Bombay High Court
Magic Properties Pvt. Ltd. And Ors vs Utsav Shriram Gupta And Ors on 7 November, 2023
Bench: Amit Borkar
2023:BHC-AS:34411
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SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8715 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Rahul Ramesh Modi & Ors ... Respondents
WITH
WRIT PETITION NO.8716 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Saroj Shriram Gupta & Ors ... Respondents
WITH
WRIT PETITION NO.8712 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Utsav Shriram Gupta & Ors ... Respondents
WITH
WRIT PETITION NO.8651 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Rajeshwari Ramesh Modi & Ors ... Respondents
WITH
WRIT PETITION NO.8711 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Ketan Dhirajlal Barai & Ors ... Respondents
1
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WITH
WRIT PETITION NO.8916 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Ekta Ankit Agarwal & Ors ... Respondents
WITH
WRIT PETITION NO.8717 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Rohit Ramesh Modi & Ors ... Respondents
WITH
WRIT PETITION NO.12679 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Ramesh Kedarmal Modi & Ors ... Respondents
WITH
WRIT PETITION NO.12678 OF 2022
M/s Magic Properties Pvt. Ltd & Ors ... Petitioners
V/s.
Ankita Agarwal & Ors ... Respondents
Mr. Atul Damale, Sr. Advocate a/w Ms. Angeline
Rodrigues a/w Ms. Payal Vardhan & Akanksha Kadam
i/by Ms. Kranti S. Anand, for Peititoners.
Mrs. Suananda Kumbhat a/w Mr. Kunal Kumbhat, for
Respondent No.1.
Mr. C. D. Mali, AGP for State/Respondent.
Mr. Shriram Gupta, P. A. of Respondent No.1 in WP
Nos.8916/2022, 8716/2022 & 8712/2022.
2
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CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 7, 2023
P.C.:
1. Since common questions of law are involved in all the writ
petitions and parties are the same, this common judgment disposes
of all writ petitions.
2. Respondent No.1 filed commercial summary suits for
claiming the amount as follows:
Writ Petition Summary Suit Notice & BOE Claim amount
No. No. dishonour date
12678 of 2022 28 of 2021 30/06/2020 43,70,363
8916 of 2022 24 of 2021 23/06/2020 23,57,633
8711 of 2022 26 of 2021 10/12/2020 44,37,857
8715 of 2022 16 of 2021 13/11/2020 31,84,346
8651 of 2022 18 of 2021 13/11/2020 51,65,598
12679 of 2022 30 of 2021 13/11/2020 75,10,534
8717 of 2022 31 of 2021 13/11/2020 11,87,839
8716 of 2022 23 of 2021 23/06/2020 56,75,784
8712 of 2022 22 of 2021 23/06/2020 24,49,755
3. According to respondent No.1 (plaintiff), defendant No.1 is a
registered partnership firm of which defendant Nos.3 to 13 are the
partners. Petitioners Nos.1 and 2 are defendants Nos. 5 and 8, and
petitioners Nos.3 and 4 are defendants Nos.14 and 15 in the suit.
According to him, various amounts, as mentioned below, were
advanced to defendant No.1/firm. The loan amount and the date
of disbursed of the loan as mentioned in the suit:
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Writ Petition Summary Suit Date of loan Loan amount
No. No. disbursed
12678 of 2022 28 of 2021 29/03/2016 25,00,000
8916 of 2022 24 of 2021 09/02/2010- 13,50,000
04/12/2012
8711 of 2022 26 of 2021 02/04/2014 25,00,000
8715 of 2022 16 of 2021 02/05/2014 & 19,00,000
09/02/2018
8651 of 2022 18 of 2021 17/10/2023 & 30,00,000
23/07/2015
12679 of 2022 30 of 2021 30/06/2014 & 31,00,000
13/07/2015 &
08/02/2018
8717 of 2022 31 of 2021 05/08/2014 7,00,000
8716 of 2022 23 of 2021 18/01/2010 & 32,50,000
04/12/2012
8712 of 2022 22 of 2021 18/01/2012 & 14,00,000
04/12/2012
4. According to the plaintiff, defendant No.1 made part
payment of the amounts as mentioned in the suit, which are as
follows:
Writ Petition Summary Suit Part-payment
No. No.
12678 of 2022 28 of 2021 3,75,000+ 25,000
8916 of 2022 24 of 2021 2,02,500 + 13,500
8711 of 2022 26 of 2021 (P+I)
8715 of 2022 16 of 2021 1,35,000 & 9,000
8651 of 2022 18 of 2021 4,50,000 + 30,000
12679 of 2022 30 of 2021 2,40,000 + 20,000
8717 of 2022 31 of 2021 1,05,000
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8716 of 2022 23 of 2021 4,87,500 + 32,500
8712 of 2022 22 of 2021 2,10,000 + 14,000
5. Towards acknowledgement of balance liability, defendant
No.1 issued various cheques, and the last cheques and dates of
dishonoured cheques are as follows:
Writ Petition Summary Date of Last Amount Date of
No. Suit No. Cheque dishonour
12678 of 2022 28 of 2021 30/09/2017 21,25,000 29/12/2017
8916 of 2022 24 of 2021 02/05/2017 11,47,500 27/07/2017
8711 of 2022 26 of 2021 31/01/2018 28,95,634 25/04/2018
8715 of 2022 16 of 2021 31/07/2020 7,56,000 20/10/2020
8651 of 2022 18 of 2021 31/07/2020 25,20,000 20/10/2020
12679 of 2022 30 of 2021 31/07/2020 13,44,000 20/10/2020
8717 of 2022 31 of 2021 31/07/2020 5,69,625 20/10/2020
8716 of 2022 23 of 2021 02/05/2017 29,12,333 27/07/2017
8712 of 2022 22 of 2021 02/05/2017 27,62,500 27/07/2017
6. According to the plaintiff, defendant No.1 issued the last bills
of exchange amount as follows:
Writ Petition No. Summary Suit The last bills of exchange
No. amount
12678 of 2022 28 of 2021 21,25,000
8916 of 2022 24 of 2021 2,50,000 & 5,00,000 &
1,00,000 & 5,00,000
8711 of 2022 26 of 2021 25,00,000
8715 of 2022 16 of 2021 9,00,000 & 10,00,000
8651 of 2022 18 of 2021 30,00,000
12679 of 2022 30 of 2021 6,00,000 & 5,00,000 &
5,00,000 & 15,00,000
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8717 of 2022 31 of 2021 7,00,000 dated 05/08/2014
8716 of 2022 23 of 2021 2,50,000 & 3,50,000 &
1,50,000 & 5,00,000 &
10,00,000 & 7,50,000
8712 of 2022 22 of 2021 3,00,000 & 2,00,000 &
1,50,000 & 7,50,000
7. On refusal of defendant No.1, the plaintiff issued notices as
follows:
Writ Petition No. Summary Suit No. Notice and BOE
dishonour date
12678 of 2022 28 of 2021 30/06/2020
8916 of 2022 24 of 2021 23/06/2020
8711 of 2022 26 of 2021 10/12/2020
8715 of 2022 16 of 2021 13/11/2020
8651 of 2022 18 of 2021 13/11/2020
12679 of 2022 30 of 2021 13/11/2020
8717 of 2022 31 of 2021 13/11/2020
8716 of 2022 23 of 2021 23/06/2020
8712 of 2022 22 of 2021 23/06/2020
8. Despite the issuance of notices, defendant No.1 failed to pay
the amount and, therefore, the original plaintiff has filed
commercial summary suits referred to above.
9. The liability pleaded in the suit against the petitioner is that
petitioners Nos.5 & 8, being partners of defendant No.1, and
defendant Nos.14 & 15, being directors of defendant Nos.5 & 8,
are liable for the liability of defendant No.1/partnership firm. The
Trial Court granted conditional leave to the petitioner on deposit
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of the amount as follows:
Writ Petition No. Summary Date of Conditional
Suit No. conditional leave amount
leave
12678 of 2022 28 of 2021 05/07/2022 21,00,000
8916 of 2022 24 of 2021 05/05/2022 11,34,000
8711 of 2022 26 of 2021 06/05/2022 28,95,634
8715 of 2022 16 of 2021 04/05/2022 17,56,000
8651 of 2022 18 of 2021 06/05/2022 25,20,000
12679 of 2022 30 of 2021 06/05/2022 28,44,000
8717 of 2022 31 of 2021 06/05/2022 5,95,000
8716 of 2022 23 of 2021 05/05/2022 27,30,000
8712 of 2022 22 of 2021 04/05/2022 11,76,000
10. The petitioners have, therefore, filed present writ petitions
challenging the order passed by the Trial Court granting
conditional leave on deposit of the amount mentioned in the
impugned order.
11. Learned Senior Advocate, on behalf of petitioners, submitted
that the defendants had denied their status as partners of
defendant No.1. However, the Trial Court construed such denial as
an admission of the petitioners' status as partners of defendant
No.1 and, therefore, the impugned order deserves to be quashed
and set aside. It is submitted that petitioner Nos.1 & 2 had retired
from defendant No.2 with effect from 1 April 2015. The extract of
the register of forms indicates that such an entry was made on 25
April 2017. It is further submitted that defendants Nos.14 & 15
become directors of defendants Nos.5 & 8 in the year 2019, i.e.
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after the date of transactions; hence, they are not liable.
12. Per contra, learned, Advocate for respondent No.1/original
plaintiff submitted that petitioners Nos.1 & 2 were partners of
defendant No.1 firm on the date of receipt of amount from plaintiff
and thereafter, on the date of issuance of cheques towards an
acknowledgement of liability. The retirement of petitioner Nos.1 &
2 having not been notified under Section 32 (3) of the Indian
Partnership Act, 1932, such retirement is not binding on the third
parties. Therefore, petitioner Nos.1 & 2 is liable for the amount
paid t to the partnership firm being partners of defendant
No.1/firm.
13. On consideration of submissions made on behalf of both
sides, in my opinion, no interference in the impugned order is
called for.
14. In his writ petition, the petitioner has made a positive
statement in paragraph 7 that petitioner Nos.1 & 2 have retired
with effect from 1 April 2015. Such a statement amounts to an
admission of the fact that the petitioners were partners of
defendant No.1/firm on relevant dates. Therefore, unless the
decision of retirement is published under Section 32 (3) of the
Indian Partnership Act, 1932 and unless the creditors, retired
partners agree to a waiver of the right to recover an existing
partner, a retiring partner would continue to be liable for the
liability of the partnership for the transaction when the retiring
partners were partners of the partnership firm.
15. On perusal of the relevant dates mentioned above, in my
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opinion, petitioners Nos.1 & 2 prima facie appear to be partners on
the relevant dates and, therefore, are liable for partnership dues.
It is the creditor's choice against whom he wants to proceed, i.e.,
against the partnership firm or the rest of the partners.
16. In so far as petitioner Nos.3 & 4 are concerned. Prima facie,
they became directors of the partnership firm in 2019. Even
otherwise, petitioners Nos.1 & 2 are the companies registered
under the provisions of the Companies Act, 2013, and petitioners
Nos.3 & 4 are the directors of such companies. It is, therefore, not
proper to direct the directors of the company personally to pay the
amount of liability of partnership dues of which the company is a
partner.
17. Learned Advocate for the plaintiff, on instructions of the
plaintiff who is present in the Court, states that defendants Nos.14
and 15 shall be deleted from the array of defendants in all the
suits and Commercial Suit No.26 of 2021, Defendant Nos.14, 15
and 19 shall be deleted from the array of defendants. The
statement is accepted.
18. In view of the aforesaid reasons, no interference in the
impugned order is called for.
19. All the writ petitions are, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
