Madhya Pradesh High Court
Sanchalak Mahoday vs Uforia Fashion Through Its Partner ... on 30 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 30 th OF MAY, 2024
CIVIL REVISION No. 170 of 2024
BETWEEN:-
1. SANCHALAK MAHODAY MATESHWARI CASUALS
301, MAIN STREET MHOW, INDORE (MADHYA
PRADESH)
2. MATESHWARI CASUALS THROUGH ITS
PROPRIETOR ADITYA THOMRAY S/O LATE SHRI
SATYANAND, AGED ABOUT 34 YEARS,
OCCUPATION: BUSINESS 2993, JOSHI MOHALLAH
(JANNO KI BASTI) MHOW INDORE (MADHYA
PRADESH)
.....PETITIONER
( BY SHRI VALMIK SAKARGAYEN - ADVOCATE )
AND
UFORIA FASHION THROUGH ITS PARTNER SAURABH
AGRAWAL S/O SHRI CHANCHAL KUMAR AGRAWAL,
AGED ABOUT 34 YEARS, OCCUPATION: BUSINESS SHOP
NO. 7, SAI PRABHAT PLAZA, TILAK PATH, RAJWADA,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI PANKAJ PANDE - ADVOCATE )
This revision coming on for admission this day, th e court passed the
following:
ORDER
1. Petitioners have preferred present civil revision under section 115 of
Code of Civil Procedure, 1908 (hereinafter referred to "CPC") being aggrieved
by impugned order dated 30/11/2023 passed in RCS Case no. B/337/2021 by
Civil Judge, Class-I, Junior Division, Indore (X Additional Judge to District
Indore ), whereby the application filed under Order 7 Rule 11 of CPC filed by
petitioners has been dismissed.
2. Brief facts of the case are that respondent no. 1 /plaintiff filed money
suit against petitioners for for recovery of amount of Rs. 1,49,247/-, whereas
the contention of the plaintiff firm is that, the defendants's firm purchased
clothing from the plaintiff firm and in the said business transaction an
outstanding amount of Rs 1,49,247 was remained unpaid. During pendency of
the suit, petitioners preferred an application under Order 7 Rule 11 of CPC.
After hearing both the parties, the trial Court dismissed the application vide
order dated 30/11/2023 by observing that the said issue may be decided after
recording of evidence. Being aggrieved by the same, petitioners preferred
present Civil Revision before this Court.
3. Learned counsel for the petitioners contended that as the plaintiff has
not disclosed the fact as to whether the plaintiff firm was registered firm or not?
and the partnership firm was registered, therefore, the suit filed by unregistered
firm is not maintainable. The trial Court has committed error of law and fact
while dismissing his application. Hence, he prays that the impugned order be set
aside and the application filed under section 7 Rule 11 of CPC be allowed.
4. Learned counsel for the respondent submits that the impugned order
passed by the trial Court is just and proper and does not call for any
interference by this Court.
5. From perusal of the record, it appears that the trial Court has
dismissed the application filed under Order 7 Rule 11 of CPC by the petitioners
only on the sole ground that it may be adjudicated after recording of
evidence.In the instant case, the moot question arises for consideration whether
an application under Order 7 Rule 11 CPC ought to be decided on the
allegations in the plaint and filing of written statement and evidence is irrelevant
and unnecessary.
6. Hon'ble Supreme Court in the case of Om Agrawal Vs. Haryana
Financial Corporation and others reported in 2015(4) MPLJ 495 has
observed as under :
"22. An application for rejection of the plaint can be filed, if the
allegations made in the plaint taken to be correct as a whole on its face
value show the suit to be barred by any law. The question as to whether
a suit is barred by any law or not would always depend upon the facts
and circumstances of each case. However, for deciding this question,
only the averments made in the plaint are relevant."
7. In exercise of powers under this provision, the Court would
determine if the assertions made in the plaint are contrary to statutory law, or
judicial dicta, for deciding whether a case for rejecting the plaint at the
threshold is made out. The test for exercising the power under Order VII Rule
11 is that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same result in a decree
being passed.
8. Hon'ble the apex Court in the case of Dahiben Vs. Arvindbhai 8
Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and
Others reported in (2020) 7 SCC 366, has held that powers under Order
VII Rule 11 of CPC must be exercised by the Court at any stage of the suit
either before registering the plaint, or after issuing summons to the defendant, or
before conclusion of the trial.
9. Respondent/plaintiff has preferred civil suit on behalf of partnership
firm through its partner Saurabh Agrawal. In the case of Govindaraja Naicker
Vs. Sapthagiri Complex reported in (1994) ILR ( Karnataka) 1832 it has
been held as under:
"In the case of unregistered firms, suit cannot be filed either in the
name of the firm itself or against it, but does not prevent the partners of
the unregistered firm from suing or being sued provided all the partners
of the firm are on record since firm is only compendious name of
partners."
10. But in the instant case, learned counsel for the respondent, during the
course of the argument, admits that it is not the registered firm and partnership
deed has been verified only by Notary. The provision of section 69 of the
Partnership Act has not been duly complied with. Apart from the above, it is
noteworthy that the plaintiff has filed the suit on behalf of the unregistered firm.
but all the partners of the firm was not taken on record and the suit has been
filed through only one partner out of the two partners, therefore, unregistered
firm has no locus standi to file civil suit on the name of partnership firm.
11. Learned counsel for the respondent has placed reliance upon the
judgment of this Court in the case of Madanlal Vs. Badambai reported in
LAWS (MPH)-2008-9-40, in which it has been held as under :
"Before parting with the case, we may point out that we have
analyzed Section 69 of the Partnership Act in the context of Order VII
Rule 11 and the views expressed are based on reading of plaint
averments to see whether it is hit by Order VII Rule 11 and as such is
liable to be rejected at the threshold without trial."
12. In view of the aforesaid, this Court is of the considered opinion that
the suit filed by the respondent/plaintiff is clearly barred by time, therefore, the
suit is not maintainable as it is not filed by all the partners of the firm. The trial
court has not considered all these aspects of the matter and ignored the
mandatory provisions of law.
13. Resultantly, the present civil revision is allowed and the impugned
order dated 30/11/2023 is hereby set aside. The application preferred by
petitioner/defendant under Order 7 Rule 11 CPC stands allowed and the suit
filed by respondent /plaintiff before the trial court is hereby rejected as not
maintainable.
CC as per rules.
(ANIL VERMA)
JUDGE
amol
