Order 1

Order Details: Notice of Motion
Pdf Text: 1394N/M NO.1834/18 IN SUM.SUIT NO.4560/13 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
MOTICE OF MOTION NO.1834 OF 2018
IN
SUMMARY SUIT NO. 4560 OF 2013
(CNR NO.: MHCC010059472018)
Mrs.Ramadevi Daga ...Plaintiff
Versus
M/s.Pioneer Synthetics ...Defendant
And
Mr.Achlesh Kumar Daga & ors. ...Applicants.
Appearances:
Advocate Mr.Ramesh Jain and Mrs.Kusum Jain for the Plaintiff.
Defendants Exparte.
CORAM : HIS HONOUR JUDGE
SHRI.M.S.LONE
(C.R.NO.28)
DATE : 18TH OCTOBER 2019
ORDER
This Notice of motion is to set aside the exparte order and
decree dated 18/09/2014 with prayer of condonation of delay to file
this notice of motion.
2. The suit was filed by plaintiff against the registered partnership
firm alleging that in the month of 2012 the partners approached her to
provide loan of Rs.11,00,000/ and the plaintiff agreed to give a loan of
Rs.10,67,200. Accordingly, loan was given by plaintiff vide four
cheques. The said loan amount was to carry interest @ 24% p.a.. The
defendants partnership firm failed to repay the whole loan amount. On
repeated demands the defendant partnership firm issued cheque of Rs.
12,37,000/ but, it was dishonoured. Plaintiff has also filed proceedings
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under section 138 r/w.141 and 142 of the N.I.Act 1881. To recover the
said amount plaintiff has filed present suit.
3. The record shows that this court has held that defendants were
duly served with summons for appearance. They did not appear and
suit was proceeded exparte. The exparte judgment and decree was
passed on 18/9/2014.
4. It is to be noted that this notice of motion is not filed by
partnership firm but some of partners (disputed) to set aside the ex
parte judgment and decree.
5. Heard Ld. counsel for Ramesh Jain for the applicants and Ld.
counsel Ms. Sheetal Prakash for the plaintiff.
6. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1. Whether there are special
circumstances made out by the
applicant to set aside the exparte
judgment and decree dated
18/09/2014?
No
2. What order? As per final order
REASONS
AS TO POINT NOS.1 and 2.
7. Ld. counsel for applicants has submitted that the applicants are
the partners of defendant partnership firm. The exparte judgment and
decree was obtained by playing fraud upon the court. In the year 2008
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the Daga family constituted registered partnership firm having family
members as partners. The firm was named as M/s. Pioneer Synthetics
having registered address at Surat but operating from the Mumbai
office. In the year 2011, certain disputes arose between partners of the
firm. There were attempts of compromises and mediations and it was
agreed that the business assets and liabilities of entire firm shall be
taken by two partners namely Shri. Shirnath Daga and Mrs. Urmiladevi
Daga while other partners shall receive their capital as well as share in
the property of the firm.
8. It is further contentions of the Advocate for the applicants that
the said compromise term was not obliged by Shri. Shrinadth Daga and
Mrs. Urmiladevi Daga. Therefore, the applicants vide letters dated
06/11/2012 and 26/12/2012 requested the Tamilnad Merchantile Bank
Limited, Mandvi Branch, Mumbai to freeze the bank account of
partnership firm. The dispute arose between the partners of the firm
and to counter blast the act of freezing of bank accounts, the defendants
entered in conspiracy with plaintiff, who is daughter in law of
Urmiladevi Daga, and portrait the false debt. The plaintiff has never
given any loan to the partnership firm. The firm business activities are
closed from 20102011. To use the assets of the disputed partnership
firm and to deprive the applicants from their genuine claims, plaintiff
had filed suit against registered firm. The suit is filed in collusion with
the other partners of the firm. The summons were served deliberately
on the address at Surat because by serving at such address plaintiff was
sure that partners would not be aware of such summons. Deliberately
the defendants partners did not appeared and allowed the suit to be ex
parte decreed. The exparte judgment and decree has been obtained to
deprive the claims of applicants.
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9. To support his arguments Ld. counsel had relied on the copy of
deed of retirement cum admission deal, copy of letter given by applicant
to bank, copy of writ petition filed by the defendant partnership firm
against the bank for releasing the bank accounts, copy of partnership
deed of M/s.Hanuman Trading Co., copy of supplement deed of
partnership, copy of retirement deed of partnership, copy of expulsion
of partners, copy of notice of change of constitution, copy of application
filed by plaintiff in the Criminal case to drop some of the partners as
accused, copy of plaintiff to the head of the Daga family and copy of
letter by one Madan Mohan Periwal.
10. The plaintiff has resisted this notice of motion by filing reply. Her
Ld. counsel would submit that the suit summons was duly served on the
registered address of the defendant firm. There are disputes inter se
between partners and that cannot be reason to reject her genuine claim.
As the cheque was issued by the partnership firm and it was
dishonoured the plaintiff has filed complaint in the Magistrate court
against all the partners. The applicants have no locus to file such
application and therefore the notice of motion be rejected. To support
her arguments Ld. counsel relied on the copy of order passed by my
sister Judge in Chamber summons No.1217/2017 in Summary Suit
No.431/2014, copy of order passed by Hon'ble High Court in writ
petition No.9562.2019 and relied on Madhusudan Shrikrishna Vs.
M/s.Emkay Exports,Mumbai and Ors.,2008(6Mh.L.J.797 and
M/s.Ajanta Enterprises, Jaipur Vs.Bomla Charan Chatterjee &
Anr.,1987 SCC online Raj.516.
11. In rejoinder the Ld. counsel for the applicants has stated that the
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plaintiff has written letter to the head of the family about the inter se
disputes between the brothers. The expulsion deed of partners does not
bear the signatures of the applicants. To defy the claim of applicants
plaintiff in hand in glove with defendants played fraud on the court and
has obtained this exparte judgment and decree.
12. Before proceeding further, it is to be noted that applicants had
filed similar application before my Ld. sister Judge in Summary Suit
No.431/2014. The chamber summons no. 1217 of 2017 was filed by
the applicants seeking similar relief to set aside exparte decree alleging
that the plaintiff therein along with partnership firm has played fraud
on court. That chamber summons was reject6ed by my Ld. sister Judge
on 15/03/2019. That order was challenged by the applicants before the
Hon'ble High Court of Bombay. The Hon'ble High Court of Bombay in
writ petition No9562/2019 observed that the defendants were duly
served with the suit summons and there was no possibility to take any
other view than one which has been taken by the trial court.
Accordingly, the Hon'ble High Court dismissed the writ petition filed by
the applicants. On this background if the provisions of Order 37, Rule 4
is perused the defendants are required to show special circumstances to
set aside the decree. In this case, it seems that defendants’ partnership
firm has some inter se dispute amongst the partners. The applicants
are/were the partners of the registered partnership firm. The record
shows that partnership firm has executed deed of expulsion and has
expelled the applicants as partners of the firm. The applicants are
disputing this fact. To show collusion between plaintiff and defendant
partnership firm the applicants have relied on the letter written by the
plaintiff to the head of the family regarding the inter se growing
disputes and differences arising within the family. That does not make
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due inference that plaintiff has collusion with the some of the partners
of the partnership firm.
13. In the case of Madhusudan Shrikrishna (Supra) the Hon’ble
High Court of Bombay held that, When the defendant approaches the
Court for setting aside the ex parte decree in a summary suit, mere
failure to file Vakalatnama or failure to enter an appearance, that itself
cannot be said to be a special circumstance for setting aside the decree.
After perusal of whole authority, it is respectfully submitted that
authority is not applicable to the present case as in this case some of the
disputed partners of the defendant partnership firm have approached
this Court to set aside ex parte decree, which was not the fact in case
before the Hon’ble High Court. In the case of M/s Ajanta Enterprises,
Jaipur (Supra), that case was of filed against tenant for eviction on
ground of personal necessity. It is respectfully submitted that the ratio
of that case would not be applicable in the summary suits.
14. It is undisputed that the suit summons was sent to the registered
address of the partnership firm. According to the applicants that
registered address is not in operation. To support this contention the
applicant has relied on letter dated 01/01/2011 by one Madan Mohan
Periwal. It seems that this person is in possession of the registered
address of the partnership firm. The letter indicates that this person
accepts all the correspondences of the partnership firm and informed
the partners about the same therefore, it can be said that the suit
summons was served on proper address of the partnership firm. To set
aside the exparte decree the applicants has to show special
circumstances, for the sake of arguments even if it is assumed that the
plaintiff is the family member of the defendants and applicants, then
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also the plaintiff case can be relied as one of the family members can
give loan to the partnership firm. Even a partner can give a loan in
independent character to the partnership firm. Therefore, just because
the plaintiff is the family member her case cannot be doubted about
giving the loan to the partnership firm. The applicants have approached
this court to set aside the decree only on the ground about dispute
between partners. The applicants have independent remedy and rights
as a partner against the defendant partnership firm. Because of the
dispute between partners the creditors of the partnership firm cannot be
made to suffer, therefore, no special circumstances are made out by the
applicants. Hence, the order.
ORDER
1. Notice of Motion No.1834/2018 stands rejected.
2. Notice of Motion No. 1834/2018 is accordingly, disposed of.
(M.S.LONE)
Judge,
Date: 18/10/2019 City Civil Court,Gr. Bombay
Dictated on : 18/10/2019
Transcribed on : 22/10/2019
Signed on : 23/10/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/10/2019 at 2.30p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME N1394AME OF
STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
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Date of pronouncement of
Judgment/Order
18/10/2019
Judgment/Order signed by P.O. on 23/10/2019
Judgment/Order uploaded on 24/10/2019
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