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HIGH COURT OF DELHI
CM(M) No. 165/2013 & CM No.2217/2013 21st August , 2014
PREETI CHANDRA ......Petitioner
Through: Mr. S.Chopra, Advocate
Through: Mr. Manish Makhija, Adv.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This petition under Article 227 of the Constitution of India is filed by the objector who is objecting to the execution of the judgment and decree dated 6.10.2008.
2. The memo of parties in the suit was as under:- “IN THE COURT OF SHRI NARINDER KUMAR: ADDL.
DISTRICT JUDGE:DELHI SUIT NO 356 OF 2004 M/S. KAUTEN KRAFT PLAINTIFF
VERSUS
DEFENDANTS MEMO OF PARTIES M/s Kauten Kraft A Registered partnership firm Having its office at: 71/1, Shivaji Marg, New Delhi-110015 ….Plaintiff
VERSUS
1. M/s Ikon Clothing Inc. 1407, Broadway, Suite 1708 New York-110018(USA)
2. M/s Motif Inc. B-30, Soami Nagar New Delhi
3. Wells Fargo Bank Minneapolis USA … Defendant”
3. The operative portion of the judgment dated 6.10.2008 decreeing the suit for recovery of money reads as under:- “ In view of the above discussion and findings, this court comes to the conclusion that plaintiff is entitled to recovery of US$ 18781.92 and that too from defendant No.1 only. As a result, suit of the plaintiff is decreed, with cost, in its favour and against defendant No.1 for recovery of US$ 18781.92 with interest @ Rs.12% per annum from the date of institution of the suit, till its realization. As regards defendant No.2 suit of the plaintiff is hereby dismissed. Decree sheet be prepared and file be consigned to record room.”
4. The objector has already filed objections that she is not liable on behalf of defendant no.1/judgment debtor no.1 as she was only a Director in the defendant no.1/judgment debtor no.1/company, however, one more objection/application was filed to dismiss the execution petition on the ground that the plaintiff/decree-holder is not a registered partnership firm and therefore, the suit could not have been filed. No doubt, an unregistered partnership firm cannot file a suit for recovery of money based on a contract, however, this is a defence which has to be raised in the suit and not in the executing court. A defence under Section 69 of the Indian Partnership Act, 1932 is one which is capable of being waived and there is no inherent lack of jurisdiction of the court if the partnership firm is not registered and all such objections have necessarily therefore to be raised in the suit and not before the executing court.
5. In view of the above, I do not find any error in the impugned order dated 7.12.2012 dismissing the objections against the execution on the ground that plaintiff is not a registered partnership firm. It is settled law that executing court cannot go behind the decree.
6. Dismissed.
AUGUST 21, 2014 VALMIKI J. MEHTA, J. ib