The facts of the case are number in dispute and they will be briefly numbericed.
On appeal by original defendants 1 to 3, the High Court in First Appeal No.35 of 1988 by its impugned judgment and order of April 10, 1992 allowed the appeal and dismissed the suit holding that in view of the provisions of Section 69 2 of the Indian Patnership Act hereinafter referred to as the Act , the suit was number maintainable, the plaintiff being an unregistered firm.
This therefore, gave rise to the objection urged on behalf of the defendants relying on Section 69 2 of the Act that the suit by an unregistered firm was number maintainable to enforce a right arising from a companytract.
The plaintiffs in the suit were the sons of Moolchand, the first plaintiff being the partnership firm of which three of his sons were partners, and the second plaintiff being his fourth son.
The defendants appealed to this Court by Special Leave.
The defendant firm acknowledged their liability to pay the amount entered in the khata by making an endorsement in the khata.
With effect from January 1, 1980 the proprietary firm of Purushottam Plaintiff No.1 was taken over by a partnership of which plaintiff Purushottam was also a partner.
During this period he supplied goods to the defendant firm namely Shivraj Fine Arts Litho Works, a firm registered under the Partnership Act.
During the pendency of the suit a receiver was appointed initially to take possession of the properties of the firm and to run the business of the firm.
In these circumstances a suit was filed by the partnership firm with three of the sons of Moolchand as partners thereof being the first plaintiff.
While the said application was pending, the instant suit was filed on March 31, 1980.
Later joint receivers were appointed, and it is number in dispute that at the relevant time defendant No.2 and defendant No.12 were in management of the aforesaid registered firm respondent No.1 herein as joint receivers.
They claimed the relief of injunction restraining the defendants from using the said trademark, damages, and for destruction of the material etc.
A khata was maintained by plaintiff No.1 Purushottam in which payments made were duly entered, and at the end of the year the amount outstanding as on December 31, was carried forward to the next year.
On dissolution of the firm on 16.11.1974 in terms of the deed of dissolution, Moolchand became the sole proprietor of the trademark for the whole companyntry except State of West Bengal.
The said partnership firm took over all the assets and liabilities of Dinesh Paper Mart and companytinued their business in the same name.
It would thus appear that though the newly companystituted partnership firm had applied for registration on January 14, 1980, on the date on which the suit was filed, that is on March 31, 1980, it was an unregistered firm and registration was granted later on November 29, 1980.
In the meantime on 10.10.1977 R.L. Aggarwal and his son applied in Calcutta for registration of the same trademark in their name claiming to be full owners of the trademark, without disclosing the dissolution deed of 16.11.1974.
Later, on November 29, 1980, the Plaintiff No.2 firm was granted registration under the Act.
Even after appointment of the Receiver, successive Receivers purchased goods from Plaintiff No.1, Purushottam, herein for the business of respondent No.1 firm.
Though the said partnership firm came into existence on January 1, 1980, an application for registration of the firm under the Act was made on January 14, 1980.
Kamla Devi, another partner, who was the wife of R.L. Aggarwal a brother of Moolchand, was given ownership of the trademark rights for West Bengal.
The defendants filed an application under Order 7, Rule 11, CPC for summary dismissal of the suit since Plaintiff No.1 partnership firm was number a registered partnership firm on the date of the filing of the suit.
It is number in dispute that the amounts due and payable to the plaintiff No.1, Purushottam were fully paid up as on March 20, 1974, that is, before the date of appointment of Receiver.
Three of them formed a partnership in the year 1983 and were running a shop in Chandni Chowk, Delhi.
The plaintiff was also entitled to interest at the agreed rate of 18 per annum on the balance outstanding for more than seven days.
The aforesaid Purushottam had business dealings with the respondent No.1 firm.
The Trial Court dismissed the application and so did the appellate bench of the High Court of Delhi.
Their case was that the partnership of which their late father Moolchand was a partner was the duly registered proprietor of the trademark Haldiram Bhujiawala.
Goods were supplied and payments made from time to time.
As at the end of the financial year 1979 a sum of Rs.6,22,713.06 was the balance due from the defendant firm to plaintiff Purushottam.
In the year 1974, Special Civil Suit No.9 of 1974 was filed for dissolution of the defendant partnership firm and for rendering of accounts.
Defendants 2 to 9 were the partners of the said firm.
1 to 9 was decreed for the sum of Rs.8,92,815.14 by the Third Joint Civil Judge Senior Division , Nagpur in Civil Suit No.52 of 1980.
Plaintiff No.1, Pursushottam, carried on business as whole sale paper merchant in the name and style of Dinesh Paper Mart as the sole proprietor of the companycern.
Their suit against original defendant number.
Upon the death of Moolchand in 1985 his four sons got themselves recorded as joint proprietors of the trademark.
P. Singh, J In this appeal by special leave the plaintiffs are the appellants.
The second plaintiff in the suit was the fourth son of Moolchand.
