Final Order 2

Order Details: Chamber summons
Pdf Text: CNR NO : MHCC01-010231-2019. .1. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1795 OF 2019.
IN
L.C. SUIT NO. 9349 OF 1993.
M/s. Arcon Developers +1. ....………………….. … PLAINTIFFS.
V/s.
Jugalkishore Matadin Halwai (Since Deceased
through his L.Rs) and the Others. …......…...…. … DEFENDANTS.
And
Sushila L. Varma and the Others. ……….……... … APPLICANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 23rd November, 2023.
APPEARANCES :
Mr. Nainesh Amin, Ld. Advocate for the Plaintiffs.
Mr. Ghadigaonkar, Ld. Advocate for Defendant Nos.1 (a to e), 2 and 3.
Mr. G.O. Giri, Ld. Advocate for Defendant No.4/MCGM.
Mr.. S.A. Abhyankar, Ld. Advocate for the Applicants.
01. The applicants have taken out this Chamber Summons (for
brevity ‘the Ch/s.’), for their addition as party plaintiffs or as partners of
plaintiff No.1 or alternatively, as the defendants as partners of the said
Firm. Perused the Ch/s.. supporting affidavit of applicant No. 3 (f) and
the plaintiffs' reply. Heard both the sides.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether presence of the applicants is
necessary in order to enable this Court
effectually and completely to adjudicate
upon the questions involved in this suit? ... No.
(ii). What Order? ...............…....................... … As per final Order.
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CNR NO : MHCC01-010231-2019. .2. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By this Ch/s. and supporting affidavit, applicant No. 3 (f) -
Yogesh K. Varma contended that his grandfather namely Matadin Varma
and his father - Kishore Varma were the partners of plaintiff No.1 - Firm.
The said Kishore died on 26.05.1994 and the said Matadin breathed his
last on 13.06.2002. Still, on 16.08.1993, plaintiff No.2 filed this suit on
behalf of plaintiff No.1, without joining them as partners of Firm. More
so, the applicants were not aware about this suit and when they came to
know, they issued letter dtd. 11.09.2019, calling upon plaintiff No. 2 to
comply with the provisions of O. XXX R 1 of the CPC. by joining them as
parties to this suit, wherein he failed. Further, late Matadin and Kishore
were having 25% each share in the said Firm and hence, the applicants,
being their L.Rs., are the necessary parties to this suit. Else, their rights,
title and interest in the said Firm may be affected adversely. In reply, the
plaintiffs denied this Ch/s. as it is filed in collusion with defendant Nos.
1 (a to e), 2 and 3. The applicants did not explain the delay and latches
on their part while filing this Ch/s.. Their presence is also not required
for the suit. Without prejudice, they contended that the applicants may
proceed with their claims against plaintiff No.1, if so permissible in law.
Although, they admitted that late Matadin and Kishore were partners of
plaintiff No.1 and submitted that even, they knew about this suit. That
apart, Mr. Vijay Hegde, the erstwhile counsel of defendant Nos. 1, 2 and
3 was their advocate as well. Hence, without admitting their claims, the
applicants can only have their right to ask for accounts and share in the
residual amounts in the proportionate to shares of deceased partners.
04. The record shows that initially, this Ch/s. was dismissed by
my learned predecessor on 10.12.2019 and being aggrieved by the said
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CNR NO : MHCC01-010231-2019. .3. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
Order, the applicants preferred WP No. 952/2020. It is also the matter
of record that on 03.10.2023, by consent, the said W.P. was disposed of
and the earlier Order of dtd. 10.12.2019 on this Ch/s. was quashed and
set-aside. Simultaneously, the Hon'ble High Court pleased to direct this
Court to rehear this Ch/s., after giving opportunity to the parties to file
documents on record, and decide the suit within 03 months. In response
to the said Order, the plaintiffs placed their additional documents as per
the application (Exhibit 108) and the applicants, as per their application
(Exhibit 111), filed affidavit of applicant No.3(f), letter dt. 27.03.1993,
issued to plaintiff No.2 by late Matadin and Kishore by their counsel Mr.
Vijay Hedge, intimating about the dissolution of this Firm, its reply dtd.
25.05.1993 by plaintiff No. 2 (as per Exhibit 108, these documents are
also filed by the plaintiffs) and copy of the NM reply, filed by defendant
No.2, contending about dissolution of the said Firm.
05. Mr. Abhyankar, learned advocate for the applicants, urged
that as per the above referred letter dtd. 27.03.1993, as the Partnership
Firm of plaintiff No.1 stood dissolved before filing of this suit, the suit
can not be filed in the name of Firm. Moreover, defendant No.2 brought
this fact in view of his NM reply. That apart, the plaintiff also admitted
that the said Firm was dissolved. However, the accounts of the said Firm
are not settled and therefore, the applicants, being the L.Rs. of the said
Matadin and Kishore, are necessary parties to the suit as per Section 43
(1) of the Partnership Act. To support his contentions, he relied on the
matter of Ravinder Singh Ahluwalia V. Kuljinder Singh Ahluwalia, 2009
(5) Mh.L.J. 170. In reply, Mr. Amin, the learned counsel holding for the
plaintiffs, submitted that by virtue of Section 47 of the said Act, even on
dissolution of the Firm, one of its partners can continue with the suit.
Moreover, the scope of this suit is very limited and the rights of all these
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CNR NO : MHCC01-010231-2019. .4. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
partners are to be crystallized after dissolution of the Firm. Being so, the
applicants' presence is not required for deciding this suit. Further, at the
relevant time, Adv. Mr. Hegde represented late Matadin and Kishore and
he also appeared even for defendant Nos. 1, 2 and 3 in this matter. This
itself shows collusion between them.
06. Considering the rival stands, at the outset, it is notable that
by filing this suit, the plaintiffs asked for the specific performance of the
agreement, executed between defendant Nos. 1 to 3 and plaintiff No.1 -
the Partnership Firm, by its partners i.e. plaintiff No.2 and late Kishore,
on 16.07.1987. Here, it is worth to be noted that as per the Partnership
Deed of dtd. 28.03.1987 (Exhibit 19) and Certified extract of Register of
Firms (Exhibit 94), this partnership was at 'Will'. Therein, as per Clause
14, it was agreed that on death or retirement of a partner, the surviving
or continuing partners were entitled to continue with the said business,
after taking legal heirs or nominees of the deceased partner. And, as per
Clause 16, all their disputes or differences, during this partnership, were
subject to arbitration. On this backdrop, the set of correspondence, filed
by the plaintiffs with the application (Exhibit 108) is to be appreciated.
As such, the letter of dtd. 27.03.1993, issued by advocate Mr. Hegde, on
behalf of late Matadin and Kishore, expressed their intention to dissolve
this Partnership Firm. Further, he informed to treat this letter as notice,
issued U/s. 43(1) of the Partnership Act. Hence, in view of this letter, it
can be inferred that this Firm stood dissolved on 27.03.1993 itself. The
record further goes to show that in their reply, on 25.05.1993, plaintiff
No.2 and one another, informed their desire even to join late Matadin
and Kishore in this suit, which they denied by letter of dtd. 11.08.1993,
issued through their Advocate Mr. Hegde, and asked them to ascertain
and settle accounts of the Firm. Lastly, as per the letter dtd. 15.12.1994,
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CNR NO : MHCC01-010231-2019. .5. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
Advocate Mr. Hedge informed that the said Kishore died in May, 1994,
and therefore, the said Matadin was no longer interested in the business
of the Firm. In the light of this record, apparently, it is clarified that late
Matadin and Kishore, during their lifetime, expressed their desire to get
dissolved this Firm and consequently, the said Partnership, being at Will,
was dissolved by virtue of Section 43 (1) of the Partnership Act. Further,
they were made known about filing of this proposed suit long back and
they were not inclined to be joined as parties in this suit. Consequently,
the applicants, being their L.Rs., can't be allowed to contend otherwise
and to travel beyond their stand. Even they couldn't explain inordinate
delay in preferring this Ch/s. and their inaction to join this Firm soon
after demise of late Matadin and Kishore. Above all, scope of this suit is
very restricted. And, by virtue of Clause 16 of the Partnership Deed, the
interse differences of the partners were to be referred to the Arbitration.
Certainly, in view of this suit, the Court is not going to adjudicate upon
their respective rights, arising from this Partnership Firm and the same
is not subject matter of this suit. In this background, I am of the opinion
that the applicants' presence is not required for the effectual decision of
this suit. However, they are at liberty to exercise all the remedies legally
available to them, as regards the settlement of accounts of the Firm.
07. To sum-up, while arguing this Ch/s., learned advocate for
the plaintiffs submitted that under Section 47 of the Partnership Act, the
continuing partner in the said Firm has every right to proceed with the
suit, even after its dissolution. Further, the
interse rights of the partners
of plaintiff No. 1 - Firm are yet to be crystallized. Furthermore, there is
collusion in between the applicants and defendant Nos. 1 to 3, as once
they were so represented by Advocate Mr. Hegde only. With reference to
his submissions, it is pertinent to note that representation of both the
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CNR NO : MHCC01-010231-2019. .6. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
parties by Advocate Mr. Hegde is the matter of record and the same can
not be held as collusion, at this stage of the matter. Moreover, the issue
regarding effect of suit agreement on dissolution of the Firm is already
framed and it would be the matter of trial. I have also gone through the
ratio laid in the case of Ravinder Singh Ahluwalia, cited supra. I am also
in respectful agreement with the same. However, with all respects, I am
of the opinion that considering nature of this suit and its limited scope,
the same is not appealing to the present set of facts. In view of my these
discussions, these applicants are neither necessary nor proper parties to
this suit and it can be adjudicated in their absence. Moreover, it is the
settled proposition that the plaintiffs being '
dominus-litis' of the suit can
not be forced to add any person as a 'party' to his suit, unless it is held,
keeping in view the pleadings and the reliefs claimed therein, that the
person sought to be added as 'party' is a necessary party and without his
presence neither the suit can proceed and nor the relief can be granted.
It is only then such person can be allowed to be a party, else the suit will
have to be dismissed for his non-impleadment as party. However, here,
this is not the position in this suit. Hence, I answered point No.1 in the
negative and in answer to point No. 2, I pass the following Order:
-: O R D E R :-
(i). Chamber Summons No.1795/2019 stands dismissed.
(ii). Chamber Summons No.1795/2019, is, accordingly,
disposed of.
Sd/-
{A.G. Santani}
Mumbai. Judge,
Dated : 23.11.2023. City Civil Court, Mumbai.
Dictated on : 23.11.2023.
Transcribed on : 23.11.2023.
Checked and Signed on : 23.11.2023.
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CNR NO : MHCC01-010231-2019. .7. CH/S No. 1795/2019 in
L.C. Suit No. 9349/1993.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
24.11.2023 at 12.30 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 23.11.2023
Judgment/Order signed by P.O. on 23.11.2023
Judgment/Order uploaded on 24.11.2023
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