Order 2

Order Details: Order below exhibit
Pdf Text: Comm.Suit No. 27/2020. 1 Order below Exh.6.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 6
IN
COMMERCIAL SUIT NO. 27 OF 2020
Lalit Bhagwandas Narang )...Plaintiff
Versus
M/s. Ahuja Properties & Developers and Others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 11th OCTOBER, 2021.
Mr. C.K.Mhatre h/f Mr. Paranjape, Advocate for the plaintiff.
Ms. Shraddha Birwadkar and Mr. Madhukar Mulay, Advocates for the
defendants no.1 to 4 and 6.
ORDER
1. This is an application filed by advocate for defendants no.4
and 6 for deletion of name of defendant no.6. Perused application,
reply (Exh.7) and proceeding of the case. Heard learned counsel Mr.
C.K.Mhatre for the plaintiff and learned counsels Ms. Shraddha
Birwadkar and Mr. Madhukar Mulay for the defendants no.1 to 4 and 6.
2. Learned counsel Shraddha Birwadkar for defendants no.4
and 6 relied upon contents in Exh.6 and submitted that defendant no.6
is not partner of defendant no.4 company i.e. M/s. Ahuja Developers.
The said proprietary firm has been converted into a private limited
company and functioning under the name and style as 'Ahuja Housing
and Developments Private Limited' since 03/07/2001. Said company
has changed its name as 'Ashtvinayaka Builders and Developers Private
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Comm.Suit No. 27/2020. 2 Order below Exh.6.
Limited' as per certificate of incorporation dated 25/03/2010. She
prayed that application (Exh.6) may be allowed.
3. On the other hand, learned counsel Shri C.K.Mhatre for the
plaintiff submitted that defendant no.6 being a partner of defendant
no.4 is a proper and necessary party to the present suit. The defendants
have not stated provisions applicable to the present application. The
defendants failed to provide exact details of alleged incorporation of the
firm into private limited company and subsequent change of name.
Alleged name incorporated into private limited company is different
than the parties to the suit and the defendants are trying to mislead the
court. Writ of summons are served upon the defendants without any
objection. He further relied upon Rule 62 of City Civil Court Rules,
1948 and submitted that the present application is filed without written
statement and defendant no.6 cannot be allowed to defend herself
without leave of the Court. Defendants no.4 and 6 are parties to the
Bill of Exchange placed on record with the plaint. According to him,
defendant no.6 is responsible for the acts of defendant no.4 as per
Section 25 of the Indian Partnership Act, 1932. He also relied upon
Section 32 of the Negotiable Instruments Act, 1881 and submitted that
acceptor of Bill of Exchange is liable for payment and responsibility is
casted on the acceptor. He further submitted that the defendants have
not placed on record any document to show that partnership firm has
been dissolved. He further submitted that public notice has to be given
regarding dissolution of partnership firm as per Section 45 of the Indian
Partnership Act, 1932. The defendant has signed Bill of Exchange for
defendant no.4. There is no evidence to show that proprietary concern
has been converted into a company. Lastly, he referred Order I Rule 3
and 6 of the Civil Procedure Code and submitted that right to relief
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Comm.Suit No. 27/2020. 3 Order below Exh.6.
arises against these defendants and defendants no.4 and 6 are jointly
and severally liable on the contract i.e. Bill of Exchange and therefore,
they are necessary parties to the suit. He prayed for rejection of the
application.
4. Learned counsel Shri Madhukar Mulay for defendants no.1
to 4 and 6 submitted in his reply argument that proprietary concern is
converted into private limited company and therefore, application
(Exh.6) may be allowed.
5. Considering rival submissions and material on record, it
appears that the plaintiff is relying upon Bill of Exchange dated
26/02/2016 executed for payment of Rs.15,00,000/ for the purpose of
initiating the action in the form of present suit. The Bill of Exchange
bears stamp of defendants no.1 and 4 and it is signed by their partners.
It is specific contention of defendants no.4 and 6 that defendant no.6 is
not partner of defendant no.4 company which is converted into a
private limited company known as 'Ahuja Housing & Developments
Private Limited' since 03/07/2001. They have further stated about
change in name of the company as per certificate of incorporation dated
25/03/2010. In short, defendants no.4 and 6 are claiming that
existence of defendant no.4 has come to an end as a partnership firm
due to conversion of it in a private limited company in the year 2001.
In such circumstances, they have to explain the use of stamp of the firm
and signing of Bill of Exchange dated 26/02/2016 on behalf of
defendant no.4. Overall contention of defendants no.4 and 6 reveals
that they continued to represent as a partnership firm and its partner
respectively even after conversion of the partnership firm into a private
limited company for getting huge amount from the plaintiff. Then, they
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Comm.Suit No. 27/2020. 4 Order below Exh.6.
are shirking their responsibility by taking above stated stand.
6. In the light of above discussion, defendants no.4 and 6
cannot be permitted to get absolved from their responsibility as pleaded
by the plaintiff at the threshold of the proceeding in the suit. The
plaintiff is entitled to get an opportunity to prove his case in respect of
responsibilities of defendants no.4 and 6 regarding his claim in the
plaint. Learned counsel Shri C.K.Mhatre has rightly relied upon Section
32 of the Negotiable Instruments Act, 1881 as well as Section 25 and 45
of the Indian Partnership Act, 1932 in order to explain liabilities of
these defendants to make payment. In short, defendants no.4 and 6 are
necessary parties to the suit and their names cannot be deleted by
resorting to Order I Rule 10 (2) of the CPC. Hence, I pass the following
order :
ORDER
1. Application (Exh.6) is rejected.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 11/10/2021. Mumbai.
1. Dictated online on : 11/10/2021.
2. Signed on : 11/10/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 27/2020. 5 Order below Exh.6.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11/10/2021. 5.39 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 11/10/2021.
Judgment/Order signed by P.O. on 11/10/2021.
Judgment/Order uploaded on 11/10/2021.
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