M/S RAPTAKOS BRETT AND CO. LTD. versus GANESH PROPERTY

Citation: [1998] SUPP. 1 S.C.R. 485 · Decided: 08-09-1998 · Supreme Court of India · Bench: S.B. MAJMUDAR · Disposal: Dismissed

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Judgment (excerpt)

MIS RAPTAKOS BRETT AND CO. LTD. 
v. 
GANESH PROPERTY 
SEPTEMBER 8, 1998 
[S.B. MA.IMUDAR AND M. JAGANNADHA RAO, JJ.) 
Pwtnmhip Act, 1932-Section 69(2}-Suit by partnership Jinn-Effect 
of 11011 registration-Suit mu.1·1 be held to be i11compete11t from the i11cep-
tio11-Co11ditio11s of section 69(2) held mandat01y. 
Part11ership Act, 1932-Sectio11 69(2)---Suit for possessio1t-Te11a11t 
continuing in possessio11 eve11 after expiry of leas~Wliether suit filed by 
unregistered Jinn legally mai11tai11able-Held, Ye~~Transfer of Property Act, 
188h·s 108, 111. 
A 
B 
c 
Transfer of Property Act, 1882-Section 108( q) iw/S 111 ( a)-Lease of D 
immovable property---Dete1111inatio11 by efflux of time-Rights a11d liabilities 
of lessor a11d lessee. 
The suit premises were rented to the appellant-defendant by a 
registered lease for a period of_21 years, ending on 15-3-1985. On the expiry 
of the lease period, the respondent- plaintiff, owner of suit premises, a 
partnership firm, filed a suit for decree for possessio1,1 as well as damages 
for illegal occupation of the premises by the appellant. The trial Court 
passed a decree for possession, holding that the defendant- appellant was 
E 
not a tenant holdin.g over and was in unlawful possession of the premises 
after the expiry of the lease period and that the suit was not barred by 
F 
Section 69 (2~~f the P11rtnership Act, 1932. The High Court upholding the 
findings recorded by the trial Court, dismissed the appeal. Hence this 
appeal. 
Appellant submitted that respondent being not a registered partner-
ship firm, and seeking to enforce a right arising out of the contract of lease 
between the parties, the suit was not maintainable, it being barred under 
Sec. 69(2) of the Partnership Act. The respondent contested that the suit 
was not filed for enforcing any right arising from a contract which was 
already at an end by effiux of time and it was based on two causes of action; 
G 
(i) on the covenant contained in the erstwhile contract; and (ii) on the law H 
485 
486 
SUPREME COURT REPORTS [ 1998] SUPP. 1 S.C.R. 
A of the land namely, common law as well as Sec. 111 (a) rw/S 108(q) of the 
Transfer of Property Act. Pending this suit, before the decree could be 
passed, respondent- plaintiff got the firm registered. 
The issues raised for consideration were (i) Whether the suit filed 
by the respondent-plaintiff was barred u/s 69(2) of the Partnership Act 
B either wholly or in part; (ii) if the suit was so barred, whether subsequent 
registration of the plaintiff firm could survive the suit. 
Dismissing the appeal, this Court 
C 
HELD: 1.1. Section 69 (2) of the Partnership Act is a penal provision 
which deprives the plaintiff of its right to get its case examined on merits 
by the court and simultaneously deprives the court of its jurisdiction to 
adjudicate on the merits of the controversy between the parties. It will, 
therefore, have to be strictly construed. Once the bar under Section 69(2) 
of the Act gets attracted, then the said provision being mandatory in 
D nature would make the suit incompetent on the very threshold. For sus-
taining a suit which falls within the sweep of section 69(2), the condition 
precedent is that the firm must be registered at the time of filing of the 
suit. If it is not registered the suit must be held to be incompetent from 
the inception. [512-C; D; E] 
E 
1.2. In the present case, the lease has come to an end and the 
erstwhile tenant has remained in occupation as a tenant at sufferance. 
Under law the erstwhile landlord is entitled to restoration of possession 
by enforcement of statutory obligation of the erstwhile tenant as statutorily 
F imposed on him u/S 108(q) rw/S lll(a) of the Transfer of Property Act. 
The non-compliance of the statutory obligation by the defendant when 
made subject matter of corresponding legal right of the erstwhile landlord 
cannot be said to be giving rise to enforcement of any contractual right of 
the plaintiff arising from the expired contract of tenancy. [513-C; D; E] 
G 
M.C. Clwckalingam & Ors. v. V. Manickayasagam & Ors., [1974) 1 
SCC 48; R. V. Blmpal Prasad v. State of A.P., [1995) 5 SCC 698; Smt Shami 
Devi v. Amal Kumar Bane1jee, [1981) 2 SCC 199; Mur/idhar la/an (since 
deceased) through his Lrs. v. State of Meghalaya & Ors., [1997] 5 SCC 480 
andD.H. Maniar& Ors. v. Waman Laxman Kudav, [1977) 1 SCR403, relied 
H on. 
RAPTAKOS BRETT AND CO. LTD. v. GANESH PROPERTY] 
487 
1.3. The plaint as fr

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