Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 4587-19 in S.C.SUIT no.3131-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 4587 OF 2019
(CNR no. MHCC010126132019)
IN
SHORT CAUSE SUIT NO. 3131 OF 2019
(CNR no. MHCC010123882019)
1. Amarnath Bhaskar Yadav ]
Aged 38 years, Occu : Business ]
2. A. M. Yogesh ]
Aged 39 years, Occu : Business ]
3. Raghu Putte Gowda ]
Aged 38 years, Occu : Business ]
4. Manja Subbe Gowda ]
All are presently having address at ]
M/s. Royal Aqua, Gala No.1, ]
Akram Compound, Haji Market, ]
A. G. Link Road, Asalfa Village, ]
Ghatkopar (West), Mumbai 400 084. ]....Plaintiffs
V/s
1. Irfan Akramullah Mailk ]
Aged 46 years, Occu : Business ]
Residing at Room No. 1, ]
Akram Compound, Haji Market, ]
A. G. Link Road, Asalfa Viilage, ]
Ghatkopar (West), Mumbai – 84 ]
2. Rashid Akramullah Malik ]
Aged 47 years, Occu : Business ]
A/20, Khrunbi Apt., New Anna Sagar CHS., ]
Tilak Nagar, Kurla(West), Mumbai400 072. ]....Defendants
Appearances:
Ld. Advocate Mrs. Sarita S. Donde for the Plaintiffs.
Ld. Advocate Mrs. Nayan Chipale for the defendants.
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2 NM no. 4587-19 in S.C.SUIT no.3131-19
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 15th January, 2019
O R A L O R D E R
1. This is an application by Notice of Motion for rejection of plaint
under Order VII Rule 11 of The Code of Civil Procedure, 1908.
2. The grounds for rejection of plaint made in the application are
two fold i.e. (a) suit appears from the statements in the plaint to be
barred by Section 69 of The Indian Partnership Act, 1932, (b) the plaint
does not disclose cause of action.
3. Ld. Advocate for the defendant no.1 has pointed out that despite
the alleged Memorandum of Understanding (hereinafter “MOU”) is
made between the defendant no.1 and partnership firm M/s. Royal
Aqua of the present plaintiffs, there is no document tendered by the
plaintiffs to show that the said partnership firm is registered and the
persons suing have been shown in the register of the firms as partners
in the said firm and therefore, suit is barred by Section 69 of The
Indian Partnership Act, 1932. She has further argued that in the alleged
unregistered MOU between defendant no.1 and plaintiffs there is no
whisper that the possession of the suit premises was handed over to the
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3 NM no. 4587-19 in S.C.SUIT no.3131-19
plaintiffs and vague averments are made in the plaint in respect of
possession. She has narrated the case of defendant no.1 that he has
entered into registered agreement of Leave and Licence of the suit
premises with one Ajit Kumar Singh son of Virendra Kumar Singh on
20.07.2019 and on the same day possession of suit premises was
handed over to him. So, according to the Ld. Advocate for the
defendants, the plaintiffs misguided this Court under pretext that they
have documents showing their possession and obtained adinterim relief
on 25.10.2019 and, thereafter, took possession of the suit premises
forcibly and therefore, they cannot be permitted to continue such
unlawful possession.
4. I have gone through the Notice of Motion, affidavit annexed
thereto and reply filed by the plaintiffs. A Perusal of Order VII Rule 11
of The Code of Civil Procedure, 1908 makes it clear that the relevant
facts which need to be looked into for deciding an application
thereunder are the ‘averments in the plaint’. With regard to the first
contention that the suit is barred by Section 69 of The Indian
Partnership Act, 1932, the said Section creates bar for enforcement of
right arising from contract if the firm is unregistered and the names of
the persons suing are not shown in the register of firms. It will be useful
to reproduce Section 69,
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4 NM no. 4587-19 in S.C.SUIT no.3131-19
69. Effect of nonregistration
(1) No suit to enforce a right arising from a contract or
conferred by this Act shall be instituted in any Court by or
on behalf of any person suing as a partner in a firm against
the firm or any person alleged to be or to have been a
partner in the firm unless the firm is registered and the
person suing is or has been shown in the Register of Firms
as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be
instituted in any Court by or on behalf of a firm against any
third party unless the firm is registered and the persons
suing are or have been shown in the Register of Firms as
partners in the firm.
(3) The provisions of subsections (1) and (2) shall apply also
to a claim of setoff or other proceeding to enforce a right
arising from a contract, but shall not affect
(a) the enforcement of any right to sue for the dissolution of
a firm or for accounts of a dissolved firm, or any right or
power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court
under the Presidencytowns Insolvency Act, 1909, or the
Provincial Insolvency Act, 1920, to realise the property of
an insolvent partner.
(4) This section shall not apply
(a) to firms or to partners in firms which have no place of
business in the territories to which this Act extends, or
whose places of business in the said territories, are situated
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5 NM no. 4587-19 in S.C.SUIT no.3131-19
in areas to which, by notification under Section 56, this
Chapter does not apply, or
(b) to any suit or claim of setoff not exceeding one hundred
rupees in value which, in the Presidencytowns, is not of a
kind specified in Section 19 of the Presidency Small Cause
Courts Act, 1882, or outside the Presidencytowns, is not of
a kind specified in the Second Schedule to the Provincial
Small Cause Courts Act,1887, or to any proceeding in
execution or other proceeding incidental to or arising from
any such suit or claim.
The prohibition contained in Section 69 is in respect of suit
instituted to enforce rights arising from the contract. After careful
reading of the plaint, particularly the prayer clauses, it can be seen that
the plaintiffs have prayed for the relief of permanent injunction
restraining the defendants from dispossessing the plaintiffs from the suit
premises without following due process of law and not to disturb,
obstruct peaceful possession of suit premises. There are also prayers for
permanent injunction restraining the defendants from obstructing the
plaintiffs from entering the suit premises and restraining them from
creating third party interest in the suit premises. From these prayers in
the plaint, it is clear that the plaintiffs are not seeking enforcement of
their rights arising from the contract. There are no prayers for
declaration, specific performance, money recovery etc. The plaintiffs are
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6 NM no. 4587-19 in S.C.SUIT no.3131-19
merely seeking preventive relief of injunction against defendants from
dispossession and obstruction to their possession without following due
process of law. Therefore, the suit cannot be said to be barred for non
registration of partnership firm of the plaintiffs.
5. It is also alleged by the defendant no.1 that the plaint does not
disclose a cause of action. The words “cause of action” mean the whole
bundle of material facts which are necessary for plaintiffs to prove in
order to entitle him to the reliefs in the suit. It is also trite law that the
Court is bound to reject the plaint if it does not disclose cause of action.
In this case the whole argument of the defendant is based on the fact
that there is no express averment in the plaint that the possession of the
suit premises was taken by the plaintiffs on particular date and there is
registered document showing that the possession of the suit premises
was handed over to Ajit Kumar Singh on 20.07.2019. As mentioned
earlier, for deciding an application under Order VII Rule 11 of The Code
of Civil Procedure, 1908 only the plaint averments have to be
considered. Even though specific date of commencement of possession
of the plaintiffs is not mentioned in the plaint, in paragraph no.4 it is
contended that the plaintiffs are in possession of the suit premises since
March, 2019 by virtue of MOU dated 16.03.2019. In paragraph no.5 of
the plaint, it is further mentioned that after handing over possession to
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7 NM no. 4587-19 in S.C.SUIT no.3131-19
the plaintiffs, they continued to use and occupy the same exclusively. In
paragraph no.8, it is averred that the plaintiffs are in settled possession
of the suit premises after execution of the MOU. Therefore, whether
they are in possession of the suit premises on the date of filing of the
suit or not is the real dispute involved in the suit which can be decided
only after trial. At this stage, it cannot be said that the plaint does not
disclose a cause of action only because the defendant no.1 has come up
with registered Leave and License agreement dated 20.07.2019. The
plaint can certainly be rejected if it does not show the cause of action
but it cannot not be rejected on the ground that the cause of action is
not likely to be succeed. For all the above reasons I do not find that the
plaint is liable to be rejected on both grounds. Hence, the following
order:
ORDER
1. Notice of Motion No.4587 of 2019 is dismissed.
2. Costs in cause.
(C. V. Marathe)
Judge,
Date : 15.01.2020 City Civil Court, Gr. Mumbai.
Dictated on : 15.01.2020
Transcribed on : 15.01.2020
Signed by HHJ on : 15.01.2020
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8 NM no. 4587-19 in S.C.SUIT no.3131-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 15.01.2020 at 5.37 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
15/01/2020
JUDGMENT/ORDER signed by
P.O. on
15/01/2020
JUDGMENT/ORDER uploaded
on
15/01/2020
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