M/S Tee & Tee Healthcare And Others vs Nand Lal Sharma And Another

Bipin Chander Negi, J

The present petition has been preferred against the impugned order dated 16.11.2021, whereby an application preferred under Order 7 Rule 11(d) read with Section 151 CPC for rejection of the plaint on the ground that the suit in the case at hand filed by the respondents/plaintiffs is barred under the provisions of Section 69 of the Indian Partnership Act, 1932 has been dismissed.

Heard counsel for the parties. Perused the impugned order and the documents appended alongwith.

From a copy of the plaint appended alongwith, it is evident that the following reliefs are being claimed in the suit. The same are being detailed here-in-below for a ready reference:-

a) A decree for declaration to the effect that the letter dated 16.1.2014 written by defendants No. 2 and 3 to the plaintiff expelling him from the defendant No. I and the subsequent partnership deed dated 16.1.2014 registered on 18.1.2014 in the office of Sub Registrar, S lan at Registration No.17, thereby introducing/adding the defendant No. 4 as a par ner in defendant No. 1 firm is totally wrong, illegal, null and void abinitio, against the basic and settled principles of law and the Indian Pa tnership Act, 1932 and that the defendant No. 4 has no rights, title or interests in the defendant No. 1;

b). A decree for declaration to the effect that the plaintiff has rights, title and interests in defendant No. 1 to the extent of 1/3rd share as per partnership deed dated 23.3.2012;

c) A decree for rendition of accounts directing the defendants No. I to 3 to render/tender real, true and correct accounts of defendant No. 1 before this Hon'ble court with respect to all the transactions, assets, properties etc. of defendant No. 1 and to give the due 1/3rd share of plaintiff in the same to him;

d) A decree for permanent prohibitory injunction restraining the defendants from selling/disposing of, transferring and removing the assets, raw material, movable/immovable properties, fixtures, machinery etc. of defendant No. 1 and from tampering with the records of partnership firm/defendant No. 1 and from causing any type of damage, loss etc. to the property, good will and assets of the defendant No. 1, dealing with the bank accounts of defendant No. 1, dealing with any customer, company, government/semi government departments etc. and the defendant No. 4 may also be restrained from making any sort of interference in the peaceful running of the business of defendant No. 1 and causing any type of damage to its property, etc. on the basis of illegal document dated 16.1.2014 registered on 18.1.2014 at Registration No. 17 either by themselves or through their agents, servants, assigns, family members, attorneys whosoever in any manner whatsoever;

e) the costs of the suit;

It is an admitted fact that the partnership concern in the case at hand is an un-registered partnership. The respondent No.1/plaintiff was a partner in he firm in terms of the partnership deed dated 23.3.2012. The espondent No.1/plaintiff is aggrieved by his expulsion dated 16.1.2014, qua which a declaration is being sought and the subsequent partnership deed dated 16.1.2014, whereby proforma respondent No.2/defendant No.4 has been introduced as a new partner.

In the aforesaid backdrop, statutory remedies of declaration and injunction under the Specific Relief Act and consequential relief of rendition of accounts could not have been made by a person suing as a partner, and is, therefore not debarred under the provisions of Section 69(1) of the Indian Partnership Act. Furthermore what was in fact being prayed for by the present respondent No.1/plaintiff was a declaration of the existence of a contract between the parties. Hence, it cannot be said that the suit so filed by respondent No.1/plaintiff was filed to enforce a right arising from a contract. In the aforesaid context, the trial Court has correctly placed reliance upon judgment reported as (2004) 13 SCC 750 titled as Mukund Balkrishna Kulkarni vs. Kulkarni Powder Metallurgical Industries and another.

Relevant extract whereof is being reproduced here-in-below:-

“8. As far as the third question is concerned, that, no doubt, is a question of law. But the conclusion arrived at by the igh Court is fallacious. Section 69(1) of the 1932 Act reads:

"69. (1) No suit to enf rce 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 pe son alleged to be or to have been a pa tner in the firm unless the firm is registered and the person suing is or has been shown in the Register of h Firms as a partner in the firm."

The sub-section contains embargos which must coexist before a plaintiff can be non-suited under that sub-section. The two embargos relevant for this case are: (1) that the suit should be filed by person "suing as a partner in a firm" and (2) that the suit must be to enforce a right arising from a contract. The submission of the respondents which was accepted by the High Court was that the prayer of the appellant, namely, for a declaration of the existence of the partnership and the share between the parties was a suit to enforce a right under a contract against the firm. A prayer for such declaration could not be said to be made by person suing as a partner. It was a prayer to be a partner and is therefore not debarred under the provisions of Section 69(1), Furthermore, what was in fact being prayed for by the appellant was a declaration of the existence of a contract between the parties. That could not be said to be a suit to enforce a right arising from a contract.”

In view thereof, I see no reason to interfere with the well reasoned order passed by the trial Court. Accordingly, the petition is dismissed. Pending applications, if any, also stand disposed of.

Parties are directed to appear before the trial Court on 20.11.2025.