Jagdish V. Gursahani (Self) 13 February 2011

Maintainability of CIVIL suit

To,

The Lawyers Club India.

Respectfully Submitted

I the undersigned had entered into a partnership deed with say Mr.X in Nov. 2003 and lodged the same for registration with the registrar of firm,Bombay, for the development of land. Till date the registration of the firm could not be registered due to pending compliances of the registrar of the firm. The registration fee of Rs. 300/- with acknowledgement was given to me by the office of the registrar.Since 2004 till 2009, Mr. X has entered into various agreements with other builders/developers and Mr. X has collected crores of Rs. from them without my concent. The Land contribution is given by Mr. X as per partnership deed for which Mr. X has collected some money contribution from me and accordingly the deed was entered ,Signed and then Notarised with No.

I had filed Suit in City Civil Court at Bombay along with Notice of Motion in January 2010 seeking injection against Mr. X for creating 3^rd party rights. No adinterim relief was given to me and noe the Notice of Motion is kept for final hearing for interim relief on 18.2.2011.

The Collector of Stamps,Bombay, issued Demand Notice of payment of Stamp Duty of Rs. 2 crores in May 2009, much prior to filing of suit by me in Jan 2010, towards the land which Mr. X has contributed in our partnership deed dt. Nov,2003. This fact of Demand Notice of Rs. 2 crores was never brought before me by Mr. X and kept in dark for his personal gain. After filing suit in Jan,2010, I some how managed to get the copy of said demand notice of Rs. 2 Crores recently and has annexed in the compliation of documents along with other illegal agreements which Mr. X has made at my back. The payment of stamp duty made effective by the State of Maharashtra under Stamp Duty Act eff. 1.5.1997.

Now Mr. X has filed application under sec. 9-A of CPC on the point of jurisdiction of the court to hear my Notice of Motion & Suit on the grounds that the firm is not registered with the registrar of the firm,Bombay, and has prayed the Court to dismiss my case. Mr. X has refused to pay Rs. 2 Crores Stamp Duty and now taking plea of non registration of the firm for maintainability & jurisdiction of the Court.

In above circumstances I the undersigned request your goodself to pl. help me in putting defensive arguments with supporting case laws under the Indian Partnership Act/CPC etc. So that I can protect my losses/interest in my pending case which is due for final hearing of Notice of Motion on 18.2.2011. I have filed the suit in my individual capacity against the other partner. The Firm is not a party to the pending suit.

Your early action in the above clarification will be highly appreciated.

Thanking you,

Yours faithfully, Jagdish V.G.

E mail jgursahani@rediffmail.com. Cell No. 0981 905 4940.

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1 Replies

Shailendra prasad singh (Lawyer) 18 February 2011

A bare reading of the provisions of Section 69 of the Partnership Act envisages that in a suit based on partnership firm the Court gets jurisdiction only if the firm is registered under the Partnership Act meaning thereby that registration of a firm is condition precedent to derive right to institute a suit and the Court gets jurisdiction to proceed with the suit only when the condition precedent enumerated under Section 69 of the Act is fulfilled. This proposition of law has no two opinion. In the case of Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 336, their Lordships of the Apex Court held that Section 69 is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling under the ambit of Section 69.

please see this link : https://www.indiankanoon.org/doc/295811/