Delhi High Court
Asha Gupta vs Inder Singhal & Ors. on 16 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 317/2018
% 16th April, 2018
ASHA GUPTA ..... Appellant
Through: Mohd. Shariq and Mr. Wasim
Alam, Advocates.
versus
INDER SINGHAL & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 14616/2018 (Exemption)
Exemption allowed subject to just exceptions.
CM stands disposed of.
RFA No. 317/2018 & CM No. 14615/2018 (stay)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the defendant no.2 in the
suit impugning the judgment of the trial court dated 6.1.2018 whereby
the trial court has decreed the suit for recovery of Rs.18,10,000/- along
with interest at 9% per annum by applying Order XII Rule 6 CPC i.e
judgment on admission.
2. The facts of the case are that the respondent no.1/plaintiff
filed the subject suit against three defendants. Defendant no.1 is the
partnership firm M/s Saimax Décor, and of which firm the
appellant/defendant no.2 and Ms. Alka Maheshwari respondent
no.3/defendant no.3, were partners.
3. As per the suit plaint, respondent no.1/plaintiff was
approached for giving of loan to the partnership firm because
partnership firm wanted to make a construction on its showroom at
805, Kotla Mubarakpur, Opposite Defence Colony, Delhi.
Respondent no.1/plaintiff paid a total amount of Rs.26,10,000/-. Rs.
14,50,000/- was paid by RTGS on 14.12.2013 from the respondent
no.1/plaintiff's account. A sum of Rs.6,00,000/-and Rs.5,60,000/- was
paid by RTGS on 16.12.2013 from the account of the wife of the
respondent no.1/plaintiff Smt. Alka Singhal. Since only a sum of
Rs.8,00,000/- was repaid, therefore for recovery of the balance amount
the subject suit was filed.
4. Appellant/defendant no. 2 and respondent no. 3/defendant
no. 3, partners of the respondent no. 2/defendant no. 1 firm contested
the suit by filing their written statements. In the written statement of
the appellant/defendant no.2 it is not disputed that the loan was given
by the respondent no.1/plaintiff to the partnership firm, however the
suit was prayed to be dismissed because the case of the
appellant/defendant no. 2 was that in terms of the understanding
between the appellant/defendant no.2 and respondent no. 3/defendant
no. 3 entered into, at the time of dissolution of the firm, the liability
towards the respondent no.1/plaintiff had been taken over by the
respondent no. 3/defendant no. 3.
5. It was also contended by the appellant/defendant no. 2
that she had already made payment to the respondent no. 3/defendant
no. 3 in terms of the dissolution and therefore the liability is only of
the respondent no.3/defendant no.3.
6. Trial court has decreed the suit by observing that it is
undisputed that loan was indeed granted to the partnership
firm/respondent no. 2/defendant no.1,of which the appellant/defendant
no. 2 and respondent no. 3/defendant no. 3 were partners, and
therefore, every partner is liable for all the liabilities of the partnership
firm.
7. In my opinion, no fault can be found in the impugned
judgment of the trial court, inasmuch as, the liability of a partnership
firm is the liability of all the partners. An inter se arrangement
between partners to discharge liability of the third person does not
bind the third person unless the third person is also a party to the inter
se arrangement between the partners. In the present case it is not the
case of appellant/defendant no.2 that the respondent no. 1/plaintiff was
a party to this arrangement between the appellant/defendant no. 2 and
the respondent no. 3/defendant no. 3. Therefore, even for the sake of
arguments if we take that in terms of the inter se arrangement between
the appellant/defendant no.2 and the respondent no.3/defendant no.3
till the loan amount to the respondent no.1/plaintiff had to be cleared
by the respondent no. 3/defendant no. 3, the said arrangement will not
bind the respondent no. 1/plaintiff.
8. I may note that the object of law is that since a
partnership firm is not a legal entity all the partners are jointly and
severely liable for dues of the partnership firm and the partners cannot
arrive at an inter se arrangement to restrict the liability of the
partnership firm to only one partner qua a third person to the
partnership firm. If inter se arrangements between partners are
allowed to be fastened upon third persons then grave frauds will be
perpetuated because partners can always agree that the entire liability
of a firm will be the liability of an insolvent partner or a partner who
has no assets, and which will have the effect that the third person
claim/entitlement from all the partners of the partnership firm will be
defeated. The relevant paras of the trial court for decreeing the suit
read as under:-
"7. In case of Charanjit Lal Mehra and Ors. vs Smt. Kamal Saroj
Mahajan and Anr., AIR 2005 SC 2765, the Hon'ble Supreme Court has
held that order 12 Rule 6 CPC is enacted for the purpose and in order to
expedite the trials and if there is any admission on behalf of the
defendants or an admission can be inferred from the facts and
circumstances of the case without any dispute of the matter, then in such a
case, in order to expedite and dispose of the matter such admission can be
acted upon.
8. Perusal of the record shows that defendant no. 3 in her written
statement has admitted the fact that in the month of December 2013,
for the purpose of sale/business activities of the above said kitchen
products of Mettas Stainless Steel, the defendants wanted to construct
a showroom at 805, Kotla Mubarakpur, Opp. Defence Colony, New
Delhi-03 and for the that purpose the defendants alongwith the
husband of defendant no. 3 approached and requested the
plaintiff to help them financially for the purpose of construction of the
said showroom at the said address and asked for a total amount of Rs.
26,10,000/- for a period of one year and that the plaintiff acceded to the
above said request of the defendants and gave them an amount of
Rs. 14,50,000/- by way of RTGS on 14.12.2013 from his account
and Rs. 6,00,000/- and Rs.5,60,000/- by way of RTGS on 16.12.2013
from the account of his wife. Defendant no. 3 further admitted the fact of
repayment of part amount of Rs. 8 lakhs to the plaintiff out of total amount
of Rs. 26,10,000/- till date.
Record also shows that defendant no. 2 has also not specifically
denied the averments of the plaint and shifted his burden on the
shoulder of defendant no. 3. She stated that alleged loan was
taken by defendant no. 3 through her husband and the payment
thereof have always been rooted through defendant no. 3 via her husband
and at the time of dissolution of defendant no. 1 firm, the balance
payable amount was already taken by defendant no. 2 for making it paid to
the concerned party.
9. The relevant provisions of The Partnership Act 1932 are as under:-
Section 25. Liability of a partner for acts of the firm:-
Every partner is liable, jointly with all the other partners and also
severally, for all the acts of the firm done while he is a partner.
Section 72. Mode of giving public notice-
A public notice under this Act is given-
(a)........
(b) in any other case, by publication in the Officials Gazette and
in at least one vernacular newspaper circulating in the district
where the firm to which it relates has its place or principal
place of business.
10. Plaintiff filed suit against defendants for recovery of Rs.
18,10,000/- Defendant no. 2 & 3 stated in their WS that their
partnership has been dissolved on 16.02.2015 and is no more in existence
thereafter. Perusal of the record shows that plaintiff gave the defendants
an amount of Rs. 14,50,000/- by way of RTGS on 14.12.2013 from
his account; and Rs. 6 lakhs and Rs.5,60,000/- by way of RTGS on
16.12.2013 from the account of his wife Smt. Alka Singhal, thus,
defendants were given loan much before the dissolution of their
partnership firm." (underlining added)
9. In view of the aforesaid discussion there is no merit in the
appeal. Dismissed.
APRIL 16, 2018/ib VALMIKI J. MEHTA, J
