Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2356/18 to 2370/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2356 OF 2018
IN
SUMMARY SUIT NO. 1347 OF 2017
CNR NO. : MHCC010076462018
Darshana Chirag Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2357 OF 2018
IN
SUMMARY SUIT NO. 1347 OF 2017
CNR NO. : MHCC010076472018
Darshana Chirag Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2358 OF 2018
IN
SUMMARY SUIT NO. 1347 OF 2017
CNR NO. : MHCC010076482018
Darshana Chirag Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
A N D
NOTICE OF MOTION NO. 2359 OF 2018
IN
SUMMARY SUIT NO. 1348 OF 2017
CNR NO. : MHCC010076492018
Pushpa Rajendra Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
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ALONG WITH
NOTICE OF MOTION NO. 2360 OF 2018
IN
SUMMARY SUIT NO. 1348 OF 2017
CNR NO. : MHCC010076502018
Pushpa Rajendra Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2361 OF 2018
IN
SUMMARY SUIT NO. 1348 OF 2017
CNR NO. : MHCC010076512018
Pushpa Rajendra Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
A N D
NOTICE OF MOTION NO. 2362 OF 2018
IN
SUMMARY SUIT NO. 1360 OF 2017
CNR NO. : MHCC010076452018
Chirag Bharat Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2363 OF 2018
IN
SUMMARY SUIT NO. 1360 OF 2017
CNR NO. : MHCC010076372018
Chirag Bharat Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
-- 2 of 12 --
3 NM 2356/18 to 2370/18
ALONG WITH
NOTICE OF MOTION NO. 2364 OF 2018
IN
SUMMARY SUIT NO. 1360 OF 2017
CNR NO. : MHCC010076382018
Chirag Bharat Shah
Through POA Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
AND
NOTICE OF MOTION NO. 2365 OF 2018
IN
SUMMARY SUIT NO. 1359 OF 2017
CNR NO. : MHCC010076392018
Bharat Hirji Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2366 OF 2018
IN
SUMMARY SUIT NO. 1359 OF 2017
CNR NO. : MHCC010076402018
Bharat Hirji Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2367 OF 2018
IN
SUMMARY SUIT NO. 1359 OF 2017
CNR NO. : MHCC010076412018
Bharat Hirji Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
-- 3 of 12 --
4 NM 2356/18 to 2370/18
A N D
NOTICE OF MOTION NO. 2368 OF 2018
IN
SUMMARY SUIT NO. 1343 OF 2017
CNR NO. : MHCC010076422018
Rahul Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2369 OF 2018
IN
SUMMARY SUIT NO. 1343 OF 2017
CNR NO. : MHCC010076432018
Rahul Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
ALONG WITH
NOTICE OF MOTION NO. 2370 OF 2018
IN
SUMMARY SUIT NO. 1343 OF 2017
CNR NO. : MHCC010076442018
Rahul Bharat Shah ...Plaintiff
Versus
M/s. Chirag Corporation & Ors. ...Defendants
Appearance:
Mr. Jeetendra Ranawat, Advocate for the Plaintiff.
Ms. Leena Sapra, Advocate for the Defendants.
CORUM :SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 21/12/2019.
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COMMON ORAL ORDER
1. The above notice of motions are filed by defendants under
Order 7 Rule 11 of Code of Civil Procedure to reject the plaint on
the ground that there is no cause of action against these
defendants. The defendants in the notice of motion stated that
they were not the partners of the firm, when the suit was filed. The
defendants in the notice of motion retired from the partnership
firm of defendant no. 1 from 15.10.2006 and 01.11.2015. The
notice was published in respect of their resignation from
defendant no. 1 firm in the newspaper 'Loksatta' and 'Free Press
Journal' dated 27.10.2006. The defendant Rajesh Shrimankar did
not sign the alleged cheques for alleged discharge of the liability
of plaintiff. These defendants are not necessary parties and no
cause of action arose against them to file the suit. Hence, notice of
motion. The notice of motion is supported by affidavit of these
defendants affirming the contents of their affidavit.
2. The plaintiff filed reply to the notice of motion and denied
the contents of notice of motion in toto. The plaintiff stated that
Order 7 Rule 11 of Code of Civil Procedure is not applicable to
Summary Suits under Order 37 of Code of Civil Procedure.
Therefore, the notice of motion is not maintainable. These
defendants are necessary parties. Hence, prayed to reject the
notice of motion.
3. Heard advocate Smt. Leena Sapra for defendants and
advocate Mr. Ranawant for the plaintiff. Perused contents of notice
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of motion and reply supported by respective affidavits. I have gone
through the contents of the plaint.
4. Advocate Smt. Leena Sapra has drawn my attention to the
documents relied by these defendants to show that these
defendants have retired from the partnership firm and when the
suit was filed, they were not partners of the firm. The resignation
of these partners are noted in the Registrar of Firms. They have
also issued public notice in the newspaper informing the public in
general that these defendants are not partners of the firm.
Advocate Leena Sapra has also drawn my attention to the Deed of
Retirement cum Partnership dated 15.10.2016 Clause 5 that,
“Continuing Partners shall keep indemnified the Retiring Partners in
respect of all liabilities of partnership firm incurred prior to 15th October,
2016 and it is also agreed between the Continuing Partners & Retiring
Partners that the Retiring Partners hence forth will not be liable for any
liability of the partnership firm”.
5. Advocate Smt. Leena Sapra has also drawn my attention to
the reply notice of defendant no. 1 dated 1st September, 2017 (in
Summary Suit No. 1343 of 2017) that the defendants informed in
the said reply notice to the plaintiff that these defendants have
resigned. Therefore, question of issuing or signing any cheque in
favour of plaintiff does not arise. The plaintiff was aware of the
facts prior to filling of the suit then too he impleaded these
defendants without any cause of action.
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6. Advocate Smt. Leena Sapra for these defendants have filed
dates and events of these defendants in the partnership firm of
defendant no. 1 as under:
Rajesh Nandlal
Shrimankar HUF
(Defendant No. 4)
Shefali Chetan
Shrimankar
(Defendant No. 5)
Chetan Suryakant
Shrimankar
(Defendant No. 6)
Date of Retirement from
defendant no. 1
Partnership Firm on
15.10.2016.
Entry No. 5(B) in
Registrar of Firm
Certificate 01.04.2016.
Entry No. 6(b) in
Registrar of Firm
Certificate 15.10.2016.
Published in News Paper
Lok Satta and Free Press
Journals on 27.10.2016.
Reply to Demand Notice
Exh. “H” to Plaint.
Date of Retirement from
defendant no. 1
Partnership Firm on
01.11.2015.
Entry No. 4(b) in
Registrar of Firm
Certificate 01.11.2015.
Published in News Paper
Lok Satta and Free Press
Journals on 27.10.2016.
Reply to Demand Notice
Exh. “H” to Plaint.
Date of Retirement from
defendant no. 1
Partnership Firm on
15.10.2016.
Entry No. 6(b)(1) in
Registrar of Firm
Certificate 01.11.2015.
Published in News Paper
Lok Satta and Free Press
Journals on 27.10.2016.
Reply to Demand Notice
Exh. “H” to Plaint.
7. Advocate Smt. Leena Sapra for defendants has relied on
authority reported in i) N.K. Wahi Vs. Shekhar Singh & Ors., 2007 (3)
Bom.C.R. 88; ii) Mrs. Anit Malhotra Vs. Apparel Export Promotion Council
& Anr. in Criminal Appeal No. 2033 of 2011 (Hon'ble Bombay High Court)
decided on 8th November, 2011; iii) S.M.S. Pharmaceuticals Ltd. Vs. Neeta
Bhalla & Anr., (2017) 4 Supreme Court Cases 70. Advocate for
defendants argued that though these authorities are in criminal
proceeding under Section 138 of the Negotiable Instruments Act
then too the ratio in respect of compliant to be filed against the
retiring/ resigned partners are not tenable. The said ratio is
applicable.
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8. On the other hand advocate Mr. Ranawat for plaintiff argued
that the notice of motion under Order 7 Rule 11 of Code of Civil
Procedure is not maintainable for Summary Suits. He has relied on
authority reported in, Prem Prakash Batra Vs. Rajeev Ahuja in CS
No.222/14 decided on 20.11.2015. Advocate Ranawat for the plaintiff
argued that the authority relied by the defendants are in respect of
criminal proceeding. The ratio in these authorities cannot be
applied to the civil proceedings.
9. The plaintiff has filed the suit against the defendants for
recovery of amount advanced to these defendants under Order 37
of Code of Civil Procedure. The plaintiff has come with the case
that the defendant no. 1 through its partner has executed
Promissory Note in favour of plaintiff. One of the partners has
issued cheque for discharge of the outstanding amount to the
plaintiff. The claim of the plaintiff is admitted by the defendants by
issuance of cheques in favour of plaintiff. The defendant no. 1 has
falsely denied in their reply that they have taken any loan from the
plaintiff. In the plaint, the plaintiff has stated that the cause of
action arose after three months of Promissory Note, when these
defendants failed to remit the amount. The plaintiff in para no. 2
of the plaint stated that according to the Registrar of Firms records
these defendants are / were partners of defendant no. 1 till date
and who are having their residence address as mentioned in the
cause title.
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10. These notice of motion are filed by defendants only on the
ground that as these defendants have resigned/ retired from the
partnership firm, therefore they are not necessary parties to the
suit and no cause of action arose against these defendants. The
cause of action has to be gathered from the averments in the
plaint. The plaintiff has pleaded the cause of action i.e. recovery of
amount from these defendants being partners of the firm. One of
the partner has executed Promissory Note on behalf of defendant
no. 1 partnership firm. These defendants do not deny that they
were partners of the firm. The transaction stated by the plaintiff is
of the year 2014. These defendants have filed the Retirement cum
Partnership Deed along with notice of motion. The necessary party
is one without whom no order can be effectively made and the
proper party is one whose presence is necessary for a complete and
final decision of question involved in the proceedings.
11. I have gone through the authorities relied on by both the
parties. The authorities relied by advocate Smt. Leena Sapra for
the defendants is under Section 138 of the Negotiable Instruments
Act in respect of the criminal liability of the partners/ Directors of
the firm. The authority relied by the advocate Shri. Ranawat for
the plaintiff is in respect of application under Order 7 Rule 11 and
application under Order 37 Rule 3(5) Code of Civil Procedure. The
said authority is of Senior Civil JudgecumRent Controller, District
Shahdara, Karkardooma Courts, Delhi. Therefore the ratio in the
said authority is not binding on this Court. Order 7 Rule 11 of
Code of Civil Procedure states 'Rejection of Plaint'. The said
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provision does not exclude the 'Plaint' under Order 37 of Code of
Civil Procedure.
12. Considering the pleading, the cause of action to file the suit
against defendants are in respect of recovery of amount advanced
by plaintiff to defendant no. 1 firm of which these defendants were
partners. The plaintiff has impleaded them as a necessary / proper
party. It is for the plaintiff to prove that they are necessary parties.
The misjoinder of party will have only effect at the time of decision
that no relief can be granted against these defendants in case
plaintiff fails to prove their liability to pay the amount. The notice
of motion under Order 7 Rule 11 of Code of Civil Procedure to
reject the plaint on the ground of no cause of action against these
defendants is not tenable. Hence, pass the following order :
ORDER
1. Notice of Motion nos. 2356/2018, 2357/2018,
2358/2018 in Summary Suit No. 1347/2017,
notice of Motion nos. 2359/2018, 2360/2018
and 2361/2018 in Summary Suit No.
1348/2017, notice of motion nos. 2362/2018,
2363/2018 and 2364/2018 in Summary Suit
No. 1360/2017, notice of motion nos.
2365/2018, 2366/2018 and 2367/2018 in
Summary Suit No. 1359/2017 and notice of
motion nos. 2368/2018, 2369/2018,
2370/2018 in Summary Suit No. 1343/2017
are dismissed.
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2. Accordingly all the above notice of motions are
disposed of.
3. The copy of order of notice of motions be kept
in Suit Nos. 1348/2017, 1360/2017,
1359/2017 and 1343/2017.
(Smt. S.S. Nagur)
Adhoc Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 21/12/2019.
Transcribed on : 21/12/2019.
Sign on : 21/12/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21/12/2019 3.40 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
21/12/2019
Judgment/order signed by P.O on 21/12/2019
Judgment/order uploaded on 21/12/2019
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