The Bombay High Court allowed an appeal taking exception to the Judgment and Order passed by the Additional Judge, Pune, rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (CPC). The Court observed that when Plaintiff claims that it is a registered partnership firm, the same has to be accepted at this stage considering the application under Order VII Rule 11 of CPC.
Brief Facts:
Plaintiff had filed the suit on the basis that Plaintiff No.1 and Plaintiff No.2 are partners of Gangotri Developers a registered partnership firm. In paragraph 4 of the plaint, there are averments to the effect of how the Plaintiffs claim to be admitted as partners, and there are positive averments that the Registrar of Firms has been informed about the same and presently, i.e., when the suit was filed, Plaintiff No. 1 and Plaintiff No. 2 were the existing partners of the firm. There is also an averment in the plaint that from 31.12.2009, the Plaintiff firm was continuing with two partners, namely, Plaintiff No.1 and Plaintiff No.2, and after Plaintiff No.2 died, Plaintiff No.2A came to be added as a partner. The dispute relates to accounts and declarations.
It is the Plaintiffs’ case that the erstwhile partner of the firm, Defendant No.1 in collusion with Defendant No.2 to Defendant No.4 had filed a suit behind the Plaintiffs’ back, and though the firm was shown as Defendant No.1 in the suit, the summons was never served upon the firm and a consent decree was obtained by which Defendants herein grabbed properties of the firm.
Hence, a Special Civil Suit was filed for declaration and cancellation or setting aside the fraudulent decree and the suit is also for a permanent injunction against the defendants.
The Trial Court concluded that Plaintiffs’ firm M/s. Gangotri Developers was not existing in the records of the Registrar of partnership firms and the Plaintiffs did not produce any document to show that Plaintiff No.1 and Plaintiff No.2 were mentioned as partners in the Register of Firms on the date the suit was filed, and hence the suit was barred under the provisions of Section 69 of the Indian Partnership Act, 1932.
Contentions of the Respondent:
The learned counsel for the Respondent argued that the suit was not maintainable in view of provisions of Section 69 (2) of the Partnership Act.
Observations of the Court
The Court observed that an application for rejection of the plaint under Order VII Rule 11 of CPC can be entertained only if the plaint on the face of it discloses that the suit is barred by any law in force, and not by referring to materials that are sought to be placed on record by the defendant in answer to the plaint. In case, the defendant requires to refer to any material other than the plaint, like in this case has happened; certainly, such an exercise is permissible by way of leading evidence after framing issues and satisfying the court about the non-maintainability of the suit. But the same exercise cannot be done under Order VII Rule 11(d) of CPC.
Further, the Court remarked that when Plaintiff claims that it is a registered partnership firm, the same has to be accepted at this stage considering the application under Order VII Rule 11 of CPC. The issue as to whether the firm was registered or not is a mixed question of law and fact to be established by adducing necessary evidence in that regard.
The decision of the Court:
The Bombay High Court, allowing the appeal, set aside the impugned order passed by the Trial Court rejecting the plaint.
Case Title: M/s. Gangotri Developers & Anr. vs Shri Ajit Anantrao Butte Patil
Coram: Hon’ble Justice K. R. Shriram and Hon’ble Justice Rajesh S. Patil
Case no.: FIRST APPEAL NO. 143 OF 2023
Advocate for the Appellant: Ms. Madhavi Ayyappa
Advocate for the Respondent: Mr. Anil Sakhare
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