1. Draft amendment is allowed.
2. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original plaintiffs challenging the impugned judgement and order passed by learned Appellate Court – learned 2nd Additional District Judge, Bharuch dated 29/12/2011 in Regular Civil Appeal No.197 of 2005, by which, learned Appellate Court has allowed the said appeal preferred by original defendant and has quashed and set aside the judgement and decree dated 24/10/2003 passed by learned Trial Court in Special Civil Suit No.9 of 1993.
3. Facts leading to the present petition, in nutshell, are as under:
That the appellants herein – original plaintiffs have instituted Special Civil Suit No.9 of 1993 against the defendants in the court of learned Civil Judge (S.D.), Bharuch for compensation of Rs.2,31,560/- by way of damages for breach of contract entered into between the parties for installation of Lift in the Cinema run by the plaintiffs. It is the case on behalf of the plaintiffs that they entered into the contract with the defendants for installation of Lift in the Cinema run by the plaintiffs and Rs.18,000/- was paid by way of advance. It was further contended that under the contract, Lift was to be installed within a period of 20 – 32 weeks. However, the defendants failed to install the same and, therefore, the plaintiffs instituted the aforesaid Suit for enforcement of the said contract as well as claiming compensation/damages, which should be inclusive of Rs.18,000/-, which was paid to the defendants by way of advance payment.
That the said Suit was resisted by the defendants by filing written statement. It was specific case on behalf of the defendants that as such plaintiff No.1 – Partnership firm is not registered Partnership firm and, therefore, considering Section 69(2) of the Indian Partnership Act, the Suit is not maintainable. That the learned Trial Court by impugned judgement and decree dated 24/10/2003 partly allowed the said Suit by holding that the plaintiffs are entitled for compensation of Rs.50,000/- with 10% interest per annum. That the learned Trial Court also held that there was valid contract between the parties.
4. Being aggrieved by and dissatisfied with the judgement and decree dated 24/10/2003 passed by learned Trial Court in Special Civil Suit No.9 of 1993, the defendants preferred First Appeal before this Court. However in view of the amendment in the Gujarat Civil Courts Act, 2005, the said appeal came to be transferred to the Court of learned District Court, Bharuch, which was numbered as Regular Civil Appeal No.197 of 2005. It appears that in the meantime, defendants deposited an amount of Rs.50,000/- with 10% interest as per judgement and decree passed by the learned Trial Court, which came to be withdrawn by the plaintiffs. That thereafter, the aforesaid Regular Civil Appeal No.197 of 2005 came to be heard by learned 2nd Additional District Judge, Bharuch, who by impugned judgement and order dated 29/12/2011 has allowed the said appeal and has quashed and set aside the judgement and decree passed by the learned Trial Court and consequently has directed the plaintiffs to deposit an amount of Rs.1,13,685/- in the Court, which the defendants have deposited pursuant to the judgement and decree passed by the learned Trial Court and which the plaintiffs withdrew the same, with 10% interest from the date of withdrawal.
Being aggrieved by and dissatisfied with the judgement and order passed by learned Appellate Court in allowing the said appeal and quashing and setting aside the judgement and decree passed by the learned Trial Court, the appellants herein – original plaintiffs have preferred the present Second Appeal u/s.100 of the Code of Civil Procedure.
5. At the outset, it is required to be noted that the present Second Appeal is filed under Section 100 of the Code of Civil Procedure and unless there is any substantial question of law arises, the Second Appeal is not required to be entertained. Learned advocate appearing on behalf of the appellants is not in a position to show any substantial question of law arises in the present Second Appeal. However, he has submitted that both the Courts below have materially erred in holding that the Suit is barred u/s.69(2) of the Indian Partnership Act. It is submitted that bar u/s.69(2) of the Indian Partnership Act would be applicable only in a case where the Suit for enforcement of the contract is filed by third party. It is submitted that when the defendant was party to the contract for installation of Lift in the Cinema run by the plaintiffs, it cannot be said to be third party. Therefore, it is submitted that learned Appellate Court has materially erred in holding that the Suit was barred u/s.69(2) of the Indian Partnership Act as plaintiff No.1 – Partnership Firm was unregistered Partnership Firm. It is further submitted that as such plaintiff No.1 - Partnership firm was registered with the Registrar of Partnership Firms. However, the plaintiffs could not produce the registration Certificate. Under the circumstances, it is requested to admit/ allow the present Second Appeal.
6. The present Second Appeal is opposed by Mr.Hardik Shah, learned advocate appearing on behalf of the respondent herein – original defendant. It is submitted that admittedly the plaintiffs have not produced any registration Certificate to show that plaintiff No.1 was registered with the Registrar of Partnership Firms. It is submitted that therefore, considering Section 69(2) of the Indian Partnership Act, when the Appellate Court has held that the suit filed by the plaintiff – unregistered partnership firm for enforcement of the contract is not maintainable, it cannot be said that the Appellate Court has committed any error and/or illegality in passing the impugned judgement and order, which calls for interference of this Court in exercise of powers u/s.100 of the Code of Civil Procedure. Therefore, it is requested to dismiss the present Second Appeal.
7. Heard learned advocates appearing on behalf of the respective parties at length and considered the judgement and decree passed by learned Trial Court as well as impugned judgement and order passed by the learned Appellate Court.
At the outset, it is required to be noted that the plaintiffs instituted the Suit for damages/compensation of Rs.2,31,560/- for breach of contract between the parties for installment of the Lift in the Cinema run by the plaintiffs. It was specific case on behalf of the defendant that plaintiff No.1 was unregistered Partnership Firm and there was a bar to file the suit by unregistered partnership firm as provided u/s.69(2) of the Indian Partnership Act. Though it was the specific case on behalf of the plaintiffs that plaintiff No.1 is registered partnership firm, no document was produced to prove the same. Therefore, in absence of any cogent evidence and document that plaintiff No.1 was registered partnership firm and registered with the Registrar of Partnership Firms, it is to be accepted that plaintiff No.1 was unregistered partnership firm. Under the circumstances, there would be a bar to file the suit by unregistered Partnership Firm, as provided u/s.69(2) of the Indian Partnership Act.
8. Contention on behalf of the plaintiffs that considering Section 69(2) of the Indian partnership Act, a Suit for enforcement of the contract by unregistered partnership firm would not be maintainable against third party and defendant cannot be said to be third party is concerned, the same has no substance. Third party as mentioned in Section 69(2) of the Indian partnership Act, is to be considered as third party to the partnership firm and not third party to the contract. Considering the aforesaid facts and circumstances of the case and considering Section 69(2) of the Indian Partnership Act, when learned Appellate Court has held that the suit filed by plaintiffs is barred, it cannot be said that the Appellate Court has committed any error and/or illegality in allowing the appeal and dismissing the judgement and decree passed by the learned Trial Court. It is to be noted that learned Trial Court awarded compensation of Rs.50,000/- with 10% interest, however nothing has been discussed how he has arrived at compensation of Rs.50,000/-. There is no discussion at all how he arrived at compensation of Rs.50,000/-. Even no evidence has been adduced by the plaintiffs with respect to compensation. Under the circumstances, learned Appellate Court has not committed any error and/or illegality in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned Trial Court.
9. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed.
10. In view of the dismissal of the main Second Appeal, no order in Civil Application No.2232 of 2012 and the same is also accordingly dismissed.
[M.R.SHAH,J] *dipti