence to prove that all the partners in the firm as constituted on the date of the suit are shown therein must be produced in court and as the plaintiff failed to do that, its suit must be held not maintainable for non-compliance with the mandatory provisions of Section 69 (2) of the Act. However, he concedes that Register of Firms being a public document, certified copy of entries therein are as good evidence as the original register itself.