Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : NM No.172 of 2018
CNR No.MHCC010006302018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.172 OF 2018
IN
S.C. SUIT NO.428 OF 2017
Esha Rajesh Shenoy ) .. Plaintiff
Versus
1. Abhijeet Manoharlal Chandan & Anr. ) .. Defendants
Learned Advocate S.K. Jain for defendants.
Learned Advocate Furia for plaintiff.
CORAM : HER HONOUR JUDGE
SMT. ULKA L. JOSHI
(COURT ROOM NO.31)
DATE : 31st January, 2018
: ORDER :
1. This Notice of Motion is by defendants under Section 9A of
CPC.
2. Story put forth by defendants in short is that,
By filing present suit, plaintiff is seeking recovery of
Rs.99,64,000/. As per contention of plaintiff she is the partner of
Firm namely 'Thought Pot Media' along with defendant Nos.1 and 2.
The amount of Rs.99,64,000/ is due and payable to her by defendant
Nos.1 and 2 towards her share in profit during the period 01/05/2013
to 15/09/2015. Inspite of this, entire plaint is silent about the
registration certificate of said Firm and name of plaintiff as partner
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with Registrar of Companies. In such situation, suit is barred under
Section 69 of the Indian Partnership Act and is liable to be dismissed.
Therefore preliminary issue as regards barred nature of suit under
Section 69 is liable to be framed. Hence this Notice of Motion.
3. By filing reply plaintiff has denied the contentions in toto. As
per plaintiff, Notice of Motion is vexatious, misconceived and
misleading. It is taken to delay the hearing of interim reliefs. She put
up the story that in his written statement, defendant No.1 admitted the
factum of services rendered by plaintiff to the said Firm. However he
contended that plaintiff is not partner but an employee drawing salary
of Rs.40,000/ per month and her accounts are settled. Stepping ahead,
in the plaint it is her contention that defendant have represented
plaintiff through various mails as partner of said Firm. By filing
present suit, she is claiming legitimate dues from the Firm. Section 69
cannot debar plaintiff from enforcing her statutory right or common
law right. Hence suit cannot be said to be barred by Section 69 of
Partnership Act, 1932. On these grounds she prayed for dismissal of
Notice of Motion.
4. On rival stand of both parties, following points arise for my
determination. I have recorded my findings to them together with
reasons as under,
POINTS FINDINGS
1. Whether suit is barred by Section 69
of Partnership Act, 1932? .. .. In the Negative
2. Whether preliminary issue as
regards barred nature of suit is
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required to be framed? .. .. In the Negative
3. What Order? .. .. Notice of Motion
stands dismissed as per
final order
: REASONS :
As to Point Nos. 1 to 3
5. During course of argument both parties relied on
contentions raised in the plaint.
6. Collective perusal of clause 1 to 27 of plaint made just a
position clear that plaintiff is seeking recovery of her share in the profit
of Partnership Firm namely 'Thought Pot Media'. It is her contention
that defendants represented plaintiff as partner of said Firm from
01/05/2013 till 15/09/2015. It is her further contention that due to
avoidance of payment of profits she retired from Firm and her
resignation is accepted on 15/09/2015. It is her further contention that
said Firm is dissolved on 10/10/2015 and new company is incorporated
by defendant Nos.1 and 2 along with father of defendant No.2. These
all contentions made the picture clear that present suit is filed by
retired partner against dissolved Firm towards the share of profit.
7. In this backdrop, section 69 subsection 2(A)(Maharashtra
Amendment) of Partnership Act says that, “no suit to enforce any right
for the dissolution of Firm or accounts of the dissolved Firm or any right
or power to realize the property of dissolved Firm shall be instituted in
any Court by or on behalf of any person suing as a Partner in a Firm
against the Firm or any person alleged to be or to have been a Partner
in the Firm unless the Firm is registered and the person suing is or has
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been shown in the Register of Firms as the Partner.” This shows that
registration of a Firm is a mandate for filing suit by a Partner against
the Firm or other Partners.
8. By taking shelter to the provision of subsection 2 and by
relying on the law laid down in case of Hirendra Bhola Vs. Gulati
Marketing Company & Anr. (AIR 2007 MP 165), learned Advocate
Shri S.K. Jain for defendants argued that provision of Section 69 sub
section 2 is a mandate and suit is required to be dismissed. However,
this argument is having no binding force of law. Subsection 2 relates
to suit between Firm and third party. Present suit is filed by retired
Partner against dissolved Firm. It is not within the ambit of sub
section 2. Resultantly this proposition do not help the defendants.
9. At this stage, pertinent to note that as per Maharashtra
Amendment and in view of Section 69 subsection 2A of Partnership
Act 1932, registration of Firm is a mandate and suit against
unregistered Firm for dissolution or for any right against the dissolved
Firm is not maintainable. However in case of V.Subramaniam Vs.
Rajesh Raghuvandra Rao (AIR 2009 SUPREME COURT 1858),
Hon'ble Apex Court held that, “the restrictions placed by subsection 2A
of Section 69 introduced by Maharashtra Amendment Act is arbitrary,
unreasonable and of excessive nature and went beyond what is in the
public interest.” It is further held that, “subsection 2A of Section 69
clearly violates Article 14, 19(1)(g) and 300(A) of the Constitution, it is
ultra vires and hence declared unconstitutional.” In the light of this
proposition in present case also it cannot be inferred that suit is barred
by Section 69 of Partnership Act 1932.
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10. Material to note that in above cited case, Hon'ble Apex Court
observed that “the effect of amendment is that a dishonest Partner if in
control of business or if simply stronger can successfully deprive the
other Partner of his dues from the partnership. It could result in
extreme hardship and injustice. Might would be right. An aggrieved
Partner is left without any remedy whatsoever. He can neither file a
suit to compel the mischievous Partner to cooperate for registration, as
such a suit is not maintainable nor he can resolve to arbitration if any”.
In the light of this observation it is just and necessary to quote the few
facts alleged in plaint. In para 4 of plaint it is contention of plaintiff
that entire understanding between plaintiff and defendants was oral.
Plaintiff repeatedly requested defendants orally as well by email about
the execution of Partnership Deed and to reduce into writing the share
of profit in the said Firm. However, defendants failed to execute the
Deed of Partnership and assured plaintiff about the share of profit and
loss to the tune of 15%. It is further contention of plaintiff that
believing in the assurances, plaintiff continued with the work as a
PartnercumContent Head. Defendants represented plaintiff as partner
through various mails. It is further contended that after her retirement,
defendant No.1 blocked email ID which was provided to plaintiff as
Partner of Firm. This allegations prima facie show that defendants
failed to execute the Deed of Partnership, they failed to register the
Firm, they by giving assurance allowed plaintiff to provide her
professional skill to Firm, after retirement of plaintiff they blocked her
email ID. When plaintiff knocked the doors of Court for her legitimate
dues, they came with plea that suit is barred under Section 69. This
alleged mischievous conduct at the hands of defendants disentitle them
from raising such plea in view of ratio mentioned in above cited case.
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From above it is clear that in the light of law laid down in
V.Subramaniam's case (cited supra), suit is maintainable in this Court.
Therefore there is no necessity to frame preliminary issue as regards
barred nature of suit as per Section 69 of Partnership Act 1932. This
constrained me to answer all points accordingly and pass the following
order.
: ORDER :
1. Notice of Motion No.172 of 2018 stands dismissed.
2. Cost will be the cause in main suit.
(Pronounced in Open Court)
31/01/2018 (Smt.U.L.Joshi)
Adhoc District Judge,
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 31/01/2018
Transcribed on : 31/01/2018
Signed on : 31/01/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 31/01/2018 at 5.30 p.m.
UPLOAD DATE AND TIME Mrs. M. M. Salgaonkar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Smt.U.L. Joshi
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
31/01/2018
JUDGMENT/ORDER signed by P.O.
on
31/01/2018
JUDGMENT/ORDER uploaded on 31/01/2018
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