TMI Blog1991 (3) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court on 9.2.1987 and admitted on 10.2.1987. The suit was filed by the petitioner stating that the plaintiff is a registered partnership firm represented by its Managing partner Mrs. Mohanasundari Murugan. 3. The first defendant filed written statement stating that the suit is not at all maintainable and the plaint is liable to be rejected in limine. In paragraph No. 2 of the written statement the first defendant has stated thus: 2. This defendant states that the plaintiff firm is not registered under Section 69 of the Partnership Act. As such, the above suit is not at all maintainable and the plaint is liable to be rejected in limine. 4. Defendants 3 to 5 who were later impleaded as parties/defendants to the suit have filed a written statement on 7th September, 1990. According to the defendants the suit as framed is wholly misconceived and not maintainable either in law or on facts and circumstances of the case. It is purely an abuse of process of law. In paragraph No. 2 of the written statement, defendants 3 to 5 have stated thus: These defendants state that the suit as framed is wholly misconceived and not maintainable either in law or on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff to withdraw the suit after getting permission from this Court to file a fresh suit on the same cause of action. According to the plaintiff, the defect which was pointed out by the defendants is only a formal defect. Though the application had been presented on 9.2.1987, as per the certificate produced in this Court, the actual registration was made and as mentioned in Form-A which is maintained under Section 59 of the Indian Partnership Act, 1932, only on 16.2.1987. Learned Counsel for the plaintiff produced a zerox copy of the firm's registration certificate signed by the Registrar of Firms, Madras Central. In Column 3, date of registration is mentioned as 16.21987, though the application for registration was presented on 9.2.1987. Since according to the plaintiff the defect pointed out by the defendant is only formal he may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. 9. This application was vehemently opposed by the learned Counsel for the first defendant and the learned Counsel for defendants 3 to 5. I have heard the elaborate arguments of Mr. V.S. Subramaniam, on behalf of plaintiff and Mr. T.V. Raman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw the suit with liberty to file a fresh suit on the same cause of action. It was contended by tie learned Counsel that the registration of a firm is effected by sending a statement to the Registrar in the prescribed form along with the prescribed fee and that the subsequent filing of the statement and the entry of the name of the firm in the Register of Firms are only ministerial acts done by the Registrar in pursuance to the registration. I am unable to countenance the said contention. I am not inclined to take that a firm can be said to be registered when the statement prescribed by Section 57(1) of the Partnership Act and the required fee are sent to the Registrar of Joint Stock Companies and the registration of the firm is effected only when the entry of the statement is recorded in the Register of Firms and the statement is filed by the Registrar as provided in Section 58. It is well settled principles of law that the registration of the firm is a condition precedent to the right to institute a suit of the nature and that the defect of non registration cannot be remedied by registration of the firm during the pendency of the suit. 10. So far as our High Court is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gence in the hands of this Court. According to him, the suit as framed is fully misconceived and not maintainable either in law or on the facts and circumstances of the case. On the date of the plaint viz., on 9.2.1987 the plaintiff firm was not registered under Section 69 of the Partnership Act and as such the above suit is not at all maintainable and the plaint is to be rejected in limine. 12. Mr. T.V. Ramanujam, placed reliance on the judgment in Bank of Koothattukulam v. Thomas A.I.R. 1955 Travancore-Cochin 155, a Division Bench of Travancore-Cochin High Court held as follows: Reading Sections 58 and 59 together a firm cannot be said to be registered when the statement prescribed by Section 58 and the required fee are sent to the Registrar of Joint Stock Companies. The registration of the firm is effected only when the entry of the statement is recorded in the Register of Firms and the statement is filed by the Registrar as provided in Section 59. It is necessary not only that the firm should be registered, but the person suing must be shown as a partner in the firm. And when it is found that on the date when the plaint is filed the second part of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant entries in the Register of Firms were not, in fact, partners, one new partner had come in and two minors had been admitted to the benefit of the partnership firm regarding which no notice was given to the Registrar of Firms. Thus, the current partners as on the date of the suit were not shown as partners in the Register of Firms. Thus, the Supreme Court dismissed the suit filed by the appellant on the question of maintainability in view of the provisions of Sub-section (2) of Section 69 of the Partnership Act by confirming the view taken by the trial court and the High Court. The Supreme Court further held that though the plaint was amended on a later date that cannot save the suit. The Bar under Section 69 can only be with reference to the plaintiff and not with reference to the persons who are sued as defendants. 13. Another recent decision of our High Court was also relied on by the learned Counsel for the defendants which is T. Savariraj Pillai v. R.S.S. Vastrad and Co. . Sathiadev, J. held that requirements of Section 69 of the Partnership Act are mandatory and the suit filed by a party without complying with the requirements under Section 69 of the Partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the two clauses in Sub-rule (3) of Order 23, Rule 1 of the Code of Civil Procedure, it is clear that the Legislature has advisedly used a distinctly different language. While Clause (a) refers to the pending suit which must fail by reason of some formal defect, Clause (b) refers to the suit to be instituted with the leave of the Court. If a matter fails under Clause (a), the Court is concerned only with the question whether the suit must fail by reason of a formal defect. On the other hand, if Clause (b) is invoked by a party, then the Court must address itself to the question whether there are sufficient grounds for allowing the party to institute a fresh suit for the same subject-matter of part thereof. Hence, in my view, it is not correct to say that sufficient grounds' should be read ejusdem generis with formal defect or that they should be analogous thereto. Sufficient grounds' would cover a wider field and not restricted to a 'formal defect' or a similar defect. However, when the question arises before an appellate Court after the adjudication of the matter on merits by one Court or two courts, the test will be whether the Court is justified in depriving t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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