Ramprasad vs Dungarsibhai

Nevaskar, J.—This, revision petition arises out of a suit brought by Dungarsibhai, Bababhai and Gopaldas for the: recovery of a sum of its. 4587/- on the basis of transactions in cotton and cotton seeds which took place between the parties in Samvat Year 2002.

Plaintiffs alleged that they dealt in the name of Firm Suvodhchandra Bababhai and Company from .Samvat Year 2001 to 2005 and the claim in suit .arises in respect of the transactions of that firm.

One, of the points raised on behalf of the Defendants was that the Plaintiffs being the partners of a Firm the suit was not maintainable as the firm is act registered in view of the provisions of Section 69(2) Of the Partnership Act.

The suit was filed on 16-7-1951. At that time the Indian Partnership Act had come into force. Prior to the coming into force of the Indian Partnership Act, there was the Madhya Bharat Partnership Act, which contained provisions similar to Section 69 of the Indian Partnership Act. The question which was therefore before the trial Court for consideration was as to whether the present suit was barred by reason of the provisions of Section 69(2) of the Indian Partnership Act.

This was issue No. 6 among issues fixed by the Court. .This issue was tried as a preliminary issue and the Court an consideration of the facts and circumstances surrounding the transaction in suit came to the conclusion that the suit is maintainable. He held that Section 69(2) will have no application as the present claim is for recovery of assets of a dissolved firm.

He relied in this connection on the decision reported in Appaya Nijlingappa v. Subarao Babaji AIR 1938 Bom l08 (A). He further held that inasmuch, as the right for the enforcement of which the present suit is filed had accrued to the Plaintiffs in .Samvat Year 2002 when the Partnership Act was not in force, He was of opinion that although the suit had been filed subsequent to the coining into force of the Partnership Act, such a suit is saved by Section 74 of the Act.

The learned trial judge in this connection held that although there is some conflict of authorities on the question as to whether Section 74 will save suits. filed after the commencement of the Act, still preponderance of the authorities is in favour of the view that such suits are not affected by the non-registration of the firm. He therefore decided the issue in favour of the Plaintiffs.

The present revision petition is filed against that decision.

Mr. Chitale who appears for the Petitioner wanted to urge before me on the second out of the two aspects dealt with by the lower Court. He wanted to suggest that although there is prepounderance of the authorities in favour of the view taken by the lower Court on this second aspect yet the reasoning employed in the other view is moro logical and ought to be accepted.

In the first place in view of the fact that- the present suit is for the recovery of the dues of a dissolved firm the second aspect becomes immaterial. But even assuming that it can arise still the matter need not be gone into in this revision petition. It cannot be said that where there are two conflicting views on a question of law and die lower Court has accepted the view which was based on the view of the majority of the High Courts, there is any illegality or material irregularity in the exercise of the jurisdiction by the lower Court.

In my opinion this is not a fit case for interference in revision.

The application is therefore dismissed with costs.