Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010014152018
Presented on : 14-02-2012
Registered on : 14-02-2012
Decided on : 19-11-2022
Duration : 10Y-09M-05D
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER MUMBAI
B.C.C. CHAMBER SUMMONS NO.180 OF 2018
(H.C.CHAMBER SUMMONS NO.266 OF 2012)
IN
B.C.C. SUMMARY SUIT NO. 7640 OF 2004
(H.C.SUMMARY SUIT NO.3328 OF 2004)
Niketa Distributors, Dealers in Drugs &
Pharmaceuticals, Under Registered
Partnership Firm Through its Partner
Shri.Alok Yatindrakumar Agarwal, Partner
having His Address at Flat No.1404, 1-B,
Dheeraj Enclave Tower, Borivali(East),
Mumbai-400 066.
...Plaintiff
Versus
Messrs. Jignesh Pharama, Having their
place of Business at 12/22, Bomani Master
Road, Gandhi Mansion, 1st Floor, Opp.
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Kalbadevi Road Post Office, Mumbai-
400 002.
Through its Proprietor Shri Ramesh J. Shah,
Residing at Flat No. 16, 2nd Floor, Swadhin
Sadan, C-Road, Churchgate, Mumbai-20.
1(a) Mr. Jignesh Ramesh Shah
1.(b) Miss Priya Ramesh Shah
Both Indian inhabitants of Bombay
Residing at Flat No.16, 2nd Floor, Swadhin
Sadan, “C” Road, Churchgate, Mumbai-400
020.
...Defendant
Appearance :
Adv. for plaintiff absent.
Mr. Jignesh Ramesh Shah, defendant No.1(a) in person.
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 19-11-2022.
ORDER
The present Chamber Summons is filed way back in the
year 2012, before the Hon’ble Bombay High Court (Original Side)
seeking dismissal of the suit mainly on the count that plaintiff is not a
Registered Partnership Firm. After affording sufficient time to the
plaintiff, who is absent since long time, I have taken up the present
Chamber Summons for hearing.
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2. Mr. Jignesh Shah, defendant No. 1 (a) claims to have
waited almost for last 10 years to see that his chamber summons is
heard and decided by the Court. He submits that he tried many lawyers,
but now nobody is ready to argue his case, therefore he sought
permission to argue his matter in person.
3. Mr. Jignesh Shah submits that he tried to argue the matter
many times but either plaintiff used to remain absent or his own lawyer
or court used to be busy in other matters. He earnestly requests to
consider Chamber Summons and pass appropriate orders.
4. Considering the submissions of Mr. Jignesh Shah, he was
permitted to argue his chamber summons in person.
5. Mr. Jignesh Shah submits that after receiving notice from
the Court he appeared in the matter. Thereafter, he inquired about the
plaintiff’s Firm and after long persuasion came to know that plaintiff is
not a registered Partnership Firm and, as such, has no legal right to file
the suit. He ultimately submits to dismiss the suit.
6. Perused Chamber Summons and affidavit filed in support of
it. It is contended that though the present suit is filed by Niketa
Distributors through its partner posing itself as a Registered Partnership
Firm, however, plaintiff is not registered with the Registrar Firms. The
Registrar of Firms by communication dated 20-09-2011 has supplied
the information in that regard to the defendant. It is contended that
present defendant by letter dated 30-04-2011 had called upon plaintiff
to furnish a copy of extract of the Registrar Firms showing that the
plaintiff is a Registered Partnership Firm. However, the said notice was
not replied. It is further contended that defendant had approached the
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Registrar of Firm and sought inspection of record, wherein he could not
find entry of name of the plaintiff in the Register. He, therefore by an
application dated 16-09-2011 requested the Registrar of Firms, Mumbai
to furnish information as to whether ‘M/s. Niketa Distributors’ (i.e. the
Plaintiff) is registered with it? The Registrar in turn by letter dated 20-
09-2011, intimated defendant that no such Firm is registered with
them.
7. It is further contended that defendant had also brought this
communication to the notice of plaintiff by a notice dated 18-10-2011,
under Rule-2 of Order XII of Civil Procedure Code, 1908, ( “CPC” for
short). The plaintiff was called upon to furnish information as to the
registration of the plaintiff’s Firm. The said notice was not at all replied,
therefore defendant by way of notice under Rule 4 of Order XII of CPC
dated 13-12-2011, called upon plaintiff to admit that M/s. Niketa
Distributors is not a Registered Partnership Firm. However, the said
notice was also never replied. In this backdrop defendant prays to
dismiss the suit as same is not maintainable as per Sub-section (2) of
Section 69 of the Partnership Act, 1932 ( Act of 1932).
8. Defendants further contend that they are wrongfully made
party to the present proceeding as Legal heirs of deceased sole
defendant. It is contended that deceased has left no property with the
present defendants and therefore adding them as party defendant is
also erroneous.
9. It needs to be noted that the suit came to be transferred
from Hon’ble High Court to this Court in the year 2013. The roznama
dated 08-04-2013 onward reveals that plaintiff was well aware about
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the transfer of the proceedings and stage of the matter including the
hearing of present Chamber Summons. Despite the same, plaintiff failed
to file reply to present Chamber Summons. Plaintiff is consistently
absent since 2016, and as such matter is pending for hearing on
Chamber Summons since then.
10. On perusal of the cause title of the plaint, it is very much
clear that plaintiff has posed itself to be a registered Partnership Firm. It
appears that defendant diligently persuaded the office of Registrar Firm
where-from he came to know that plaintiff is, in fact, not a registered
Partnership Firm. The communication placed on record along with
Chamber Summons clearly reveals the same. It needs to be appreciated
that defendant, at every stage, had issued notice to the plaintiff to
disclose the documents showing the itself to be a registered Partnership
Firm. The record further reveals that plaintiff failed to supply any such
document and no reply whatsoever is sent to defendant. Not only this
but plaintiff in spite of knowledge about the present chamber summons
failed to file reply to it. Thus, it appears that plaintiff has nothing to
dispute the contention of the defendant regarding non registration of its
Firm.
11. Section 69 of Act of 1932 reads as under-
69. Effect of non-registration- (1) No suit to enforce a
right arising from a contract or conferred by this Act
shall be institute 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
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or has been shown in the Register of Firms as a partner
in the Firm.
(2) No suit to enforce a right arising from a contract
shall be instituted in any Court by or on behalf of a Firm
against any third party unless the Firm is registered and
the persons suing are or have been shown in the Register
of Firms as partners in the Firm.
(3) The provisions of sub-sections (1) and (2) shall apply
also to a claim of set-off or other proceeding to enforce a
right arising from a contract, but shall not affect,-
(a) the enforcement of any right to sue for the
dissolution of a Firm or for accounts of a dissolved Firm,
or any right or power to realise the property of a
dissolved Firm or,
(b) the powers of an official assignee, receiver or Court
under the Presidency-towns Insolvency Act, 1909, or the
Provincial Insolvency Act, 1920, to realise the property of
an insolvent partner.
(4) This section shall not apply,-
(a) to Firms or to partners in Firms which have no place
of business in ( the territories to which this Act extends),
or whose places of business in (the said territories), are
situated in areas to which, by notification under
( Section 56), this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one
hundred rupees in value which, in the Presidency-towns,
is not of a kind specified in section 19 of the Presidency
Small Cause Courts Act, 1882, or outside the Presidency-
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towns, is not of a kind specified in the Second Schedule
to the Provincial Small Cause Courts Act, 1887, or to any
proceeding in execution or other proceeding incidental
to or arising from any such suit or claim.
12. On perusal of Sub section (2) of Section 69 of the Act of
1930, it is crystal clear that no suit can be filed by an Unregistered
Partnership Firm against a third party. In matter in hand, admittedly
defendant is a third party. So also Section 106 of Indian Evidence Act
1872, further casts burden on the plaintiff to disclose the fact of
registration of the Firm which is especially within the knowledge of
plaintiff. Therefore, it was encumbered upon the plaintiff to show that it
has capacity to file the suit against the third party. In other words, it is
bounded duty of the plaintiff to disclose the document which show that
it is a registered Firm, however same has not be done by the plaintiff.
13. That the bar under Section 69(2) of the Act 1932 is an
express bar which goes to the root of the matter. This can also be seen
in the light of Order 7 Rule 11 (d). Thus coherent reading of Section
69(2) of Act of 1932 with Rule 11(d) of Order 7 of CPC makes out a
case for rejection of plaint. Once it is found that plaintiff has no capacity
to file present suit, it can’t be permitted to keep pending. Therefore
such a plaint can be rejected.
14. From the aforesaid discussion it is clear that there is
sufficient material placed on record to hold that plaintiff is not a
registered Partnership Firm and therefore it has no capacity to file the
suit against the third party i.e. defendant. The other contention of
defendant regarding their improper joining as legal heir of deceased
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defendant, being a pure question of fact, cannot be considered at this
stage. Considering the age of the suit, request of taking action against
the plaintiff for perjury, to my mind, is also uncalled for.
15. In view of the above, I find merit in the Chamber Summons
and therefore, I hold that plaint needs to be rejected in view of bar
under Section 69 (2) of Act of 1932. Hence, the order.
ORDER
1. Chamber Summons No.180 of 2018 is allowed and thereby plaint
is hereby rejected with costs.
2. Summary Suit No.7640 of 2004 stands disposed of accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date: 19-11-2022. Court Room No.61
Dictated on : 19-11-2022
Transcribed on : 22-11-2022
Corrected on : 29-11-2022
Signed on : 29-11-2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29-11-2022 at 5.45p.m. Mrs. V. V Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
19-11-2022
JUDGMENT/ORDER signed by P. O. on 29-11-2022
JUDGMENT/ORDER uploaded on 29-11-2022
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