Final Order 1

Order Details: Chamber summons
Pdf Text: CS No. 122-19 in Suit no. 9070 of 2004
in HC Suit No. 3699 of 1995
1 Date : 09.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 122 OF 2019
IN
SUIT NO. 9070 OF 1995
IN
H.C. SUIT NO. 3699 OF 1995
(CNR NO.MHCC01000732 2019
Eruch Boman Khaver .. Plaintiff
Versus
Manoj Manilal Gala & Ors. .. Defendants
Appearances :
Plaintiff and his advocate absent.
Adv.Yumi Patel for defendant no.1(b) present
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 09.09.2019
1. The Defendant no.1(b) filed instant chamber summons for
recasting of issues and framing of additional issues in view of
additional written statement filed by him.
2. It is contended by the defendant no. 1 (b) that the Plaintiff
filed suit for declaration that the alleged suit partnership of M/s
Roopsons, stood dissolved with effect from 31.03.1994. The
original defendant no.1 resisted the suit by filling its written
statement. The defendant no.1 expired on 04.08.2015. The
defendant no. 1 (b) is brought on record as the heir and legal
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CS No. 122-19 in Suit no. 9070 of 2004
in HC Suit No. 3699 of 1995
2 Date : 09.09.2019
representative of original defendant no.1. He has filled additional
written statement on 26.04.2018. It is submitted by the defendant
no.1(b) that in view of his additional written statement, no issue
were framed hence, he constrained to file present chamber
summons.
3. The chamber summons is opposed by the plaintiff by filling
say. It is contended by the Plaintiff that in view of finding of this
court on preliminary issue, the issue of partnership is already
decided, hence the additional issue no. 1 as suggested is not
required. As far as regarding proposed issue no 2 & 3 is concerned
the same is not required as the suit is for dissolution of partnership
firm. It is alleged by the Plaintiff that the defendant no. 1(b) in
order to delay the trial, filed instant chamber summons and thus,
prayed for dismissal of the same.
4. Heard both the sides, perused chamber summons and reply.
The defendant no. 1(b) proposed to frame additional issues in
respect of subsistence of valid and registered partnership as
required under Partnership Act 1932. I have perused additional
written statement of defendant no. 1(b). He has not disputed that
the Partnership firm M/s Roopsons was valid as it was not
registered firm as per Partnership Act. Moreover, my learned
predecessor vide its order dated 13,15,16 & 19 May 2014 while
deciding the preliminary issue of jurisdiction, it was held that the
defendant admitted the existence of partnership firm. Thus, in my
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CS No. 122-19 in Suit no. 9070 of 2004
in HC Suit No. 3699 of 1995
3 Date : 09.09.2019
view, the further issue of validity and registration of firm does not
arise. Hence, to that extent I am rejecting the prayer of the
defendant no. 1(b) of the present chamber summons.
5. As far as regarding the additional issue in respect of non
joinder of necessary parties. It is alleged by the defendant no. 1(b)
that in a suit for dissolution of partnership all the partners and in
the event of death of any of the partner, their legal heirs and
representatives are necessary parties to the suit. Hence, suit is not
maintainable in view of nonjoinder of necessary parties.
6. As per Order 31 rule 4 of Code, on the death of partners it
shall not be necessary to join the legal representatives of the
deceased as party to the suit. However, the legal representative of
the deceased may apply to be made as a party to the suit or to
enforce any claim against the survivor or survivors. Thus, in view
of the above provisions of the code, in my view, the proposed
additional issue is not required to be framed.
7. The other proposed additional issue is in respect of
relinquishment of share by Plaintiff no. 1b, c, e & defendant no. 2
a, b in favour of plaintiff no. 2. My learned predecessor on
09.08.2016 framed issue of percentage of share of Plaintiffs and
defendants. In view, of alleged relinquishment, the said percentage
of share is not changed. In view of the issue as framed, the Plaintiff
has to prove its entitlement of 10% share in the profits of the
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CS No. 122-19 in Suit no. 9070 of 2004
in HC Suit No. 3699 of 1995
4 Date : 09.09.2019
partnership firm, which may include the alleged relinquishment of
share. Hence, in my view, there is no necessity of framing of
additional issue. Thus, in view of the above, in my view, there is
no substance in the chamber summons and same needs to be
dismissed. Thus, I proceed to pass the following order:
ORDER
1. Chamber summons no. 122 of 2019 is hereby dismissed.
2. The cost of chamber summons be saddled on the defendant
no. 1(b).
3. Chamber summons dispose off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 09.09.2019 Greater Mumbai
Dictated on : 09.09.2019
Typed on : 09.09.2019
Draft Submitted on : 09.09.2019
Checked on : 09.09.2019
Signed on : 11.09.2019
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CS No. 122-19 in Suit no. 9070 of 2004
in HC Suit No. 3699 of 1995
5 Date : 09.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11/09/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
09/09/2019
JUDGMENT/ORDER signed by P.O.
on
11/09/2019
JUDGMENT/ORDER uploaded on 11/09/2019
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