Interim Order 1

Order Details: Order below exhibit
Pdf Text: Ch/s No. 488/21 in Comm. Suit No. 79/19. 1 Order below Exh.8.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 488 OF 2021
IN
COMMERCIAL SUIT NO. 79 OF 2019
Executive Trading Company Private Limited )...Plaintiff
Versus
Maruti Steel Fab )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 23rd JUNE, 2021.
Mr. Giriraj, Advocate for the plaintiff.
Mr. S.Bhojwani, Advocate for the defendant.
ORDER BELOW EXHIBIT 8.
This is an application filed by the plaintiff under Order 30
Rule 1 of the CPC. The defendant filed reply to this application at
Exh.9. Perused application, reply, Chamber Summons No. 488/2021
and reply thereon. I have also gone through proceedings of Commercial
Suit No. 79/2019. Heard learned counsel Shri Giriraj for the plaintiff
and learned counsel Shri S.Bhojwani for the defendant.
2. Learned counsel Shri Giriraj for the plaintiff submitted that
the plaintiff had filed the suit by assuming that the defendant is the
company registered under the provisions of the Company Act, 1956. He
further submitted that the plaintiff came to know after going through
written statement Exh.4 that the defendant is a registered partnership
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Ch/s No. 488/21 in Comm. Suit No. 79/19. 2 Order below Exh.8.
firm. Now, the plaintiff is willing to get details of partners of the firm
so that they can be impleaded in the suit. According to him, letter
dated 09/04/2021 was sent to the defendant. The defendant had given
evasive reply to it on 12/04/2021. It is his contention that all partners
of the partnership firm are necessary parties to the proceeding. If they
are not made party to the suit, it will be difficult to get the decree
executed against them. He further pointed out the circumstances
including situation of Covid19 pandemic justifying filing of the
application with delay. According to him, written statement was filed
in January 2020. Chamber summons is filed in February 2021. Issues
are framed at Exh.7 on 21/01/2021. Then, evidence affidavit is not
filed on record by the plaintiff and evidence has not actually
commenced. By pointing out these aspects revealing from the record,
he submitted that there is no prejudice likely to be caused to the
defendant if this application is allowed. He finally submitted that the
application may be allowed.
3. Learned counsel Shri Bhojwani again pointed out the
developments taken place in the matter. He submitted that written
statement is filed on 23/01/2020 and issues are framed on
21/01/2021. Chamber summons is filed on 04/03/2021. He further
submitted that present application is filed on 21/04/2021. With the
help of these details of dates, he tried to canvass that the plaintiff is
taking steps with lethargy. According to him, grounds mentioned in the
application are not maintainable. The plaintiff cannot rely upon email
addresses appearing on the website to treat the persons mentioned in
the chamber summons as partners of the firm. Trial has commenced.
Now, there is bar to entertain the application as per Order 6 Rule 17
proviso of the CPC. He further submitted that function of the court had
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Ch/s No. 488/21 in Comm. Suit No. 79/19. 3 Order below Exh.8.
started for the short period and the plaintiff failed to take steps.
According to him, Shri Chaturbhuj is a sleeping partner. Maintainability
of the suit is at stake. The plaintiff had knowledge regarding the fact
that Harish is not the partner. He prayed that application Exh.8 as well
as chamber summons may be rejected.
4. After considering rival contentions and material on record,
it is necessary to assess overall contentions of the parties. Para 1 of the
plaint reveals that the defendant is a company registered under the
provisions of the Company Act, 1956. This contention is countered by
the defendant in para 2 of the written statement Exh.4 by stating that
the defendant is a registered partnership firm and not a company.
Therefore, the plaintiff filed Chamber Summons No. 488/2021 to carry
out amendment in the plaint and to make partners of the defendant
firm party to the suit. As a corollary of it, present application is filed to
get details of the partners of the defendant firm. On perusal of the
written statement, it appears that details of all partners working on the
date of transaction have not been disclosed. Therefore, very brief and
vague reference regarding partnership firm of the defendant does not
help the plaintiff to get an idea about names and addresses of the
partners of the partnership firm. In such circumstances, the plaintiff is
not in a position to implead all the partners of the defendant firm as a
party to the suit. Considering failure of the defendant to furnish details
regarding its legal position as a partnership firm, this application is
maintainable under Order 30 Rule 1 of the CPC.
5. Learned counsel Shri Bhojwani for the defendant has relied
upon Order 6 Rule 17 of the CPC while opposing this application.
Considering overall nature of pleadings of the parties, factual aspect
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Ch/s No. 488/21 in Comm. Suit No. 79/19. 4 Order below Exh.8.
needs to be pleaded in consonance with Order 6 Rule 1 of the CPC. If
certain factual aspects are creating a position of confusion affecting to
the further progress in the matter, it is required to be clarified. For this
purpose, Order 30 Rule 1 of the CPC comes into picture in present type
of matters.
6. Learned counsel Shri Bhojwani contended that Shri
Chaturbhuj is a sleeping partner and he cannot be made party to the
proceeding. He further submitted that Shri Harish is not a partner of
the firm. By stating so, he is trying to represent only Shri Dipak C.
Bathija to whom he is representing. It is pertinent to note that Order 30
Rule 1 of the CPC starts with the wording “Any two or more persons
claimed or being labelled as partners and carrying on business in India
may sue or sued in the name of the firm ….......”. In addition to it,
Section 4 of the Indian Partnership Act, 1932 provides that partnership
is the relation between persons who have agreed to share the profits of
a business carried on by all or any of them acting for all. It further
provides that persons who have entered into partnership with one
another are called individually 'partners' and collectively a 'firm' and the
name under which their business carried on is called the 'firm name'. In
addition to it, Section 25 of the Partnership Act, 1932 holds every
partner responsible jointly with all the other partners and also severely
for all acts of the firm done while he is a partner. If this legal position is
taken into account, sole partner cannot be impleaded to the proceedings
and it is necessary to have details of all partners on record so that fate
of Chamber Summons No. 488/2021 can be decided on merit. As
situation of Covid19 pandemic is fluctuating and the courts are not
functioning routinely, either side cannot be blamed for delay in taking
steps. Therefore, aspect of delay cannot be taken into consideration
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Ch/s No. 488/21 in Comm. Suit No. 79/19. 5 Order below Exh.8.
while deciding this application on merit. Considering all above
discussion, I pass the following order :
ORDER
1. Application (Exh.8) is allowed.
2. The defendant is directed to disclose details of all the
partners of the defendant partnership firm including their
addresses who were partners at the time of accrual of the
cause of action within one month from the date of this
order.
3. Application (Exh.8) is disposed off accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 23/06/2021. Mumbai.
1. Dictated on : 23/06/2021.
2. Transcribed on : 23/06/2021.
3. Signed on : 23/06/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/06/2021. 2.32 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 23/06/2021.
Judgment/Order signed by P.O. on 23/06/2021.
Judgment/Order uploaded on 23/06/2021.
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