You can follow the advice and procedures suggested by your lawyer which seems to be an effective counter objection besides you can even ask him to file a petition to reject the plaint under order vii rule 11 cpc on the same grounds.
Section 69 Subsection 1 The Indian Partnership Act 1932
Dear Sir(s) / Madam(s), I have a malified suit filed by my brothers and sister claiming share in my proprietorship firm for the last 40 years using a fabricated MOU on my letter head. though, the arbitration cases are dismissed with costs filed them, as a last resort my sister filed Original Suit which has reached the trial. My advocate had come with an technical point to rule the jurisdiction and maintainability of suit as per following: Section 69(1) in The Indian Partnership Act, 1932 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. Could you kindly provide your expert advises and give any citations / judgements on Section 69(1) in The Indian Partnership Act, 1932? Thanks in advance. Vinayak
Asked 5 months ago in Business Law
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6 Answers
Proprietorship is not a partnership firm and provisions of section 69 is not applicable to single proprietorship
- A sole proprietorship is a business owned and operated by one individual, offering complete control and liability, while a partnership involves two or more individuals who share ownership, profits, losses, and liabilities, requiring collaboration and shared decision-making.
- Hence, the said Section of the Indian Partnership Act will not applied in your case.
Dear Client,
Based on Section 69(1) of the Indian Partnership Act, 1932, your advocate's technical point challenges the jurisdiction and maintainability of the suit filed by your sister. This section stipulates that 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. Essentially, for a suit to be maintainable, the firm must be registered, and the suing party must be recognised as a partner in the firm's register.
Here are some relevant judgements and citations that might support your case:
1. Raptakos Brett & Co. Ltd. vs Ganesh Property (1998) 7 SCC 184: The Supreme Court held that an unregistered firm or its partners cannot enforce a right arising from a contract unless the firm is registered. This judgement reinforces the necessity of firm registration for maintaining such suits.
2. S V Chandra Pandian vs S V Sivalinga Nadar (1993) 1 SCC 589: This case emphasised that the bar under Section 69(1) of the Partnership Act applies to suits for enforcement of rights arising from contracts or conferred by the Act.
3. Shreeram Finance Corporation vs Yasin Khan (1989) 3 SCC 476: The Supreme Court in this case ruled that an unregistered partnership firm cannot file a suit to enforce contractual rights. This judgement underlines the importance of firm registration in maintaining a suit.
In light of these judgments, your advocate's argument based on Section 69(1) appears legally sound. It implies that if your sister is claiming a share in the proprietorship firm using a fabricated MOU and the firm is not registered, or she is not listed as a partner in the firm's register, the suit should not be maintainable.
You should present these citations and arguments before the court to contest the jurisdiction and maintainability of the suit effectively. Consulting with your advocate to ensure that these points are adequately argued and substantiated with relevant legal precedents will strengthen your case.
why you need judgments when the provision is so clear and unambiguous ?
if the firm is not registered with the registrar of firms, then no suit can be filed and if filed it would be not maintanable
please invoke order 7 rule 11 of cpc for rejection of the plaint as the statement contained in the plaint is barred by law
This is the right provision raised by your advocate. Also take support of sec 8 of Arbitration act and res judicata.
