Order 7 rule 11 of cpc
R.K. Misro
(Querist) 07 August 2011
This query is : Resolved
under order 7 rule 11 of CPC should the plaint be rejected when hit by section 69 of the Indian partnership act when the plaintiff firm is not registered
Guest
(Expert) 07 August 2011
yes it is hit
Section 69 in The Indian Partnership Act, 1932
69. Effect of non- registration.
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person
alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) 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.
(3) The provisions of sub- sections (1) and (2) shall apply also to claim of set- off or other proceeding to enforce a right arising from contract, but shall not affect-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency- towns Insolvency Act, 1909 , (2 of 1909 ). or the Provincial Insolvency Act, 1920 , (5 of 1920 ). to realise the property of an insolvent partner.
(4) This section shall not apply-
(a) to firms or to partners in firms which have no place of business in 1[ the territories to which this Act extends], or whose places of business in 2[ the said territories] are situated in areas to which, by notification under 3[ section 56], this Chapter does not apply, or
(b) to any suit or claim of set- off not exceeding one hundred rupees in value which, in the Presidency- towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 , (15 of 1882 ). or, outside the Presidency- towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 , (9 of 1887 ). or to any pro- ceeding in execution or other proceeding incidental to or arising from any such suit or claim.
R.Ramachandran
(Expert) 07 August 2011
First tell the facts. Who filed the suit against whom and what was pleaded in the plaint?
Order 7 Rule 11 will come into play only if the averments in the plaint are barred by law and not otherwise.
Thus, before confirming whether O 7 R 11 would apply or not, it is very much necessary to know about the pleadings in the plaint.
Kirti Kar Tripathi
(Expert) 07 August 2011
I agree with Mr. Ramchandran, question of "barred by law" can be decided on the basis of pleadings of the plaint only. Effect of non registration of the partnership may be a ground for dismissal of the suit but it can not be regarded as ground for rejection of the plaint unless pleadings are not seen.
M/s. Y-not legal services
(Expert) 07 August 2011
Yes. Am agree with experts. Section 69 of the partnerships act not an issue. The pleading is important thing here..
Swami Sadashiva Brahmendra Sar
(Expert) 08 August 2011
I think , the query is clear.
Learned friend says that "the plaint is hit by s. 69". Hence, it is liable to be rejected. However, the courts in our country are not serious in deciding preliminary issues first and normally they decide it together with main issues.
R.Ramachandran
(Expert) 08 August 2011
Dear Dr. Tripathi,
I am sorry. It is one thing that the querist says that the plaint is hit by Sec. 69 and it is quite another that the plaintiff himself saying something in his plaint that leads to that effect. If the plaint does not reveal something which will clearly show that the suit is barred by law, Order 7 Rule 11 would not arise.
Then it becomes part of the argument to say why the plaint is not maintainable. If the court gets convinced about the objection and decides to dismiss the plaint, it is not under Order 7 Rule 11 but due to the objection from the defendant.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 August 2011
Instead of 7x11 provision request for framing a pre issue for maintainability of suit and apply for its trial first.
