Bombay High Court
Hitendra Purushottam Kadu And ... vs M/S Safal Developers, Thr. ... on 22 June, 2017
Bench: Dr. Shalini Phansalkar-Joshi
2206 CRA 89/2016 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
CIVIL REVISION APPLICATION NO. 89/2016
1] Shri Hitendra Purushottam Kadu,
Age 41 years, Occu: Agriculturist,
2] Smt. Nisha Umesh Kadu,
Age 37 years, Occu: Housewife,
Both R/o. Dighori, Plot No.43,
Pandurang Gawande Layout,
Behind Khamla Telephone Exchange,
Nagpur. PETITIONERS
.....VERSUS.....
M/s. Safal Developers,
Through its partner Shri
Prakash Santosh Mohod,
R/o. Sundarban Layout, H.I.G. 5,
Narendra Nagar, Nagpur. RESPONDE NT
Shri Raju Dhoble, counsel for the petitioners.
Shri Amit Bhave, counsel for respondent.
CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.
DATE : JUNE 22, 2017.
ORAL JUDGMENT :
A short question is raised for consideration in this
revision, which is preferred by the original defendants challenging
2206 CRA 89/2016 2 Judgment
the order dated 29/07/2016 passed by the Court of 7 th Joint Civil
Judge (Sr.Dn.), Nagpur in Special Civil Suit No.934/2007, thereby
rejecting the application filed by the petitioners/defendants under
the provisions of Order VII Rule 11 CPC. Hence the revision is being
decided at the stage of admission itself.
2] In a suit filed by respondent for specific performance of
contract, the said application was filed by the defendants
contending inter alia that though the suit was filed for specific
performance of contract for enforcing the alleged rights arising from
the contract entered into between the plaintiff firm and defendants,
there was not a single document produced on record, as admitted
by the plaintiff himself, to show that his partnership firm was
registered. Hence, it was submitted that a suit by unregistered
partnership firm being barred by law, the suit needs to be dismissed
in view of the provisions of Section 69 of the Indian Partnership Act
(hereinafter will be referred to as "Act" for convenience).
3] It is submitted by learned counsel for petitioners that
this application was however dismissed by the trial court ignoring
2206 CRA 89/2016 3 Judgment
the admission given by the plaintiff in his cross-examination that he
has not produced on record any document to show that partnership
firm was registered. It is urged that considering the very admission
given by plaintiff himself, learned trial court should have held that
the suit is barred by law in view of the provisions of Section 69 of
the Act and rejected the plaint at the very stage itself. According to
him, impugned order passed by learned trial court, therefore,
rejecting his appilcation filed under Order VII Rule 11 CPC, being
not just, legal and correct, it needs to be quashed and set aside.
4] Per contra, learned counsel for respondent/plaintiff has
supported the impugned order, by pointing out that no such
admission was given by the plaintiff in his cross-examination that
the partnership firm was not registered; he has only stated that he
has not placed on record any document showing the registration of
the partnership firm. It is submitted that, in this revision the
respondent has produced on record the xerox copy of the
registration certificate of partnership firm, and in view thereof, the
matter needs to be sent back to the trial court, without making any
interference in the impugned order of the trial court.
2206 CRA 89/2016 4 Judgment
5] Learned counsel for petitioners, however, submits that
in the xerox copy of the registration certificate, which is produced
by the respondent in this revision, the name of the partnership firm
is mentioned as "Safal Land Developers, Promoters and Builders",
whereas in the plaint the name of the partnership firm is shown as
"M/s. Safal Developers through its Partner Prakash Santoshrao
Mohod". It is urged that the address of the partnership firm given in
the registration certificate is also different from the one given in the
plaint, and therefore, it cannot be accepted that this registration
certificate is of the same partnership firm, on whose behalf the suit
was filed. It is also submitted that there was absolutely no averment
made in the plaint that the said partnership firm was registered.
Hence, it is urged that in the absence of any such averment, it
cannot be accepted that the partnership firm was registered and
hence in view of Section 69 of the Act, the suit was not
maintainable.
6] In my considered opinion, if the cross-examination of
the plaintiff is perused, it can be easily seen that he has specifically
denied the suggestion that his partnership firm is not registered
2206 CRA 89/2016 5 Judgment
with the Registrar Office. The only admission given by him is that
he has not placed on record any document to show that it was a
registered partnership firm and he was the partner of the said firm.
It is a different thing to say that partnership firm is not registered
and another thing to say that no document is produced to show that
it is a registered partnership firm and further denying the
suggestion that it was not a registered partnership firm. In view
thereof, the document, which is now produced on record by the
respondents showing that one partnership firm in the name of
"Safal Land Developers, Promoters and Builders", is registered with
the Registrar of Firm in the year 1999 itself, needs to be taken into
consideration.
7] As regards the dispute raised, that the name of the said
partnership firm in the registration certificate is different from the
name of the partnership firm stated in the title clause of the suit
filed by the respondents before the trial court, it needs to be
decided on the basis of evidence to be adduced before the trial
court as to whether the registration certificate is of plaintiff's
partnership firm or otherwise. Ultimately it is for the trial court to
come to the conclusion in one way or other as to whether this
2206 CRA 89/2016 6 Judgment
registration certificate pertains to the partnership firm of the
plaintiff or not. At this stage, the said certificate cannot be discarded
on that ground especially when, the address of the plaintiff
mentioned in the plaint is of the partner of the said partnership
firm, whereas the address mentioned in the registration certificate is
of the principal place of the office of the said partnership firm, and
therefore, both these addresses are bound to be different.
8] Hence, having regard to these facts on record, in my
considered opinion, no interference is warranted in the impugned
order of the trial court, rejecting the petitioners' application for
rejection of the plaint under Order VII Rule 11 CPC on the count
that it is barred by the provisions of Section 69 of the Act.
9] In my considered opinion, the proper way to resolve
this issue would be to direct the trial court to frame necessary issue
as to whether the suit is barred by law in view of the provisions of
Section 69 of the Act and to decide the said issue according to law.
10] At this stage, learned counsel for petitioners points out
2206 CRA 89/2016 7 Judgment
that the application made by the petitioners under Order XIV Rule 5
CPC before the trial court on 29/03/2016 for framing such issue is
already dismissed by the trial court. However, perusal of the order
passed below the said application by the trial court on 29/03/2016
reveals that the application to that effect was rejected considering
that there was no averment in the plaint that the partnership firm is
registered and no document was produced on record to show that it
was registered and hence it was held that in the absence of
pleadings, there was no necessity for framing such issue.
11] Now in view of the document, which is produced on
record by the respondent/plaintiff showing that his firm with the
name of Safal Land Developers, Promoters and Builders is
registered as a partnership firm and in the registration certificate
the name of respondent Prakash Santosh Mohod is mentioned as
partner of that partnership firm, it becomes necessary to direct the
trial court to frame the issue to that effect and if found fit to decide
the said issue as preliminary issue. It will be in the discretion of the
trial court.
2206 CRA 89/2016 8 Judgment
12] Accordingly, this revision is disposed of as dismissed,
with direction to the trial court to frame necessary issue about
maintainability of the suit in view of the provisions of Section 69 of
the Indian Partnership Act. It is left to the discretion of the trial
court to decide whether the said issue should be tried as preliminary
issue or otherwise, especially considering the fact that evidence is
already recorded in the suit and the suit is part heard. With this
direction, revision stands disposed of as dismissed with no order as
to costs.
JUDGE
Yenurkar
