Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 8114/98 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 764 OF 2018
(CNR NO.MHCC010027912018)
IN
SUMMARY SUIT NO.8114 OF 1998
(HIGH COURT SUMMARY SUIT NO.3084 OF 1998)
M/s.Riche Investment Consultants & Anr. ...Plaintiff
V/s
Nainaben Pranjivan Mehta & Anr. ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 01/11/2018
Adv. Mr.Kishor Dalal for plaintiff.
Defendant no.2 in person.
ORDER BELOW NOTICE OF MOTION NO.764/18
1. This Notice of Motion is taken out by the defendant no.2 for
the dismissal of aforesaid suit on the ground of suit not maintainable
under Section 69(2) of Indian Partnership Act, 1932. The plaintiff has
resisted the said Notice of Motion by filing reply on record.
2. Heard. Read the application and reply.
3. The defendants no.2 in person has submitted that the
defendant has obtained the certified copy of the partnership deed of the
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NM In SC 8114/98 Oral Order 2
plaintiff's firm from the Registrar of Firms and there is no admission
about the registration of the first plaintiff firm or validity of such firm.
Therefore, it is requested to dismiss the suit as it is not maintainable.
4. Per contra, the advocate for plaintiff has submitted that the
present Notice of Motion is preferred after a period of more than 18
years. It is submitted that similar application was filed by defendant
no.2 and it was withdrawn on 26/8/2016 and after 18 months this
Notice of Motion has been taken out. It is submitted that the issue of
Notice of Motion cannot be tried as a preliminary issue but it should be
heard alongwith the other issues. It is submitted that there is no
violation of Section 69(2) of Indian Partnership Act. It is submitted
that there is nothing on record to show that the plaintiff no.1 Firm is
not legally and validly registered as alleged. It is submitted that the
Notice of Motion is filed only with a view to prolong the matter and
nothing more. It is requested to reject the notice of motion.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. There is no
dispute that the plaintiff has filed the present suit in the year 1998 for
the recovery of amount against the defendant under Order 37 of the
CPC . Now, the mere contention of the defendant that he has obtained
the certified copy of partnership deed of the plaintiff's firm from the
Registrar of the Firms and there is no admission about the registration
of the firm or validity of the registration, is not a sole ground to dismiss
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the suit. It appears that the defendant no.2 also filed the similar
application and that was withdrawn. It appears that in the matter the
plaintiffs have already filed affidavit of evidence on 11/1/2018
alongwith the list of documents. Therefore, considering all aspects of
the case and circumstances on record at this juncture it cannot be said
that the suit is not maintainable under Section 69(2) of the Indian
Partnership Act, 1932. I do find substance in the contention of the
learned advocate for the plaintiff that the present Notice of Motion is
taken out by the defendant no.2 only with a view to protract the trial
and nothing new. This Motion appears devoid of substance and needs
to be rejected. In the result, following order:
: ORDER :
1. Notice of Motion no.764/18 is hereby rejected.
2. No order as to costs.
(M.M.UMAR)
Judge,
01/11/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 01/11/18.
Date of Transcription : 01/11/18.
Date of signature : 02/11/18
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NM In SC 8114/98 Oral Order 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
3/11/18 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
1/11/18
Judgment/order signed by P.O on 2/11/18
Judgment/order uploaded on 3/11/18
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