- 1 - NC: 2025:KHC-D:1692-DB COMAP No. 100028 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR COMMERCIAL APPEAL NO. 100028 OF 2024 BETWEEN: TARADE BROTHERS CONSTRUCTION PVT LTD. RAIBAG, REPRESENTED BY ITS MANAGING DIRECTOR, S/O. APPASAB TARADE, AGE: 45 YEARS, OCCUPATION: AGRICULTURE AND BUSINESS, R/O: CHINCHALLI, TALUK: RAIBAG, DISTRICT: BELAGAVI. …APPELLANT (BY SRI. VITTHAL S. TELI, ADVOCATE) AND: 1. JAGANNATH S/O. SHIVAGOUDA PATIL, AGE: 56 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O: CHINCHALI, TALUK: RAIBAG, DISTRICT: BELAGAVI, KARNATAKA 2. DR. RAMESH S/O. MALLAPPA DODBHAHGI, AGE: 40 YEARS, OCC: DOCTOR, R/O. HANDIGOD TALUK, HUKKERI, DISTRICT. BELAGAVI. 3. SMT. SHEELA W/O. RAMESH DODBHANGI, AGE: 38 YEARS, OCC: HOUSEHOLD, BOTH ARE R/O: HANDIGOD TALUK, HUKKERI, DISTRICT: BELAGAVI. …RESPONDENTS Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1692-DB COMAP No. 100028 of 2024 THIS COMMERCIAL APPEAL FILED UNDER SECTION 13(1) OF THE COMMERCIAL COURTS, PRAYING TO, CALL FOR THE RECORDS IN COM.O.S.NO.84/2022 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELAGAVI AND TO SET ASIDE THE ORDER DATED 28.08.2024 IN COMM. OS NO.84/2022 PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE/COMMERCIAL COURT, BELAGAVI, ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD) The appellant has filed a suit for partition of the land in CTC Nos.3780 and 2476 in Sankeshwar [‘the subject properties’]. The suit is initially presented with the Senior Civil Judge, Hukkeri, in the year 2020 and is registered in OS No.84/2020, but the suit is later transferred to the Principal District and Sessions Judge, Belgaum, [for short, ‘the Commercial Court’] under the provisions of the Commercial Courts Act, 2015. The respondents have filed an application under Order VII Rule 11(d) of CPC for rejection of the plaint. The Commercial Court has favoured this application by the impugned order dated 22.08.2024 - 3 - NC: 2025:KHC-D:1692-DB COMAP No. 100028 of 2024 rejecting the plaint under Order VII Rule 11(d) of CPC on the ground that the suit is barred by law. 2. The appellant’s case is that because of an arrangement with the first respondent, the subject properties are purchased, and after such purchase, these properties are brought into as a capital asset of a Partnership Firm that is constituted under the Partnership Deed dated 01.10.2012. It remains undisputed that this Partnership Firm is not registered as is required under Section 69 of the Partnership Act, 1932. 3. Sri Vithal S. Teli, the learned counsel for the appellant, requesting for the orders on IA filed today during the course of hearing under Order XXIII Rule 1 r/w Section 151 of CPC, submits that this Court may dispose of the appeal with liberty to file the fresh suit on the same cause of action contending that the suit will fail only because of a formal defect asserting that the provisions of Section 69 of the Partnership Act will not apply if the appellant had only filed for dissolution of the Firm seeking - 4 - NC: 2025:KHC-D:1692-DB COMAP No. 100028 of 2024 accounts and to realize the property share in the Firms property. Sri Vithal S. Teli relies upon the Section 69(3) of the Act. 4. The appellant has filed a suit for partition of the suit schedule properties, but its cause for the suit is essentially found in the premise that the subject properties are the assets of a Firm that will have to be dissolved and for accounts for settlement of all interests in the subject property. The Section 69 of the Partnership Act, 1932 in its material part for the present purposes reads as under: 69. Effect of non-registration.— [1] 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. [2] No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. [3] The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding - 5 - NC: 2025:KHC-D:1692-DB COMAP No. 100028 of 2024 to enforce a right arising from a contract, but shall not affect,— [a] the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or ……… 5. This Court, in the light of the assertions in the plaint and the prayer sought for, is persuaded to opine that there is a formal defect in the suit. Hence, the appeal is disposed of allowing the application permitting the appellant to withdraw the suit and institute a fresh suit for dissolution of the Firm and other consequential relief but without prejudice to any defense that could be with the respondent. SD/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE VMB/CT-VG LIST NO.: 1 SL NO.: 10