Can an unregistered partnership firm file a suit.

Shiv Developers v. 16. In our view, the questions arising in this matter could be
Aksharay Developers, directly answered with reference to the principles enunciated
(2022) 13 SCC 772 by this Court in Raptakos Brett & Co. Ltd. v. Ganesh
Property [Raptakos Brett & Co. Ltd. v. Ganesh Property,
(1998) 7 SCC 184] , which have further been explained and
applied by this Court in Haldiram Bhujiawala [Haldiram
Bhujiawala v. Anand Kumar Deepak Kumar, (2000) 3 SCC
250] and Purushottam [Purushottam v. Shivraj Fine Arts
Litho Works, (2007) 15 SCC 58] . We may take note of the
principles vividly exposited in Haldiram
Bhujiawala [Haldiram Bhujiawala v. Anand Kumar Deepak
Kumar, (2000) 3 SCC 250] that to attract the bar of Section
69(2) of the 1932 Act, the contract in question must be the
one entered into by firm with the third-party defendant and
must also be the one entered into by the plaintiff firm in the
course of its business dealings; and that Section 69(2) of the
1932 Act is not a bar to a suit filed by an unregistered firm, if
the same is for enforcement of a statutory right or a common
law right.
What is a “Mercantile document” under Commercial Courts Act, 2015? Does oral
consideration work in a commercial dispute?
Ladymoon Towers (P) 12. ... The Calcutta High Court in Associated Power Co. Ltd.
Ltd. v. Mahendra v. Ram Taran Roy, AIR 1970 Cal 75 focused its gaze on a
Investment Advisors (P) “mercantile document” within the meaning of the First
Ltd., 2021 SCC OnLine Schedule of the City Civil Court Act, 1953 as a document
Cal 4240 between merchants and traders where the construction,
interpretation and meanings of words and clauses of the
mercantile documents would assume significance.

15. The case-law on the subject would indicate that a

Prime Hitech Textiles v.
Manish Kumar, 2022 SCC
OnLine Cal 2326
mercantile document is a document used in a transaction or in
relation to a transaction between merchants, bankers,
financiers and traders. In the present case, the statements in
the plaint make it clear that the plaintiff lent money to the
defendant by way of an oral understanding without
formalising or reducing such understanding in writing. The
plaint does not plead the existence of any agreement, much
less a written agreement involving a mercantile document.
3. The Counsel for the defendant submits that the plaintiff has
filed the suit on the basis of an oral agreement, no document
was executed and not filed any memorandum of
understanding to establish whether the transaction is for any
 commercial business.
15. After considering the above referred judgments this
Court has carefully gone through the plaint and the
documents relied by the plaintiff. It reveals that in none of the
paragraph of the plaint it is mentioned that the transaction
between the plaintiff and the defendant was in connection
with any business. On plain reading of the paragraph 16 on
the basis of which the plaintiff has prayed for a decree for an
amount of Rs. 1,76,74,315.07/- is a simple suit of recovery of
money. The plaintiff tried to made out a case of in
commercial nature in the paragraphs 2 and 3 of the plaint but
in the said paragraphs, the plaintiff has only explained the
business of both the parties but it is nothing in the plaint that
the transaction between the parties are connected with any
business transaction.
16. It is settled law that all suit for recovery of money
cannot fall under Section 2(1)(c) of the Commercials Courts
Act, 2015.
17. Though the defendant has filed the instant application
for rejection of the plaint but this Court is of the view that the
suit cannot be dealt by the Commercial Court for the said
reason, the plaint cannot be rejected and accordingly the
plaint filed in CS 141 of 2021 is return to the plaintiff for
filing the same before the appropriate the Court.

Objection w.r.t transaction after filing of WS.

Geetha v. 6. Before considering the legality of the approach adopted by
Nanjundaswamy, 2023 the High Court, it is necessary to consider Order VII Rule
SCC OnLine SC 1407 11, CPC and the precedents on the subject. The relevant
principles have been succinctly explained in a recent decision
of this Court in Dahiben v. Arvindbhai Kalyanji Bhanusali, as
follows:

…“23.14. The power under Order 7 Rule

11 CPC may be exercised by the court at any stage of the
suit, either before registering the plaint, or after issuing
summons to the defendant, or before conclusion of the
trial, as held by this Court in the judgment of Saleem
Bhai v. State of Maharashtra [Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557]. The plea that once
issues are framed, the matter must necessarily go to trial
was repelled by this Court in Azhar Hussain case [Azhar
 Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed
in Manvendrasinhji Ranjitsinhji
Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj
281 : (1998) 2 GLH 823].
23.15. The provision of Order 7 Rule 11 is mandatory
in nature. It states that the plaint “shall” be rejected if
any of the grounds specified in clauses (a) to (e) are
made out. If the court finds that the plaint does not
disclose a cause of action, or that the suit is barred by
any law, the court has no option, but to reject the plaint”

Partnership can be in oral or in writing.

Gannmani Anasuya v. 25. There is no document in writing to prove partnership.
Parvatini Amarendra Accounts had not been demanded by the plaintiffs or
Chowdhary, (2007) 10 Defendant 3 for a long time. Even an oral partnership had not
SCC 296 been proved. What was the subject-matter of the partnership
had also not been considered by the High Court. A share in a
joint venture, in the absence of any document in writing, must
be determined having regard to the conduct of the parties.
The High Court proceeded on the basis that the plaintiffs and
Defendant 1 had 1/2 share in the property in terms of Section
45 of the Transfer of Property Act. If the said immovable
property formed assets of the joint venture, the same would
be an indicia to determine the shares held by the parties
thereto. Ordinarily, the extent of an involvement made shall
be the criterion for determining the share of the co-
entrepreneurs. In the absence of terms and conditions of the
joint venture having not been reduced to writing, conduct of
the parties how they dealt with affairs of the business would
be relevant.
Company entering into agreements before its incorporation
Spread Info Tech 12. In this case also Cooperation Agreement is dated
Consultants Pvt. Ltd. v. 12th/14th August, 2004; whereas plaintiff-company was
ZTE Kangxun Telecom incorporated on 3rd September, 2004 and was not in existence
Company India Pvt. Ltd., at the time when the Agreement was executed, thus, it can
2011 SCC OnLine Del safely be concluded that the agreement is nonest in the eyes
4191 of law and will not bind the defendants. Perusal of
Cooperation Agreement clearly shows that it has been
executed by the plaintiff-company through its Director Ravi
Chauhan. It has no where been mentioned that the agreement
was being executed by Ravi Chauhan as promoter of M/s.
Spred Info Tech Consultants Pvt. Ltd., under incorporation.
Judgments referred and relied upon by the plaintiffs' counsel
are in the context of different facts and are not applicable to
the facts of the present case. In Asian Hotels (supra), bid for
purchase of flat was made by the promoter on behalf of the
company under incorporation. In Weavers Mills's case (supra)
also immovable properties were purchased by the promoters
of company under incorporation. In the present case, perusal
of agreement in no uncertain terms makes it clear that
agreement was executed by the plaintiff-company through its
Director and not by the promoter of company under
incorporation. Thus, Cooperation Agreement will not give
rise to any cause of action for recovery of amount claimed in
the suit.