Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3972/2019 ORDER 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3972 OF 2019
IN
SUMMARY SUIT NO.407 OF 2018
(MHCC010110052019 )
Mr. Kiran Vrajlal Goradia
Age 64 years:
Occ: Business
Carryin on business at 25 SAgar
Building Vitthalwadi, Kalbadevi,
Mumbai.40002.
… Plaintiff
Vs.
1. M/s. Kiran Brothers
A partnership firm duly registered the
Indian Partnership Act, Carrying on
business at 68/72, ChampaGalli, Ground
Floor, Opposite Office Galli, M. J.
Market, Kalbadevi Road, Mumbai
400002.
2. Kaushik Vrajlal Goradia
Aged 61 years, Occupation: Business.
3. Usha Kaushik Goradia
Aged 57 years, Occupation: Business
4. Sagar Kaushik Goradia
Aged 36 years, Occupation: Business.
Defendants No.2,3 and 4 also carrying
on Business at 68/72 ChampaGalli,
Ground Floor, Opposite Office Galli, M.
J. Market, Kalbadevi Road, Mumbai
400002. … Defendants
Appearances:
Adv. Dalal for the plaintiff .
Adv. Janvi Mane for defendants No.2,3 and 4.
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NM No.3972/2019 ORDER 2
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 5th January, 2022.
ORDER
1. This Notice of Motion is filed by defendants and submitted
that the dispute arose in the suit is arising out of commercial
transaction between parties. Therefore, it is commercial dispute under
section 2 (1) (c) of the Commercial Court Act, 2015. The defendants
submitted that in view of nature of dispute Summary Suit filed by the
plaintiff is not tenable. Therefore, this notice of motion is filed with
request to dismiss the Summary Suit.
2. In reply, the plaintiff submitted that pleading from both
side for summons for judgment is completed. The summons for
judgment was kept for hearing. At this stage after though, to cause
delay the hearing of summons for judgment this motion is deliberately
filed by the defendants. The plaintiff submitted that the plaintiff has
retired from the firm of defendant No.1 on 16/11/2015. From
16/11/2015 he is not partner of the firm. Therefore, there is no
question of commercial dispute between parties.
3. Heard ld. advocates of respective parties. Much emphasis
has given from the side of the defendants that this Court has no
jurisdiction to entertain the Summary Suit. The commercial dispute
means any dispute arising out of commercial relationship between
parties. Here it is admitted that the plaintiff was partner of the firm of
the defendant No.1. It is one of the admitted fact that he has retired
from the firm on 16/11/2015. The deed of retirement is at Exh.'A'
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NM No.3972/2019 ORDER 3
under section 36 of the Partnership Act, 1932 onces the partner is
retired he cease to be a partner of the firm. Therefore, at the time of the
filing of the suit in the year 2018, the plaintiff was not partner of the
firm. However, from Exh'A' the deed of retirement dated 04/11/2015,
it disclosed that the continuing partners the covenant to pay the
retiring partners the sum payable to them by firm as shown in the
balancesheet as on 16/11/2015, within the reasonable period of time.
The same facts is agreed between parties in the agreement dated
04/11/2015 in clause 12. Now, plaintiff wants to recover the amount
shown in the terms of clause 12 of the agreement. As on the date of
filling of the suit the plaintiff was not partner. However, agreement is
executed between the parties regarding amount. Payable to retired
partner. The continuing partners has agreed to pay the amount without
raising any question of business. Therefore, the plaintiff has filed suit
on the basis of agreement. The contents of clause 12 will not came
within the perview of commercial dispute. The continuing partners have
agreed to pay the amount to the plaintiff on the basis of agreement.
Therefore, from pleading and documents the dispute between parties is
not commercial in nature. Hence, I pass following order:
ORDER
1. Notice of Motion No.3972 of 2019 stands dismissed.
2. Notice of Motion No.3972 of 2019 is disposed of
accordingly.
sd/
(C.V. PATIL)
Adhoc Judge,
Date : 05/01/2022 City Civil Court, Gr. Bombay
Dictated on : 05/01/2022,
Transcribed on : 07/01/2022,
HHJ signed on : 10/01/2022.
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NM No.3972/2019 ORDER 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
14/01/2022 01.25 p.m. Mr. Suraj Ambekar
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
05/01/2022
JUDGEMENT /ORDER signed by P.O. on 10/01/2022
JUDGEMENT /ORDER uploaded on 14/01/2022
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