:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO. 851 OF 2008 COMPANY APPLICATION NO. 851 OF 2008 COMPANY APPLICATION NO. 851 OF 2008 IN IN IN COMPANY PETITION NO. 225 OF 1992 COMPANY PETITION NO. 225 OF 1992 COMPANY PETITION NO. 225 OF 1992 Pravinchandra J. Patel & Anr. ..Applicants versus M/s Gitaneel Builders (India) & Ors. ..Respondents Mr. R. D. Soni i/b. Ram & Co. for the Applicants. Mr. Mahendra Gilani i/b. Law Charter for the Respondent Nos. 2, 5, 6, 7, 10 and 11. Mr. Ravi Kadam, Advocate General, Mr. Birendra Saraf and Mr. Arun Siwach i/b. A. Shroff & Co. for the Respondent No. 22. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 28TH AUGUST, 2008. DATE : 28TH AUGUST, 2008. DATE : 28TH AUGUST, 2008. P.C. P.C. P.C. . Heard. 2. This is an application for setting aside the dismissal in default of Company Petition No. 225 of 1992 by the Order of this Court dated 21.11.2007. 3. By that Order, the Court directed :2: reconstruction of the record in about 370 cases and passed a conditional order that all the matters shall stand dismissed if the steps for reconstruction of the record and proceedings are not taken within four weeks from that date. Simultaneously, the Court directed that matters from Item Nos. 377 to 434 shall come up before the Court on 26.11.2007 in the lots of 10. At the relevant time, the applicants were represented by one Advocate Mr. M. A. Saiyed. 4. From the Affidavit in Support filed by the applicants, it appears that the clerk of that Advocate one Mangesh Gosavi, inadvertently informed the Advocate that the matters were adjourned to 26.11.2007 relying on the second part of the Order, which related only to Sr. Nos. 377 to 434. As a result, apparently, it was not noticed that the matter stood dismissed on 20.12.2007. It is only after enquiries that the applicants moved this application for restoration on 23.5.2008. 5. The learned counsel for the respondents submitted that the application for restoration itself is not tenable in view of Section 69 of the Indian Partnership Act as amended for the State of :3: Maharashtra, which reads as follows :- "69. Effect of non-registration.- Effect of non-registration.- 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. Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of the firm or to realise the property of 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. (2-A) No suit to enforce any right 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 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: Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of a dissolved firm or to realise the property of a dissolved firm. :4: (3) The provisions of sub-sections (1), (2) and (2-A) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,- (a) the firms constituted for a duration upto six months or with a capital upto two thousand rupees; or (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner. Since the applicants are partners of unregistered firm and since they are not shown in the Register of Firms as partners, according to the respondents, the same bar would apply to an application for restoration. 6. On a plain construction of Section 69, it is clear that the bar applies to "the suit to enforce any right for the dissolution of a firm...." This bar is not intended to apply to incidental applications made in the proceeding, such as application for restoration. 7. It was further contended on behalf of the respondents that the applicants have not been diligent in pursuing the matter. The affidavit of :5: the applicants on record, records that the parties are not residents of Mumbai. The applicant No. 1 stays at Jalgaon which is at a distance of 425 kms. from Mumbai and the applicant No. 2 stays at Rajkot. It appears that there is no negligence on their part since they had engaged an Advocate and duly instructed him in the matter after the earlier Advocate had withdrawn. 8. In the circumstances, there is no reason why the application for restoration should not be allowed even if the parties have taken some steps in the meantime. Application for restoration is allowed and Company Petition No. 225 of 1992 is restored to file. 9. Application is disposed of. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)