[CASE NUMBER] -1- THE HIGH COURT OF MADHYA PRADESH [CASE NUMBER] (SMT. SUNITA JAIN Vs SMT. PADMA JAIN) Jabalpur, Dated: 06/09/2019 Shri [ENTITY], learned counsel for the review petitioner. Shri [ENTITY], learned counsel for the respondents. With the consent, finally heard. This review petition is directed against the order dated 25- 01-2019 and 14-12-2018 passed in [CASE NUMBER]. Learned counsel for the review petitioner raised three grounds to maintain this review petition: (i) no cause of action arose on the strength of which [CASE NUMBER] could have been entertained; (ii) the review petitioner is residing at 638, E-7/638, Arera Colony, Near Punjab National Bank, Bhopal (M.P.) and the respondents purposely given wrong address in [CASE NUMBER]. Since the notices were not served on her, she could not enter appearance and, therefore, [CASE NUMBER] suffers from procedural impropriety; and (iii) the partnership firm was not impleaded as a party respondent in the said AC. Thus, for want of impleadment of necessary/proper party, the said proceedings are vitiated and orders aforesaid need review. Prayer is opposed by Shri [ENTITY], learned counsel for the respondents by taking assistance of reply and judgment of Supreme Court in [PRECEDENT]. No other point is pressed by the parties. I have heard the parties at length and perused the record. The proceeding of [CASE NUMBER] shows that after considering the report of Registry, this Court opined that notices of the case were served on the respondent. Interestingly, present respondents have filed their [CASE NUMBER] -2- application in which present review petitioner is a party respondent. In this application filed under [SECTION] of the [ACT], interestingly the address of review petitioner is the same address, which is mentioned in [CASE NUMBER]. Admittedly, the review petitioner received notice in the said case based on the same address and entered appearance in the said matter by filing reply. Thus, I find substance in the argument of Shri [ENTITY] that the ground taken in Para 5 of the review petition is devoid of substance. This Court in [CASE NUMBER] opined that there exists a dispute, a dispute resolution clause and inaction in appointing Arbitrator. Thus, necessary conditions for invoking [SECTION] of the Act are satisfied. I find no reason or error apparent on record on the strength of which said finding can be disturbed. The last ground that in absence of impleadment of partnership firm, AC was not maintainable is concerned, this point is no more res integra. This Court recently decided [CASE NUMBER]). In this order this Court dealt with both the aspects namely (i) whether the partnership firm needs to be impleaded by name in a proceeding of this nature; and (ii) whether non impleadment will amount to non joinder of necessary/proper party. It is relevant to quote the relevant portion, which reads as under: "12. No doubt, if the necessary party has not been impleaded, the said defect falls within the ambit of procedural defect which can be gone into in the review jurisdiction. In this case, indisputably, review petitioner nos.1, 2 and 3 who are represented through certain partners were aware about the proceedings. They as a partner (even of M/s Krupa Associates) participated in the proceedings. This is a relevant fact which will assume importance in the light of judgments of Supreme Court. Before dealing with this issue, it is profitable to refer certain judgments on this point: "1. The Apex Court in [PRECEDENT] held as under:- "9. It was argued that the position of shareholders in a company is analogous to that of partners inter se. This analogy is wholly inaccurate. Partnership is merely an association of persons for carrying on the business of partnership and in law the firm name is a compendious method of describing the partners." 2. In [PRECEDENT] it was held as under:- "14. It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless, the general concept of partnership, firmly established in both systems of law, still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership. According to the principles of English jurisprudence, which we have adopted, for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James L.J. in Ex parte Corbett, In re Shand [(1880) LR 14 Ch 122, 126] . In these circumstances to import the definition of the word "person" occurring in [SECTION] of the [ACT] into [SECTION] of the [ACT] will, according to lawyers, English or Indian, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into partnership with another firm or individuals." 3. Similarly, in [PRECEDENT] held as under:- "9. [CASE NUMBER] -4-
[SECTION] is a general provision. [SECTION], however, is confined to a suit instituted by partners in the name of the firm. It is clear from this rule that although the suit is filed in the name of the firm a disclosure has to be made, on demand in writing by or on behalf of any defendant, of names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. The provisions of [SECTION] would indicate that although the suit is filed in the name of a firm, it is nonetheless a suit by all the partners of the firm because if a disclosure of the names of the partners is asked for by any defendant, on such disclosure, the suit shall proceed as if the partners had been named as plaintiffs in the suit, even though the proceedings shall nevertheless be continued in the name of the firm. It is clear, therefore, that the provisions of [SECTION], [SECTION] and [SECTION] are enabling provisions to permit several persons who are doing business as partners to sue or be sued in the name of the firm. [SECTION] would not have been in the form it is if the suit instituted in the name of the firm was not regarded as, in fact, a suit by the partners of the firm. The provisions of these rules of [SECTION], being enabling provisions, do not prevent the partners of a firm from suing or being sued in their individual names."
4. Reference may be made to [PRECEDENT] held as under:-
"5. Here the first thing that we must grasp is that a firm is not a legal person even though it has some attributes of personality. Partnership is a certain relation between persons, the product of agreement to share the profits of a business. "Firm" is a collective noun, a compendious expression to designate an entity, not a person. In [ACT] a firm is a unit of assessment, by special provisions, but is not a full person.
15. Is the firm a person or a mere shorthand name for a collection of persons, commercially convenient but not legally recognised? Under [SECTION] of the [ACT] it is not a person, but a relationship among persons. [ENTITY] on Partnership [ 12th Edn., p. 28, Sweet & Maxwell] , has this:
"The firm is not recognised by English lawyers as distinct from the members composing it. In taking partnership accounts and in administering partnership assets, courts have to some extent adopted the mercantile view, and actions may now, speaking generally, be brought by or against partners in the name of their firm, but, speaking generally, the firm as such has no legal recognition. The law, ignoring the firm, looks to the partners composing it; any change amongst them destroys the identity of the firm; what is called the property of the firm is their property, and what are called the debts and liabilities of the firm are their debts and their liabilities. In point of law, a partner may be the debtor or the creditor of his co-partners, but he cannot be either debtor or creditor of the firm of which he is himself a member, nor can he be employed by his firm, for a man cannot be his own employer."
"It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless, the general concept of a partnership, firmly established in both systems of law, still is that a firm is not an entity or 'person' in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm.
17. The necessary inference from the premise that a partnership is only a collective of separate persons and not a legal person in itself leads to the further conclusion that the salary stipulated to be paid to a partner from the firm is in reality a mode of division of the firm's profits, no person being his own servant in law since a contract of service postulates two different persons."
13. In view of aforesaid judgments, it is clear like noon day that even if partners in their individual capacity have participated in the main proceedings, that is sufficient because partnership firm does not have any legal entity or personality. The ancillary question is whether such non- impleadment of firm will cause any dent to the main order.
In other words, can it be said that proceedings are vitiated because of non-joinder of necessary party. This point is also no more res integra in view of judgments passed by the Punjab and Haryana High Court in the case of [PRECEDENT] and judgment passed by this Court in the case of [PRECEDENT]. The relevant paragraphs read thus:
The High Court in [ENTITY]) held as under:-
"3. The only objection raised in the Regular Second Appeal is that the partnership firm was not a party defendant to the suit and that it is not proved that the partnership firm was registered. Indisputably, the parties to the suit are partners of the firm. The constitution of the partnership firm is not denied. The objection that a suit, against an unregistered firm or that the firm having been not made a party to the suit is not maintainable, cannot be sustained for the reason that the partnership is admitted. The partnership firm is a compendious name for the partners constituting it. The partners are parties to the suit. Non-impleading of the firm does not render the suit bad for non- joinder of parties.
This Court in [PRECEDENT] held as under:-
"7. After having heard learned counsel for the parties at length, in the considered opinion of this Court, there is a force in the submission of Shri [ENTITY]. The partnership firm which is duly registered has no personality of its own. It is compendium of partners. Thus, a firm is an association of individuals and the firm name is only a collective name of those individuals who constitute the firm."
14. In the light of the aforesaid analysis, in the considered opinion of this Court it cannot be said that non- impleadment of review petitioner no.1 herein in [CASE NUMBER] will amount to non-joinder of necessary party. At the cost of repetition, review petitioner no.1 was already represented by Shri [ENTITY] who had participated in the main proceedings and also filed affidavits in [CASE NUMBER].
15. Thus, I am unable to hold that order passed in [CASE NUMBER] suffers from any procedural impropriety or flaw of non-joinder of necessary party."
This recent order draws curtains on the aforesaid aspects. In the light of this analysis, I am unable to hold that any case is made out under review jurisdiction.
Review petition fails and is hereby dismissed.
([ENTITY] ) Judge mohsin Date: 2019.09.07 11:35:12 +05'30'