1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1433 OF 2009 M/s. Navjivan Kagdi and Co. & Anr. ... Appellants/Plaintiffs Versus Dhiren S.Doshi & Ors. ... Respondents/Defendants Mr. B.S.Nayak, Advocate, fr the appellants. Mr. P.G.Lad, Advocate, for respondent No.3. CORAM: J.H.BHATIA,J. DATE : 6th November, 2009. P.C. 1. Heard the learned Counsel for the parties. 2. The appellants before this Court are the original plaintiffs. The plaintiff No.1 is a partnership firm, while plaintiff No.2 – Rajesh and respondent No.4 – Jasmine are the partners of the firm. The plaintiff-firm had taken on rent 2 the suit premises from the landlord – Siddharth Zaveri, who was original defendant No.4, but who was deleted from the array of parties in the plaint. In 1992, the respondent N.4, who was impleaded as defendant No.4 after deleting the name of the original landlord, surrendered the suit premises to the landlord. Defendant Nos. 1 to 3 claimed possession of the Cabin Nos. 18A, 18B and 9A out of the suit premises as they were inducted in the property by the landlord. The plaintiffs filed the suit for perpetual injunction restraining the defendants from causing interference in possession of the plaintiffs over the suit Cabins Nos. 9A, 9B, 12, 18A and 18B and from dispossessing the plaintiffs from the premises without following due process of law. The defendants challenged the maintainability of the suit on the ground that the plaintiff-firm was not registered as per law. The learned trial Court, after hearing the parties, dismissed the suit holding that the suit is not maintainable for want of registration under Section 69(2) of the Indian Partnership Act. Hence, this Appeal by the original plaintiffs. 3. Section 69 reads as follows :- “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 3 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.” From Section 69(2) of the Partnership Act, it is clear that 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. From the pleading of the plaintiffs it is clear that the plaintiff firm had entered into a contract with the landlord and as per that contract, the plaintiff firm was inducted as a tenant in the suit premises. It is also pleaded that the defendant No. 4, who is one of the partners of the plaintiff-firm, without consent of the other partners, surrendered the lease in favour of the landlord. It is contended that he had played fraud upon the firm as well as the other partners while surrendering the leasehold rights in favour of the landlord. The plaintiffs claimed right to remain in possession in the suit premises on the basis of the contract of lease between the plaintiffs and the landlord. The defendant Nos. 1 to 3 claimed the 4 right to possess the property as they were allegedly inducted in the suit property by the landlord after the leasehold rights of the firm were surrendered by the defendant No.4 in favour of the landlord. Section 18 of the Partnership Act declares that subject to the provisions of the Act, a partner is the agent of the firm for the purpose of the business of the firm. Under Section 19, a partner has certain implied authorities as agent of the firm and they include the authority to compromise or relinquish any claim or portion of a claim by the firm as well as to acquire any immovable property on behalf of the firm or transfer immovable property belonging to the firm. Thus, under Section 19 of the Partnership Act, the defendant No.4, being a partner and as such agent of the firm, had an implied authority even to surrender the leasehold rights of the firm in favour of the landlord. The landlord having accepted the surrender, inducted defendant Nos. 1, 2 and 3 in the said property. Therefore, the defendants Nos. 1 to 3 came in possession of the suit property on the basis of legal right created by landlord in their favour and that was done by the landlord only after the defendant no.4 as a partner of the firm had surrendered the leasehold rights. 4. The plaintiff-firm claimed leasehold rights over the suit property on the basis of a contract entered into between the firm and the landlord. The plaintiffs, for reasons best known to them, deleted the name of the landlord, who 5 was original defendant No.4 in the plaint. It appears that this was done intentionally only to make a show that the defendant Nos. 1 to 3 were trying to take unlawful possession of the property while they have no contract with the plaintiffs. If the defendant No.4 would be a party to the suit, naturally, the claim of the plaintiffs would be directly based on the contract between the plaintiffs and the landlord. In my considered opinion, the nature of the suit will not change merely because the landlord has been deleted from the array of the defendants. From this it is clear that the plaintiffs have filed the suit seeking enforcement of rights based on a contract with the landlord, through whom defendant Nos. 1 to 3 also claim the property. It is contended by the learned Counsel for the plaintiffs/appellants that plaintiff No.1 firm was registered in the year 1942 and from time to time, the partners of the firm changed. In 1992 also, some of the partners retired and the plaintiff No.2 - Rajesh and defendant No.4 – Jasmine entered into an agreement and continued the partnership business. However, admittedly, the name of the plaintiff No.2, who filed the suit for and on behalf of the firm as well as himself, was not shown in the Register of Firms as a partner in the firm in the year 1996, when the suit was filed, Even till the suit was dismissed on 14.8.2009, his name was not shown as a partner of the firm in the Register of Firms maintained by the Registrar. Section 69(2), as noted above, clearly provides that no suit to enforce a right arising from a contract 6 shall be instituted by or on behalf of a firm against any third party unless the firm is registered and also the persons suing are or have been shown in the Register of firms as partners in the said firm. Even though the partnership firm was registered, the plaintiff No.2, who filed the suit for and on behalf of the firm, was never shown in the Register of Firms as a partner in the firm. Therefore, the suit could not be instituted and is clearly hit by the provisions of Section 69(2) of the Partnership Act. 5. The learned Counsel for the plaintiffs/appellants placed reliance upon M/s. Haldiram Bhujiawala and another vs. M/s. Anand Kumar Deepak Kumar and another AIR 2000 SC 1287 in support of his contention that a suit for perpetual injunction to restrain the defendants from interfering in possession of the plaintiffs over the property is not barred under Section 69(2). In fact, in that matter, the defendant was trying to pass-off his goods as those of the plaintiffs by using the plaintiffs’ trade mark. The suit was not based on enforcement of any contract between the plaintiffs and the defendant and, therefore, it was held that the suit for perpetual injunction against the defendant was not barred under Section 69(2). That authority is not applicable to the facts of the present case. The present case is clearly based on a contract of lease between the plaintiff-firm and the landlord, who was deleted from the array of 7 the defendants by the plaintiffs. Therefore, the trial Court was justified in holding that the suit is barred under Section 69(2). Therefore, I do not find any substance in the present Appeal. 6. For the aforesaid reasons, the Appeal stands dismissed. 7. At this stage, the learned Counsel for the appellants, on instructions from his client, seeks eight weeks’ time to challenge this order before the Supreme Court and he makes a request that the possession of the plaintiffs over the suit property be protected during the said period on the ground that the trial Court had also granted injunction in favour of the plaintiffs after getting the Commissioner’s report. The Commissioner’s report reveals that the Cabins Nos. 12, 18A and 18B were in physical possession of the plaintiffs and, therefore, the defendant Nos. 2 and 4 were restrained from dispossessing the plaintiffs from the said Cabins. However, it appears that the Cabins Nos. 9A and 9B were in possession of the defendant No.3 and the trial Court had only directed to maintain status quo. In view of this, the interim relief granted in favour of the plaintiffs in respect of Cabins Nos. 12, 18A and 18B shall continue to be in force for further eight weeks. 8 8. As the Appeal itself is dismissed, C.A. No.3539 of 2009 does not survive and stands disposed of accordingly. (J.H.BHATIA,J)