Gujarat High Court
Krishnakunvarba Alias Krishnadevi W/O ... vs M/S Prithvi Development Corporation on 11 July, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025
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Reserved On : 30/04/2025
Pronounced On : 11/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 719 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 719 of 2024
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2024
In R/FIRST APPEAL NO. 719 of 2024
With
R/FIRST APPEAL NO. 3375 of 2024
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2024
In R/FIRST APPEAL NO. 3375 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
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KRISHNAKUNVARBA ALIAS KRISHNADEVI W/O KIRITSINH JADEJA
Versus
M/S PRITHVI DEVELOPMENT CORPORATION & ORS.
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR JAMSHED
KAVINA(11236) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2,4
MR DHAVAL D. VYAS, SENIOR ADVOCATE WITH MR DARSHANKUMAR
R KABRA(11246) for the Defendant(s) No. 5
MR MIHIR H. JOSHI, SENIOR ADVOCATE WITH MR MANAV A
MEHTA(3246) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1
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NEUTRAL CITATION
C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN) First Appeal no.719 of 2024 is filed challenging the judgment dated 24.01.2024 (hereinafter referred to as "the impugned judgment") whereby, Special Civil Suit no.21 of 2020 (hereinafter referred to as "the suit"), has been rejected. In subsequently filed First Appeal no.3375 of 2024, the challenge is to the order dated 29.09.2023 (hereinafter referred to as "the impugned order") passed below application, Exh.52 insofar as the prayer of the plaintiff, seeking direction to the defendants to tender a duly audited accounts by the registered Chartered Accountant, has been refused. For the sake of convenience, parties to the suit, are referred to as per their original status.
2. Mr Percy Kavina, learned Senior Counsel with Mr Jamshed Kavina, learned advocate for the plaintiff submitted that the application, Exh.52, contained twofold prayers; firstly, passing of a preliminary decree, declaring the proportionate shares of the parties and to fix a date on which the partnership shall stand dissolved or deemed to have been dissolved; and secondly, direction to the defendant nos.1 and 5 to tender in Court, duly audited accounts by the Chartered Accountant along with all the passbooks, cheque books etc. in respect of the assets of M/s Pruthvi Development Corporation, a registered partnership firm - defendant no.1. It is submitted that the Trial Court, directed dissolution of the defendant no.1 partnership firm from the date of passing of the order with a further direction to draw the preliminary decree accordingly. The Trial Court, ought to have directed drawing of a preliminary decree, declaring the proportionate share of the parties and the date ought Page 2 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined to have been fixed on which the partnership stood dissolved or deemed to have been dissolved. It is submitted that after the dissolution, no decree is drawn in terms of Order XX Rule 15 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). The preliminary decree has to be drawn in terms of Form 21 of Appendix-D to the Code; however, no steps have been taken in furtherance thereof.
2.1 It is submitted that out of two prayers, the learned Judge, has granted only one, the prayer of direction to the defendants to tender in Court duly audited accounts by the registered Chartered Accountant together with other record, has not been granted. As per clause 12 of the partnership deed, all the partners had right to access the accounts of the firm and therefore, the prayer for the accounts, ought to have been allowed to the plaintiff. It is submitted that despite the fact that the preliminary decree was already passed vide the impugned order, instead of drawing the decree, the Trial Court, misdirected itself and rejected the suit by impugned judgment and decree dated 24.01.2024.
2.2 It is further submitted that the defendant no.2 has disposed of the property which he could not have by way of a registered sale deed inasmuch as, the defendant no.2 had no right to act on behalf of all the partners as per the agreement. Resultantly, the act of the defendant no.2 of selling the suit property, was illegal and contrary to the interest of the defendant no.1 - partnership firm and in clear contravention of clause 13 of the partnership deed. It is further submitted that the Trial Court, has given undue weightage to clause 11 of the partnership deed which, gives some authority to the defendant no.2 to deal with the suit property. Right to deal with the suit property on behalf of the partners was very much there, but it was not an absolute right to dispose of the property and that too Page 3 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined against the interest of the partnership firm. No consent of the plaintiff was taken, let alone any information to the plaintiff regarding the sale of the property, which otherwise, was an obligation flowing from clause 13 of the partnership deed. In absence of any consent or consultation, the disposal of the suit property at a meagre price, was only with a view to defrauding the plaintiff. It is further submitted that the partnership deed is admitted, so also the properties mentioned therein. It is further submitted that sufficient evidence was produced by the plaintiff by entering into the witness box and the defendant, could not bring on record anything contrary and therefore, the Trial Court, committed an error in observing that the plaintiff has failed to prove that the sale deed was executed fraudulently.
2.3 It is further submitted that the defendant nos.2 and 4 never entered the names of their heirs to the firm as required under clause 14 of the partnership deed and it was never made known to the plaintiff by the defendant nos.2 and 4 that the defendant no.3, is their heir. Reliance is placed on the judgment of the Apex Court in the case of Upper India Cable Co. And Ors. vs Bal Kishan reported in (1984) 3 SCC 462. It has been held and observed that question of substituting heirs and legal representatives of the two proper formal parties, does not arise and the death has no impact on the proceeding and the appeal cannot abate.
2.4 It is further submitted that the plaintiff has clearly stated in her evidence about disposing of the property by the defendant no.2 to defendant no.3 his adopted son who, also happens to be real son of the defendant no.5. Such aspect, has not been appreciated by the Trial Court and therefore, it committed a grave error in concluding that the plaintiff has produced nothing to prove that the sale deed was executed fraudulently. Thus, there is an error committed by the Page 4 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined Trial Court in answering the issue nos.2 and 3 in negative, despite availability of the documentary evidence, substantiating the same and produced by the plaintiff. It is submitted that the plaintiff, having shifted initial burden, it was incumbent upon the defendants to have disproved the claim; but, the defendants failed to do so and in absence of any evidence, the suit could not have been dismissed. It is submitted that only the written statements were filed by the defendants and none of the defendants have entered the witness box nor have they led any evidence. The Trial Court, ought to have considered the well-settled principle of drawing adverse inference if a party does not step into the witness box. The Trial Court, has disposed of the suit showing undue haste and there was complete failure of jurisdiction exhibited by the Trial Court considering the fact that the impugned judgment is rendered within two months from the date of passing of the impugned order.
3. On the other hand, Mr Mihir H. Joshi, learned Senior Counsel with Mr Manav A. Mehta, learned advocate for the defendant no.3 submitted that so far as the challenge to the preliminary decree and seeking accounts are concerned, in the year 1996, as per the case of the plaintiff herself, the activities of the firm have stopped and hence, there cannot be any insistence for the audited accounts of the partnership firm. It is next submitted that as per condition no.7 of the partnership deed, if any partner is desirous of discontinuing, he will be at liberty to leave the partnership as per clause 14 of the partnership deed. Therefore, the option available to the plaintiff was to leave; however, the plaintiff cannot insist for dissolution of the partnership firm. It is next submitted that the suit itself was not maintainable considering the fact that the defendant nos.2 and 4 were partners of the firm and expired during the pendency of the suit. The plaintiff herself has filed an application and both the defendants were deleted from the array of the respondents. It is Page 5 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined further submitted that the factum of the defendant no.3 being the son of one of the defendants, was very much known to the plaintiff, but in the application, Exh.22 filed, it was stated that the defendant was a bachelor and had no legal heirs as per her information. Citing the provision under Order XXX Rule 4 of the Code, it was prayed that the legal representative of the deceased partner, is not required to be joined. Similarly, somewhere in the month of July 2023, defendant no.4, having passed away, on 14.11.2022, an application, Exh.51, was filed for deletion of the name from the array of the respondents. Accepting the application, order dated 21.07.2023 was passed by the learned Additional Senior Civil Judge, directing deletion of defendant nos.2 and 4 from the array of the parties. It is submitted that stand was taken by the defendant no.3 all throughout that he is the adopted son, but the plaintiff chose not to implead the defendant no.3 as the heir of the defendant no.2. Therefore, when the partners were already directed to be deleted from the array of the parties, the suit would not survive and is not maintainable.
3.1 Reliance is placed on the judgment of this Court in the case of Madhavji Khatau Katira And Anr. vs Trikamdas Narandas Tanna reported in AIR 1969 Guj 205 wherein, it has been held and observed that the suit by some of the partners of a firm against the other partners for dissolution or for accounts and if one of the partners dies and his legal representative is not brought on the record, the suit will abate as a whole. The judgment in the case of Yakub Ibrahim v. A. Gulamabbas reported in AIR 1958 Bom 51 has been referred to wherein, it has been held and observed that in a partnership suit, all the partners or their legal representatives must be made parties because all the parties necessary for the disposal of the subject-matter of the suit, including taking of accounts must be before the Court or the suit will fail.
Page 6 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined 4. Mr Dhaval D. Vyas, learned Senior Advocate with Mr
Darshankumar R. Kabra, learned advocate for the defendant no.5 submitted that initially, there were 9 partners and out of 9, 5 have passed away and as of now, only 4 partners were surviving. According to the plaintiff, the plaintiff has joined the necessary parties as defendants. Without prejudice, they have joined four defendants, reserving the liberty to join their legal representatives. It is submitted that allegation is made in the plaint that defendant nos.2 and 4 are looking after the operations of the firm. It is submitted that the relief for the accounts was not pressed, considering the fact that the defendant nos.2 and 4 the surviving partners have been deleted. It is submitted that so far as 10% share of the plaintiff is concerned, there is no dispute and the land having been disposed of for Rs.65 lac, 10% would go to the share of the plaintiff; however, insisting for the accounts in absence of defendant nos.2 and 4, would be impermissible. It is submitted that the arms length and surreptitious transaction by the plaintiff against the defendant nos.2 and 4 would not survive in their absence, so also the heirs having not brought on the record, much less any evidence by the plaintiff. Precisely, for this very reason, that the second prayer was not pressed, seeking accounts.
5. The matter was heard and kept for dictation of the judgment. Issue cropped up as regard the jurisdiction in connection with the partnership matter; this Court, therefore, requested the learned counsel to make submissions. Accordingly, following submissions were made.
6. Mr Percy Kavina, learned Senior Counsel submitted that the dispute is commercial in nature and in the matter of jurisdiction, there is no waiver or res judicata. The defect goes to the very Page 7 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined authority of the Court. Reliance is placed on the judgment of the Delhi High Court in the case of Jatin Jain & Ors. vs. Anuj Jain & Ors. reported in 2024 SCC OnLine Del 2076. Referring to the provisions of the Act of 2015, it has been held that the jurisdiction of a Commercial Court or a Commercial Division of the High Court is attracted when a suit relates to the commercial dispute of a specified value. It has been held and observed that in section 2(1)(c) of the Act of 2015, the Legislature specifies the kind of disputes which would be amenable to the special procedure under that special statute. It has also been held and observed that when in section 2(1)(c))(xv) of the Act of 2015, the Legislature, inter alia, says that a dispute arising out of a partnership agreement is also a commercial dispute, it only means that the dispute must be relatable to a partnership agreement, not that the relief sought must necessarily be under the partnership agreement.
6.1 Reliance is also placed on the judgment of the Delhi High Court in the case of Namita Gupta vs. Suraj Holdings Ltd. reported in (2024) 312 DLT 242. It is further submitted that when the dispute is commercial, the correct procedure is to return the plaint and not to transfer. It has been further observed that if a suit raises a commercial dispute of a specified value, the ordinary Civil Court shall have no jurisdiction to entertain the same, and it must, therefore, return the plaint in exercise of its power under Order VII Rule 10 of the Code. It is submitted that when the Court found that the suit was commercial with a specified value, it held that the only power vested in the Court, was to return the plaint to the plaintiff for it to be presented before the Court of competent jurisdiction and the learned Judge, had no power to place the file of the suit before the Court for it to be transferred to the Court of competent jurisdiction.
7. Mr Mihir H. Joshi, learned Senior Counsel submitted that Page 8 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined application, Exh.32 was filed by the defendant no.4 under the provisions of Order VII Rule 10 of the Code, raising the ground that the suit, is barred by law. The application contained the ground that the nature of the dispute is commercial considering the fact that the suit has been filed in the capacity of partners of the defendant no.1, firm and hence, the Court has no jurisdiction. It is submitted that the plaintiff, has put an endorsement though without prejudice to her rights and contention that if the suit is transferred to the Commercial Court, she has no objection. The Court below, after hearing the parties, had passed a detailed order dated 25.08.2022 and was of the opinion that the application, is not supported by any law and it cannot be said that the Court has no jurisdiction. The application, has been rejected and the jurisdiction was upheld by the Court below and plaintiff, has chosen not to challenge the said order. Even in the appeal, there is no challenge. The issue would be whether the plaintiff can now take such a stand considering the fact that the jurisdiction is conferred by judicial order. The judgment cited, would not be applicable to the facts of the present case.
6.1 Reliance is placed on the judgment of the Apex Court in the case of Union of India vs. Reliance Industries Ltd. reported in (2015) 10 SCC 213. The Apex Court, has held that it would be impermissible to reopen the question which is already settled and would be an abuse of the process of the Court. Reliance is also placed on the judgment of the Apex Court in the case of Kiran Devi vs. The Bihar State Sunni Wakf Board reported in (2021) 15 SCC 15. It has been held and observed that the parties cannot be permitted to approbate and reprobate in the same breath. It has been held and observed that the conferment of the jurisdiction by virtue of judicial order having attained finality between the parties; the jurisdiction, is conferred by the judicial order and hence, it would be impermissible for the plaintiff to turnaround and contend that the Page 9 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined Court had no jurisdiction specially, having lost in the suit.
8. Mr Percy Kavina, learned Senior Advocate, in a brief rejoinder submitted that the conduct and the intention of the parties, are irrelevant. What is to be seen is, whether the Court has the jurisdiction or not.
9. Heard the learned advocates appearing for the respective parties. Perused and considered the paper-book made available of the suit proceedings.
10. Tersely stated are the facts. The late father-in-law of the plaintiff - Shri Prithviraj Raisinhji Jadeja and other relatives, to grow the business of land, real estate, construction etc., formed the defendant no.1 firm on 21.05.1982 by executing a partnership deed which was duly registered with the Registrar of Firms vide registration entry no.GUJ/SRT(S) 1305 dated 07.07.1983. In all, there were 9 partners, including the plaintiff. Out of 9 partners, 5 partners are dead. As on the date of the filing of the suit, only four partners were living, namely, plaintiff and the defendant nos.2, 4 and 5.
11. It is the case of the plaintiff that as the firm, was not engaged in any business for quite some time, the plaintiff and other relatives tried to convince the managing partners to dissolve the firm and to settle the account. Since it was not done, the plaintiff somewhere in the year 2017, sent a notice through her advocate, followed by the notice in the year 2018. As the notices were not responded to, another notice was issued for arbitration and dissolution of the firm in the year 2019. The grievance of the plaintiff was that the defendants created sham documents of sale of the firm's property on which, they had no legal right. This fraudulent transfer of the property constrained the plaintiff to issue public notice in the year 2020, coupled with registration of the FIR with the concerned police Page 10 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined station.
12. The suit, is filed in connection with the piece and parcel of land, structures thereof, bank balance and other movable and immovable properties situated in district Valsad. It is alleged by the plaintiff that the defendant no.2 in connivance with defendant nos.3 and 5, illegally signed and executed registered sale deed in relation to the property as detailed in the Schedule A in favour of defendant no.3, without authority, consent and against the interest of the firm and plaintiff in violation of law. The defendant no.3 is biological son of defendant no.5 and adopted son of the defendant no.2.
13. The plaintiff, therefore, prayed that defendant nos.2 to 5 acted in an arbitrary, illegal and mala fide manner and prejudicial to the interest of the firm by executing the sale deed dated 20.03.2020 registered at the office of the Sub-Registrar in respect of the properties in Schedule A. Further prayer is prayed to cancel and set aside it under the provisions of section 31 of the Specific Relief Act, 1963. Prayer is also to direct the defendant nos.2 and 4 to tender in Court all proof, complete duly audited accounts by the registered Chartered Accountant along with all the pass book, cheque books, Income tax returns etc. and relevant records in respect of the assets of defendant no.1 firm. Dissolution of the defendant no.1 firm is also prayed for.
14. During the pendency of the suit, defendant nos.2 and 4 passed away. The plaintiff, therefore, submitted an application, Exh.22 dated 22.03.2021 , inter alia, stating that the defendant no.2
- Shri Nirmalsinhji Mamubha Jadeja has passed away on 10.02.2021 and was a bachelor and had no issue and as per the information of the plaintiff, he had no heir or legal representative. According to the plaintiff, as per Order XXX Rule 4, the legal representative of the Page 11 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined deceased partner is not required to be joined. Subsequently, the defendant no.4 also passed away on 14.11.2022, which led to the filing of the application, Exh.51 dated 02.07.2023. In paragraph 2 of the application, it has been stated that the " heirs of the deceased defendant are not required to be brought on record in view of rule 4 of order 30 of Code of Civil Procedure, 1908." In paragraph 3, it is stated "that without prejudice to the rights of the legal heir of the deceased defendant No.4 to apply to be made a party in the suit under sub-rule 2 (a) of rule 4 of order 30 of CPC, the name of the deceased defendant No.4 may please be allowed to be struck off and deleted from the cause title of the plaint and anciliary application, if any." The prayer was to allow the plaintiff to strike off the name of the deceased defendant no.4 from the cause-title of the plaint and other applications. The record further reveals that on 21.07.2023, the learned Additional Senior Civil Judge, Vapi passed an order below Exh.51, allowing to delete the defendant nos.2 and 4 from the array of the respondents. Thus, the defendant nos.2 and 4 are deleted from the proceedings as party.
15. It is further pertinent to note that on 03.01.2023, the plaintiff submitted an application for passing preliminary decree under Order XX Rule 15 of the Code with following prayers:
"4. Prayer:
Thus, in view of the above, it is most humbly prayed that the Hon'ble Court may be pleased to:
a. Pass a preliminary decree declaring the proportionate shares of the parties and fix a day on which the partnership shall stand dissolved or be deemed to have been dissolved.
b. Direct the defendant No.1 and 5 to tender in Court all true, complete duly audited accounts, by registered chartered accountant along with all the pass book, cheque books, Income tax returns, pan card and relevant records in respect of assets of defendant No.1 firm."Page 12 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025
NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined
16. As per the endorsement dated 11.01.2023, the plaintiff has not pressed prayer 4(b) as much as, the surviving partners, i.e. defendant nos.2 and 4 were deleted and their heirs, if any, are not on record. The Trial Court, thereafter, has passed an order dated 29.09.2023, allowing application, Exh.52, ordering the drawing of the preliminary decree. Defendant no.1 was directed to be dissolved with a further direction to draw the preliminary decree. After the passing of the order, the Trial Court, heard the suit and passed the impugned judgment, formulating various issues in vernacular, free english translation would be thus:
(i) Whether the plaintiff proves that the partnership firm is the registered partnership firm?
(ii) Whether the plaintiff proves that the plaintiff has issued notice to the other partners to settle the accounts and dissolve the partnership firm as the partnership firm is not functional since long time?
(iii) Whether the plaintiff proves that the plaintiff has informed the partners for arbitration as per the partnership deed?
(iv) Whether the plaintiff proves that the property has been sold in favour of the defendant no.3 without the consent and knowledge of the plaintiff?
(v) Whether the plaintiff proves that the defendants have taken steps in breach of the conditions of the partnership deed?
(vi) Whether the plaintiff proves that there is a cause of action available to her?
The issue no.(i) was answered in affirmative and rest of the issues, namely, issue nos.(ii) to (vi) were answered in negative.
17. The issue and the grievances between the plaintiff on one hand and the defendant on the other, essentially revolve around the partnership deed, so also the power and authority of the defendant Page 13 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined no.2 to deal with the properties as per the covenant contained in the partnership deed. In view of the above, the point for determination by this Court is whether the defendants have committed a breach of condition of the partnership deed and whether the learned Judge was in error by deciding the issue that the plaintiff failed to prove the issuance of the notice to the partners to settle the accounts and dissolve the partnership firm.
18. Before adverting to the points for determination and the impugned judgment, it is pertinent to note that the learned counsels have made submissions and counter-submissions touching the legality and validity of the execution of the sale deed by the defendants, the authority of the partner to dispose of the property so on and so forth. The issue is raised about the maintainability of the suit in absence of the partners being party to the suit. It is argued by the learned counsel for the defendant no.3 that since the defendant nos.2 and 4 have been deleted from the array of the parties and the heirs having not been brought on the record, the suit would not be maintainable. Response offered by the plaintiff is that the suit or appeal would not abate in absence of substitution of the heirs and legal representatives and the death of the parties, would not have any impact on the suit. Perceptibly, no issue has been formulated in this behalf and this Court therefore, deems it appropriate not to delve further on the issue.
19. Adverting to the impugned judgment and the order, pertinently, the issue no.1, was decided in affirmative and for which, there is no contest for, defendant no.1 is a registered partnership firm.
20. Moreover, issue no.2, was regarding notice issued by the plaintiff to the other partners to settle the accounts and for Page 14 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined dissolving the partnership firm as the firm was non-functional since long. The issue no.3, was regarding plaintiff proving that the plaintiff has informed the partners for arbitration as per the partnership deed. The plaintiff except orally stating, has not produced any document to substantiate that notices were issued to the defendants to settle the accounts and to dissolve the partnership firm. The plaintiff has made a statement that since long, the partnership firm is not functioning and that she has informed the other partners to dissolve the partnership firm by issuing notices through her advocate. The partners were also informed about initiation of arbitration proceedings. In the cross-examination, when the plaintiff was confronted, the response of the plaintiff was that she is not aware as to whether her advocate has issued any notice to the defendant no.2. The learned Judge, took note of the fact that plaintiff is unaware about the factual aspects and she being not sure about the partnership firm having stopped functioning since when, let alone the details of the properties of the partnership firm. The plaintiff was also not aware about the amount invested in the partnership firm as well as whether the partnership firm is earning any profit or is suffering any loss. In the evidence by way of an affidavit, it is the case of the plaintiff that "after the death of partner No.(8) Kalpanakunvarba Parbatsinh Parmar in 1996 and death of partner No.(1) Pruthvirajji Raisinhji Jadeja in 1997, the activities of the firm stopped, and virtually the business came to a grinding halt. In course of time, partner No.3 also died, but the managing partners defendant No.2 and 4 did not take any action to regularise this and resume the business activities. I say and submit that as firm was not engaged in any business for quite a time, deponent and her relatives time and again tried to convince the managing partners to dissolve the firm and to settle the accounts....". Discernibly, the partnership firm stopped functioning in the year 1997 and in Page 15 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined absence of any evidence substantiating the issuance of any notice back then, it cannot be said that any error is committed by the learned Judge in deciding the issue nos.2 and 3, in negative.
21. Further adverting to issue no.4, that is, plaintiff proving that the property has been sold in favour of the defendant no.3 without the knowledge and consent of the plaintiff, it is pertinent to note that the plaintiff was confronted with the deed of partnership - Exhibit 68 and especially clause 11 contained therein and the plaintiff has conceded to the fact that clause 11 gives full right and authority to defendant no.2 - Nirmalsinhji Jadeja to sell the land, as he was administering the day-to-day functioning of the partnership firm. Hence, the learned Judge was of the opinion that the plaintiff failed to prove that defendant no.2 - Nirmalsinhji Jadeja had no authority or right to deal with the property and hence, the issue was decided against the plaintiff. In fact, clause 11 of the partnership deed in vernacular, free english translation, would read thus:
"The authority is given to Shri Nirmalsinhji Jadeja to sell the plots of the partnership firm and sign as a confirming party. The signatures and action taken by Shri Nirmalsinhji Jadeja on behalf of the partnership firm is acceptable to the partners. Authority also is conferred to Shri Nirmalsinhji Jadeja to deal with, sell and purchase land and properties on behalf of the partnership firm and also to execute the Agreement to Sell and Sale Deed."
22. Therefore, clause 11 of the partnership deed conferred full authority to the defendant no.2 - Nirmalsinhji Jadeja to deal with the immovable properties of the partnership firm on behalf of the partners and the dealings, if any, was acceptable and binding to the other partners. Resultantly, it could not be proved by the plaintiff Page 16 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined that the defendants have acted against and committed breach of the conditions contained in the partnership deed. Therefore, there is no error committed by the learned Judge in answering issue no.4 in negative and rightly so.
23. The issue was also raised regarding cause of action to the plaintiff and was answered in negative considering the provisions of the Contract Act and the Partnership Act. What weighed with the learned judge was the fact that the partnership firm has stopped functioning since the year 1997 and thereafter, no dispute was raised about the partnership firm. The learned Judge, was of the opinion that the plaintiff has failed to prove that any steps were taken by the plaintiff to make functional the partnership firm. Since the year 1997, the partnership firm has not been functioning for which, no steps were taken. It was only in the year 2020, the suit has been filed. The plaintiff has failed to bring any evidence and the burden cannot be shifted to the defendants and the plaintiff, cannot take advantage of it. Since the plaintiff was unable to prove her case, cannot take advantage of the defendants not entering into witness box. The suit by the plaintiff after such a long time seeking dissolution and for accounts or challenging the sale deed, cannot be accepted. Nothing has been pointed out to substantiate that the findings of the learned Judge are perverse or illegal and against the evidence. Hence, on the basis of material and evidence available on record, no error can be said to have been committed by the learned Judge in dismissing the suit.
24. Before concluding and for the sake of completeness, this Court, would also like to deal with the issue of maintainability of the suit and why the same, cannot be gone into at this stage.
25. After the hearing, on merits, was concluded, this Court, was of Page 17 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined the opinion that the issue revolves around the partnership deed and amongst the partners, and thus, the learned counsel were required to make their respective submissions. The plaintiff, now has urged that the Court had no jurisdiction and it has to go before the Commercial Court. As against this, the learned counsel for the defendant, has submitted that having accepted the order, the plaintiff cannot be permitted to approbate and reprobate. Also, the conferment of the jurisdiction, was by a judicial order.
26. At this stage, the judgment in the case of Union of India vs. Reliance Industries Limited reported in (2015) 10 SCC 213 is worth referring to. The Apex Court, did not entertain the attempt on the part of the applicant therein to reopen the question settled. Paragraphs 8, 9 and 22 of the said judgment are reproduced herein below for ready reference:
8. Shri Ranjit Kumar, learned Solicitor General of India argued before us that the partial consent award dated 14.9.2011 was without jurisdiction in that it was contrary to clause 34.2 of the PSC which stated that the PSC can only be amended if all the parties thereto by an agreement in writing amend it. Since ONGC which was a party to the PSC had not done so, the said final partial consent award was without jurisdiction. This being so, the seat of the arbitration cannot be said to be London and clause 33.12 of the PSC which made the "venue" London would continue to govern. Since the arbitration clause contained in the PSC is prior to 12.9.2012, the judgment in Bhatia International v. Bulk Trading S.A. & Anr., (2002) 4 SCC 105 would govern and consequently Part I of the Arbitration Act, 1996 would be applicable. He also stated that the judgment delivered on 28.5.2014 would not stand in his way notwithstanding that a review petition and a curative petition had already been dismissed. This was because, according to him, the issue raised being jurisdictional in nature, the doctrine of res judicata would have no application. He went on to read various provisions of the UK Arbitration Act, 1996 to further buttress his submission.
9. Dr. A.M. Singhvi, learned senior counsel, on the other hand vehemently opposed the arguments of Shri Ranjit Kumar, learned Solicitor General of India. According to him, the judgment dated 28.5.2014 being final inter partes binds the parties both by way of res judicata and as a precedent. According to him, the judgment unequivocally holds that on the very facts of this case Part-I of the Arbitration Act, 1996 would have no application. He further went on to demonstrate that the Union of India had already availed of the Page 18 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined very remedy sought under Section 14 and had invited a decision of the Permanent Court of Arbitration dated 10.6.2013 by which its objections to the appointment of Mr. Peter Leaver as Arbitrator were already rejected.
22. On the facts in the present case, it is clear that this Court has already determined both that the juridical seat of the arbitration is at London and that the arbitration agreement is governed by English law. This being the case, it is not open to the Union of India to argue that Part-I of the Arbitration Act, 1996 would be applicable.
A Section 14 application made under Part-I would consequently not be maintainable. It needs to be mentioned that Shri Ranjit Kumar's valiant attempt to reopen a question settled twice over, that is by dismissal of both a review petition and a curative petition on the very ground urged before us, must meet with the same fate. His argument citing the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613, that res judicata would not attach to questions relating to jurisdiction, would not apply in the present case as the effect of clause 34.2 of the PSC raises at best a mixed question of fact and law and not a pure question of jurisdiction unrelated to facts. Therefore, both on grounds of res judicata as well as the law laid down in the judgment dated 28.5.2014, this application under Section 14 deserves to be dismissed. It is also an abuse of the process of the Court as has rightly been argued by Dr. Singhvi. It is only after moving under the UNCITRAL Arbitration Rules and getting an adverse judgment from the Permanent Court of Arbitration dated 10.06.2013 that the present application was filed under Section 14 of the Arbitration Act two days later i.e. on 12.6.2013.
27. Apt would also be the judgment in the case of Kiran Devi vs. Bihar State Sunni Wakf Board (supra). Wakf board and the appellant therein were parties to the suit proceedings and objection was raised before the Civil Court to transfer the suit for adjudication by the Wakf Tribunal in terms of the provisions of sections 85 and 85-A of the Wakf Act, 1995. Order transferring the suit was challenged by the plaintiff by way of a revision before the High Court which came to be dismissed. The parties thereafter, went on trial and the Tribunal, dismissed the suit. Writ petition was filed against the said order and the High Court, set aside the judgment of the Tribunal with a direction to dispossess the appellant from the suit premises. The judgment of the High Court was challenged before the Apex Court and contention was raised about the maintainability which Page 19 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined was turned down by observing in paragraphs 15 and 16, thus:
"15. We have heard learned counsel for the parties and find that it is not open to the appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board and the appellant who then filed an application for transfer of the suit to the Wakf Tribunal. Though, in terms of Ramesh Gobindram, the Wakf Tribunal could not grant declaration as claimed by the plaintiff, but such objection cannot be permitted to be raised either by the Wakf Board or by the appellant as the order was passed by the Civil Court at their instance and was also upheld by the High Court. Such order has thus attained finality inter- parties. The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where plaintiff has invoked the jurisdiction of the Wakf Tribunal.
16. The argument raised by the learned counsel for the appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence, it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the appellant as well as by the Waqf Board. Thus, it is not conferment of jurisdiction by the plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties. The suit was accordingly decided by the Waqf Tribunal. We do not find that it is open to the appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the present case. Therefore, we do not find any merit in the first argument raised by the learned counsel for the appellant."
28. It is noteworthy that application Order VII Rule 11 of the Code was filed by the defendant no.4 on the ground that the defendant no.1 is a partnership firm and the plaintiff, has filed the suit in the capacity of the partner of the defendant no.1 firm. Stand was also taken that the suit is for dissolution and seeking accounts and the dispute is against the partnership deed against the defendants and is of commercial in nature and the Court has no jurisdiction. The plaintiff, on the application has put an endorsement that the plaintiff has no objection if the suit is transferred to the Commercial Court. The application was heard and vide order dated 25.08.2022, the Page 20 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025 NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined application, Exh.32, came to be rejected on the ground that the application is without any legal basis and mere reference of the agreement of partnership firm, that by itself cannot be construed that the Court has no jurisdiction. It is thereafter that the order was passed and the application, Exh. 32 came to be rejected by judicial order. Therefore, when there is a judicial order passed and has been accepted by both the parties and they having acted accordingly, it would be impermissible for the plaintiff now to turn around and say that the Court had no jurisdiction. Also, in neither of the appeals there is a challenge to the order dated 25.08.2022. In the absence of any challenge to the binding judicial order, it would be impermissible for the plaintiff now to take such a contention that the suit was not maintainable.
29. While concluding, it is required to be noted that the application was filed seeking passing of the preliminary decree, declaring the share of the parties and fixing the date of dissolution of the partnership firm. Another prayer, was direction to the defendant nos.1 and 5 to tender in Court all the true, complete duly audited accounts, by registered Chartered Accountant along with all the passbook, cheque books, income-tax return etc. of the defendant no.1 firm. The endorsement on the application, Exh.52 by the plaintiff suggest that the prayer 4(b) was not pressed at that juncture. The Court, has passed preliminary decree in connection with first prayer and recorded in the order that since the prayer 4(b) in the application dated 03.07.2023 is not pressed, no order is passed. In the First Appeal no.3375 of 2024, in paragraph 1, the plaintiff stated thus:-
"1. Being aggrieved by the judgment, order and decree dated 29.09.2023 below Exh.52 passed by learned Additional Senior Civil Judge, Vapi, Dist. Valsad in Special Civil Suit No.21 of 2020 to the extent that it rejects other prayers of application Exh.52 except prayer for dissolution of partnership firm..."Page 21 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025
NEUTRAL CITATION C/FA/719/2024 CAV JUDGMENT DATED: 11/07/2025 undefined Challenge to the impugned order in First Appeal no.3375 of 2024 to the extent that it rejects the other prayers of application, Exh.52, is against the stand taken by the plaintiff herself on record. It was the plaintiff, who did not press the said prayer and in the meantime, the suit itself got dismissed. Therefore, when the plaintiff herself has not pressed the said prayer, challenge to the impugned order, is misplaced and cannot be entertained.
30. In light of the above discussion, this Court, is of the opinion that the suit has rightly been dismissed. As the First Appeal challenging the impugned judgment is not entertained, the limited challenge to the order and decree dated 29.09.2023 in the subsequent First Appeal, does not merit acceptance and is hereby dismissed. No order as to costs.
31. Connected Civil Applications, if any, stand disposed of.
32. Record & proceedings, if any received, be sent back to the concerned Court forthwith.
(SANGEETA K. VISHEN,J) (NIRAL R. MEHTA,J) BINOY B PILLAI Page 22 of 22 Uploaded by BINOY B PILLAI(HC00183) on Fri Jul 18 2025 Downloaded on : Fri Jul 18 23:22:16 IST 2025