K C BISHWAS SONS Vs. CENTRAL ALKUSA COLLIERY CO

JUDGEMENT

(1.) THE petitioners are the defendants in Money Suit No. 67 of 1965 which has been filed by the Central Alkusa Colliery Company a partnership firm carrying on business at Gandudih Colliery, in the Court of" the First Subordinate Judge at Dhanbad for recovery of Rs. 17,000/- and odd being the balance price of coal sold and supplied on credit to the petitioners between 8-7-1968 and 31-7-1968. THEy have filed this application in revision against the order of the learned Subordinate Judge declining their prayer to decide the issue of maintainability of the suit as a preliminary issue. THE preliminary issue sought to be raised by the petitioners is whether the suit is barred under Section 69 (2) of the Indian Partnership Act, 1932, which is in the following terms:

(2.) IN paragraph 1 of the plaint, it has been asserted that the plaintiff is a registered partnership firm registered under the INdian partnership Act and the affidavit and the verification appended to the plaint has been made by Jagdish Chandra Harisingh, describing himself as one of the partners of the plaintiff firm. IN the written statement which was filed on behalf of the defendants on the 21st July, 1969, it has been averred in paragraph 1 that the suit is not legally maintainable, and in paragraph 5 as follows:

(3.) THE defendants' prayer for deciding the issue of maintainability of the suit as a preliminary issue was opposed on behalf of the plaintiff and it was alleged that the plaintiff firm was registered with the Registrar of Firms at Patna on 21-10-1955 with four partners but thereafter three of the partners had died. THE partnership, however, waa continuing and was ultimately reconsti- tuted by the surviving partner (Shri Kalyanji Mavji) and the heirs of the deceased partners and a formal deed of partnership was, accordingly, executed on the 5th July, 1968. It was further stated on behalf of the plaintiff that an information regarding the change in the constitution of the firm was lodged with the Registrar of Firms, which the latter had acknowledged on the 22nd December, 1969. Thus, according to the plaintiff, it was a registered partnership firm at the time of the institution of the suit.