Gujarat High Court
Manjulaben Rajnikant Mehta vs Jay Developers, A Partnership Firm, ... on 11 November, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/14222/2025 ORDER DATED: 11/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14222 of 2025
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MANJULABEN RAJNIKANT MEHTA & ORS.
Versus
JAY DEVELOPERS, A PARTNERSHIP FIRM, THROUGH ITS
PARTNERS DHAVAL MUKESHBHAI MEHTA, & ANR.
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Appearance:
MR KISHAN V PATEL(10225) for the Petitioner(s) No. 1,2,3
MR. JAIMIN R DAVE(7022) and MS. MANVI DAMLE for the
Respondent(s) No. 1
MR. YASH B SIKKA(17310) for the Respondent(s) No. 1
MS HIRVA R DAVE(10742) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 11/11/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. Having heard the learned counsels for the parties and
perused the record, pertinent is to note that in the present
petition, the petitioners (three in number) invoke
extraordinary supervisory jurisdiction of this Court under
Article 227 of the Constitution of India seeking for setting
aside of the order dated 17.07.2025 passed by the
Commercial Court in rejecting the application of the
petitioners under Order 1 Rule 10 read with Section 151 of
the Code of Civil Procedure with the prayer for their
impleadment in the suit as defendants.
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C/SCA/14222/2025 ORDER DATED: 11/11/2025
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2. The contention in the application under Order 1 Rule 10
CPC on record is that the applicants are partners of the
partnership firm named as Jay Developer, which has instituted
the Commercial Civil Suit No.29 of 2024 through one of its
partner, namely Dhaval Mukeshbhai Mehta. It is contended
that all partners are members of the same family and the
partnership firm was a partnership at will.
3. It is further stated therein that by way of a General
power of attorney, power was given to two persons, namely
Bipin Himatlal Mehta and Nirav Mukeshbhai Shah to perform
day to day working of the partnership firm as also to manage
any bank account related issues. Both the above noted
persons were not partners of the partnership firm.
4. It seems that another General power of attorney was
executed on 24.09.2014 in favour of three persons, namely
Bipin Himatlal Mehta, Nirav Mukeshbhai Shah and one
Chandrikaben Bipinbhai Mehta. Out of three, only
Chandrikaben Bipinbhai Mehta was partner of the partnership
firm.
5. It further seems that some dispute arose between the
partners about the performance of the day to day working and
management of the bank account by the Power of attorney
holders. As a result of which, the petitioners sent a legal
notice to the power of attorney holders initiating them about
withdrawing their consent for giving power in their favour.
The said legal notice dated 03.01.2022 was also forwarded to
the bank and the bank had proceeded to debit freeze the
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C/SCA/14222/2025 ORDER DATED: 11/11/2025
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account of the firm on the same day, i.e. 03.01.2022. It seems
that the respondent herein wrote to the bank for defreezing of
the account for the purpose of management of the affairs of
the partnership firm, which was refused by the bank on
01.02.2022.
6. It is stated in the application seeking impleadment of the
petitioners as defendants in the suit that one of the power of
attorney holders namely, Mr.Bipinbhai Himatlal Mehta had
filed Regular Civil Suit No.131 of 2022 on 15.06.2022 against
the bank and others seeking a declaration that the power of
attorney holders had authority to operate the bank account
and prayed for defreezing of the bank account of the firm. The
Exhibit '5' (interim application) filed by the plaintiff therein
was rejected on 14.02.2023 and, thereafter, the said plaintiff
withdrew the suit seeking liberty to file fresh suit and the suit
was dismissed as withdrawn vide order dated 13.05.2023.
7. The Commercial suit, out of which the present appeal
has arisen, was thereafter instituted by some of the partners
by passing a resolution in the meeting held on 12.06.2023,
wherein authority was conferred on one of the partners,
namely Mr.Dhaval Mukeshbhai Mehta to perform day to day
work and manage the bank account related issues of the
partnership firm.
8. Placing the above facts before us, it was contended by
the learned counsel for the petitioners that in the light of the
dispute between the partners of the partnership firm and the
fact that certain outsiders were given authority to manage the
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C/SCA/14222/2025 ORDER DATED: 11/11/2025
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day to day work and bank account related affairs of the
partnership firm, the petitioners who have objected to such
arrangement and withdrew their power of attorney, are
necessary and proper party to the proceedings drawn before
the Civil Court, where prayer has been made for defreezing of
the bank account of the partnership firm and also permit one
partner, namely Mr.Dhaval Mukeshbhai Mehta to operate the
bank account of the plaintiff partnership firm.
9. The contention is that for the prayers made in the Civil
suit, the petitioners are not only proper but necessary party to
the suit. Taking note of the above, we may further note the
reliefs as prayed for in the Commercial Suit as under:-
"a. YOUR HONOUR be pleased declare that action of
Defendant - Bank in debit freezing bank account of Plaintiff -
Partnership Firm bearing account no. 8011145925 is bad,
illegal, arbitrary and without authority of law;
b. YOUR HONOUR be pleased direct Defendant - Bank to
take resolution of majority of partners of Plaintiff -
Partnership Firm dated 12.06.2023 on record and permit
Dhaval Mukeshbhai Mehta to operate bank account of
Plaintiff - Partnership Firm bearing account no. 8011145925;
c. YOUR HONOUR may be pleased to permanently injunction
Defendant - Bank its officers, agents, representatives or any
person action through it from freezing bank account of
Plaintiff - Partnership Firm bearing account no. 8011145925
without the order of the competent court;
d. YOUR HONOUR may be pleased to award compensation to
the tune of Rs. 50,00,000/- (fifty lacs) to the Plaintiff -
Partnership Firm on account of illegal and arbitrary debit
freeze of bank account of Plaintiff bearing account no.
8011145925 Partnership Firm.
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e. YOUR HONOUR be pleased to direct the defendant to pay
the cost of the present suit;
f. YOUR HONOUR be pleased to pass any such other and
further relief as may be deemed just, fit and proper in the
facts and circumstances of the case."
10. Considering the above, when we have gone through the
order passed by the Trial Court in rejecting the application
under Order 1 Rule 10, we find that the Trial Court has
misguided itself in relying upon Order XXX Rule 1, which
provides that a suit in the name of the partnership firm can be
filed by any two or more persons claiming or being liable as
partners and carrying on business at the time of accruing of
the cause of action. The Trial Court has further referred to
Section 12 of the Indian Partnership Act, 1932, which deals
with the conduct of business of a partnership firm, but there is
no consideration at all to the provisions of Order 1 Rule 10,
whereunder the application was filed by the petitioners
herein.
11. Having considered the provisions of Order XXX Rule 1
and Section 12 of the Indian Partnership Act, 1932, we may
note that the issue which was required to be considered by
the Trial Court was about the scope of Order 1 Rule 10 CPC
and the reliance or reference to Order XXX Rule 1 CPC and
Section 12 of the Partnership Act to hold that the suit was
filed by a competent person, is in complete ignorance of the
pertinent issue for consideration before the Trial Court, in the
application.
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12. The principles underlying Order 1 Rule 10 CPC is that on
an application filed by a person seeking impleadment in a suit,
the Court may exercise its discretion by making an inquiry as
to whether the applicant is either necessary or proper party to
the suit. If the Court finds that the applicant is a necessary
party to the suit and the suit cannot be decided in absence of
the applicant, it is incumbent upon the Court to implead it by
allowing application filed under Order 1 Rule 10 CPC. There
may be a situation where impleadment is sought by a person
who may not be a necessary but a proper party and in that
situation, even the impleadment of the proper party may be
ordered by the Court so as to ensure effective adjudication of
the dispute. The caveat to this principle is that if the Court is
of the view that impleadment of such a proper party will alter
the nature of the suit or introduce a new cause of action, it
may refuse to implead such person. The discretion to be
exercised by the Court in the matter of impleadment of
someone as a proper party though is further subject to
limitation, bona fides, etc.
13. The Apex Court in the case of Mumbai International
Airport (P) Ltd. V. Regency Convention Centre & Hotels
(P) Ltd. [(2010) 7 SCC 417] has held in Paragraph No.
'24.4' as under:-
"24.4 If an application is made by a plaintiff for impleading
someone as a proper party, subject to limitation, bona fides,
etc., the court will normally implead him, if he is found to be
a proper party. On the other hand, if a non-party makes an
application seeking impleadment as a proper party and the
court finds him to be a proper party, the court may direct his
addition as a defendant; but if the court finds that his
addition will alter the nature of the suit or introduce a new
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cause of action, it may dismiss the application even if he is
found to be a proper party, if it does not want to widen the
scope of the specific performance suit; or the court may
direct such applicant to be impleaded as a proper party,
either unconditionally or subject to terms. For example, if D
claiming to be a co-owner of a suit property, enters into an
agreement for sale of his share in favour of P representing
that he is the co-owner with half-share, and P files a suit for
specific performance of the said agreement of sale in respect
of the undivided half-share, the court may permit the other
co-owner who contends that D has only one-fourth share, to
be impleaded as an additional defendant as a proper party,
and may examine the issue whether the plaintiff is entitled to
specific performance of the agreement in respect of half a
share or only one-fourth share; alternatively the court may
refuse to implead the other co-owner and leave open the
question in regard to the extent of share of the defendant
vendor to be decided in an independent proceeding by the
other co-owner, or the plaintiff; alternatively the court may
implead him but subject to the term that the dispute, if any,
between the impleaded co-owner and the original defendant
in regard to the extent of the share will not be the subject-
matter of the suit for specific performance, and that it will
decide in the suit only the issues relating to specific
performance, that is, whether the defendant executed the
agreement/contract and whether such contract should be
specifically enforced."
14. Considering the above principle, in light of the dispute
between the parties before us and the facts noted hereinabove
from the statement in the application under Order 1 Rule 10,
we are of the considered opinion that the petitioners are not
only proper but necessary party to the suit, inasmuch as, the
suit filed for the relief of seeking permission for one of the
partners to operate the bank account of the plaintiff
partnership firm, in our considered opinion, cannot be decided
in absence of the petitioners.
15. For the above, we find that the judgment and order
dated 17.07.2025 passed by the learned Commercial Court
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suffers from manifest error of law and jurisdiction on its part.
While setting aside the judgment and order dated 17.07.2025,
the application under Order 1 Rule 10 CPC filed by the
petitioners herein stands allowed. The petitioners are directed
to be impleaded as defendants in the Commercial Civil Suit
No.29 of 2024 forthwith. They will be permitted to file their
response to the plaint. The Trial Court is required to
determine all issues in the suit independently without being
influenced by any of the observations made hereinbefore on
the merits of the claim of the parties.
16. The petition filed under Article 227 of the Constitution of
India stands allowed to the above extent. No order as to costs.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
SAHIL S. RANGER
