Gujarat High Court
Kiritbhai Jaykrishna Thakkar vs M/S Sandipkumar Bhikhabhai Patel And Co on 3 December, 2025
NEUTRAL CITATION
C/FA/307/2020 JUDGMENT DATED: 03/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 307 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 307 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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KIRITBHAI JAYKRISHNA THAKKAR & ORS.
Versus
M/S SANDIPKUMAR BHIKHABHAI PATEL AND CO. & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESENTATIVES for
the Appellant(s) No. 1
MR NIRAV C THAKKAR(2206) for the Appellant(s) No. 1.1,1.2,1.3
LD SR ADV.MR N D NANAVATI ASSISTED BY MR VANDAN BAXI FOR
NANAVATI & NANAVATI(1933) for the Defendant(s) No. 2,3,4,5
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/12/2025
ORAL JUDGMENT
1 This appeal is filed under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 24.09.2018 passed by the learned 3rd Additional Senior Civil Judge, Anand in Special Civil Suit No.204 of 2006, whereby the appellants have been directed to pay costs of ₹2,50,000/- to defendants Nos.3 and 5, along with interest at the rate of 9% per annum from the date of filing of the suit. The learned Court has further directed the Page 1 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025 NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined appellants to bear the litigation expenses of defendants Nos.3 and 5.
2 It is the case of the appellants, who are the original plaintiffs, that the father of the appellants had advanced an amount of ₹10,00,000/- in cash to defendant No.1 a partnership firm-as respondent No.1 was in need of funds for running its business. It is contended that on 07.12.2004, respondent No.2 issued a written receipt acknowledging the said dues and agreed to repay the amount with interest at the rate of 18% per annum. In order to discharge the said liability, a cheque bearing No.477600 for ₹10,00,000/- was issued in favour of the appellants' father; however, the cheque was dishonoured with the endorsement "insufficient funds".
2.1 After the demise of their father, the appellants issued a legal notice dated 06.05.2006 demanding repayment of the loan amount. In addition thereto, a complaint under Section 138 of the Negotiable Instruments Act came to be filed, being Criminal Case No.386 of 2006, which was quashed at the instance of the defendants and the said order was thereafter upheld by the Apex Court.
2.2 Seeking recovery of the loan amount, the appellants instituted Special Civil Suit No.204 of Page 2 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025 NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined 2006 against the partners as well as defendants Nos.3 and 5. Ultimately, while the learned trial Court decreed the suit in favour of the appellants, it simultaneously directed the appellants to pay costs of ₹2,50,000/- with interest at the rate of 9% per annum from the date of institution of the suit, and also directed them to bear the litigation expenses of defendants Nos.3 and 5. The aforesaid directions regarding costs form the subject matter of challenge in the present appeal.
3 Heard the learned advocate Mr.Nirav Thakker for the appellants and the learned senior advocate Mr.Nanavati assisted by Mr.Vandan Baxi on behalf of Nanavati & Nanavati for the defendants.
4 Learned advocate Mr. Nirav Thakker submits that the present respondent Nos.3 and 5 were initially partners of the partnership firm, which had borrowed the money from the father of the appellants. Learned advocate Mr. Thakker further submits that during the pendency of the civil suit, except raising a contention regarding misjoinder of parties, no application was filed for the deletion of respondent Nos.4 and 5 from the proceedings. It is submitted by the learned advocate Mr. Thakker that all the respondents were represented by a common advocate and had also filed a common written statement.
Page 3 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined 4.1 Learned advocate Mr. Thakker submits that while decreeing the suit in favour of the appellants, the learned trial Court had already directed the appellants to bear the litigation costs qua defendant Nos.3 and 5. Therefore, awarding an additional amount of Rs.2,50,000/- as costs, with interest at the rate of 9% per annum, would be unduly harsh, particularly in view of the fact that the present respondents were partners of the borrowing firm. In that background, learned advocate Mr. Thakker prays that the first appeal be allowed and the impugned judgment be set aside insofar as it directs the appellants to pay Rs.2,50,000/- each with interest to respondent No.3 & 5.
5 Per contra, learned senior advocate Mr. Nanavati, appearing for all the respondents, submits that at the stage of replying to the notice, it was specifically contended that respondent Nos.3 and 5 had no connection with the partnership firm. Learned senior advocate Mr. Nanavati further submits that notwithstanding the same, respondent Nos.3 and 5 were joined as parties to the suit and had to undergo trial for a prolonged period of twelve years. Therefore, no error is committed by the learned trial Court in directing the appellants to pay the costs Page 4 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025 NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined along with interest. In that background, learned senior advocate Mr. Nanavati submits that no interference is warranted, and the appeal is liable to be dismissed.
6 Having considered the arguments advanced by the learned advocates for the respective parties and upon perusal of the record, it emerges that the suit was filed against five defendants, including the present defendant Nos.3 and 5, for recovery of the amount borrowed by the partnership firm from the father of the plaintiffs-appellants. On filing the suit, a common written statement was submitted by the defendants, marked as Exhibit 12, contending that the partnership firm had already been dissolved on 01.04.2004, and that respondent Nos.3 and 5 were erstwhile partners who had resigned from the partnership firm on 01.04.1996. It was further contended that the suit ought to be dismissed on the ground of misjoinder of parties. On the basis of this contention, the learned Court framed the following issues, which are reproduced herein below:
"(1) Whether the plaintiff proves that the defendants had received the amount as stated in paragraph 2 of the claim application?
(2) Whether the plaintiff proves that, towards the aforesaid transaction, the defendant had issued the Page 5 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025 NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined cheque as mentioned in paragraph 3 of the claim application, which was returned unpaid due to insufficiency of funds?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) Whether the defendant proves that the suit is liable to be dismissed for non-joinder of necessary parties?
(5) Whether the defendant proves that the suit is barred by the law of limitation?
(6) Whether the defendant proves the facts stated in paragraph 8 of the written statement?
(7) What order and decree?
Issues are answered as under:
(1) Affirmative
(2) Affirmative
(3) Partly Affirmative
(4) Partly Affirmative
(5) Negative
(6) Negative
(7) As per final order
7 While deciding Issue No.4, the learned Court
observed in its judgment that though respondent Nos.4 and 5 had no connection with the partnership firm, they had been wrongly joined as parties to the suit. Accordingly, the said issue was answered partly in the affirmative in favor of the respondents.
Page 6 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined 8 This Court has referred the decision rendered by the Apex Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others, reported in (2010) 7 SCC 417 wherein the Apex Court has held as under:
"8.The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I, Rule 10(2) of Code of Civil Procedure ('Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether Page 7 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025 NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
9 Undisputably, though the Court was having the power to strike out the names of the parties either upon or without the application of either parties such powers have not been exercised by the learned Court.
10 At the end of the trial, the learned Court has held that as respondent Nos.3 and 5 were wrongly joined, they are required to be compassionate and that too also 50% of the decretal amount.
11 From the evidence recorded by the learned Court, it emerges that neither respondent Nos.3 and 5 produced any evidence in support of their contention regarding misjoinder of parties, nor was any application filed in that regard. However, the learned Trial Court, in the end, held that respondent Nos.3 and 5 were wrongly joined and that they were required to be compensated, that too to the extent of 50% of the decretal amount.
12 It is true that no specific averments were made in the plaint regarding the involvement of respondent Page 8 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025 NEUTRAL CITATION C/FA/307/2020 JUDGMENT DATED: 03/12/2025 undefined Nos.3 and 5, and that they were undergone the trial for a prolonged period of 12 years. However, awarding 50% of the decretal amount to them is too excessive, particularly when all the defendants were represented through a common advocate and had filed a common written statement. In these circumstances, if the compensation awarded by the learned Trial Court is reduced to Rs.50,000/- each, then ends of justice would be met.
13 Additionally, from the evidence recorded by the learned Court, it emerges that neither respondent Nos.3 and 5 produced any separate evidence in support of their contention regarding misjoinder of parties, nor were any separate applications filed by them in this regard. In that background as well, the impugned judgment warrants interference.
14 Resultantly, this appeal is partly allowed. The direction regarding the payment of costs of Rs.2,50,000/- with interest at the rate of 9% to respondent Nos.3 and 5, namely, Chandrakantbhai Manibhai Patel and Bhikhubhai Naranbhai Patel, is modified to Rs.50,000/- each, without interest. Civil Application is also disposed of.
(M. K. THAKKER,J) M.M.MIRZA Page 9 of 9 Uploaded by M.M.MIRZA(HC01407) on Wed Dec 10 2025 Downloaded on : Wed Dec 10 21:04:47 IST 2025