Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010133402019 Presented on 19/12/2019
Registered on 19/12/2019
Decided on 20/08/2025
Duration 05Y: 08M: 01D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 4882 OF 2019
IN
SUMMARY SUIT NO. 462 OF 2016
1. M/s. Rishab Steel House & Ors. ]...Applicants/Org.defendants
V/s.
Dilip Choudhary HUF Karta ]...Respondent/Org.Plaintiff
Appearance:
Ld. Adv. Dipesh Siroya for the plaintiff.
Ld. Adv. Hetel Laghave for the defendants.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 20/08/2025
O R D E R
01. This notice of motion is filed by defendant No.3 to strike
out his name from the suit.
02. It is submitted on behalf of the defendant No.3 that
plaintiff has filed suit against defendants for recovery of money. It is the
contention of plaintiff that defendant No.1 is a partnership firm and
defendant No. 3 is one of the partner of defendant No.1. It is further
submitted that the partnership came into existence on 22/02/2013
between defendant No.2, namely Mr. Nagraj T. Bhansali and grand-
father of defendant No. 3 i.e. Mr. Tagraj D. Bhansali. Defendant No. 3 to
-- 1 of 5 --
2 NM No.4882/2019
SUM SU No.462/2016
support said contention has filed photocopy of partnership deed at
Exh. A to said notice of motion. Further grand father of defendant No. 3
expired in the year 2014. Therefore, defendant No.1 partnership came
to be dissolved and it was converted into proprietorship concern in the
year 2015. Defendant No. 2 is the proprietor of said firm and to support
said contention, defendant No. 3 has filed order of Sale Tax Officer,
Mumbai dated 10/03/2015 at Exh.B attached to notice of motion.
Defendant No. 3 was never partner of the partnership firm i.e. M/s.
Rishabh Steels (House). The plaintiff has filed present suit in the year
2016. This defendant is not concerned with defendant No. 1 and is not
involved in the suit transaction. Hence, name of defendant No. 3 may
be strike out from the plaint. Hence, notice of motion may be allowed.
03. On the other hand, it is argued on behalf of plaintiff that
defendant No.3 has taken out this notice of motion to strike out his
name from the plaint on the ground that he is not partner of defendant
No. 1. However, defendant No. 3 shows as a partner of defendant No. 1
since January, 2011 and plaintiff has relied on print outs obtained from
Google at Exh. A and B. It is further submitted that as per clause 17 of
partnership deed produced by defendant No.3, partnership deed cannot
automatically convert into proprietorship firm. Further, after death of
one of the partner, partnership firm dissolves and existing partner has
options either to create new partnership with legal heirs of deceased
partner or to continue as a proprietorship. The defendants have not
brought on record whether any procedure is followed to convert
partnership firm into proprietorship concern. Therefore, notice of
motion taken out by defendant No. 3 is not tenable and liable to be
dismissed. Hence, notice of motion may be dismissed with costs.
-- 2 of 5 --
3 NM No.4882/2019
SUM SU No.462/2016
04. Perused notice of motion and record of the proceedings.
Heard both the parties. On perusing record, it appears that plaintiff has
filed suit for recovery against defendants. As per the plaintiff defendant
No. 1 is a partnership firm and defendants No. 2 and 3 are partners of
defendant No. 1. Further, defendant No. 3 has taken out this notice of
motion to strike out his name on the ground that is not partner of
proprietorship firm i.e. defendant No. 1. Even, on perusing pleadings of
the plaintiff, it appears it is pleaded that defendant No. 2 approached
the plaintiff for financial help. Further, it is the contention of plaintiff
that confirmation of account at Exh. D to the plaint is issued by
defendant No. 1 and it is signed by defendant No. 2. It is pertinent to
note that plaintiff has not specifically pleaded role of defendant No. 3 in
the suit transaction. Defendant No. 3 has relied on photocopy of Deed
of Partnership dated 22/02/2013 at Exh.A attached to notice of motion.
On perusing said partnership deed, it appears that Mr. Nagraj Tagraj
Bhansali i.e. defendant No. 2 and Mr. Tagraj Dulaji Bhansali continued
the partnership in view of partnership deed dated 22/02/2013.
Further, it appears that Mr. Pavankumar T. Bhansali, Mr. Dineshkumar
Tagraj Bhansali and Smt. Chandrika N. Bhansali retired from
partnership deed. Thus, it appears that since 01/02/2013 only
defendant No. 2 and Mr. Tagraj Dulaji Bhansali were the partners of
defendant No. 1 partnership firm.
05. Further, it is the contention of defendant No. 3 that after
demise of Tagraj D. Bhansali in the year 2014, defendant No. 1
partnership converted into proprietorship concern since 2015 as per the
order of Sale Tax Officer, Mumbai dated 10/03/2015 at Exh. B attached
to the notice of motion. On perusing said order, it appears that its
constitution status is shown as “proprietor” and defendant No. 2 is the
-- 3 of 5 --
4 NM No.4882/2019
SUM SU No.462/2016
proprietor of said Rishabh Steel House. However, plaintiff has relied on
some print outs obtained from Google at Exh. A and B annexed to the
written arguments. On perusing said documents, it appears that said
printouts are of profile of defendant No. 3 and in said profile it is shown
that defendant No. 3 as partner at Rishabh Steel (House). Even, it is
mentioned as partner of defendant No. 1 and since January, 2011 as a
Managing Director. Further, though plaintiff has filed these documents
at Exhs. A and B to substantiate its contention that defendant No. 3 is
partner of defendant No.1. Further, merely on the basis of profile, it
cannot be assumed or presumed that defendant No.3 is partner of
defendant No.1 firm. Even, in absence of any documentary evidence
contrary to the Partnership Deed dated 22/02/2013, it cannot be
presumed that defendant No. 3 is a partner of defendant No.1 firm.
Hence, I am of the view that it is necessary to strike out the name of
defendant No. 3. Hence, I proceed to pass following order.
ORDER
1. Notice of motion No. 4882/2019 is allowed.
2. Plaintiff is directed to strike out the defendant No. 3 from plaint
and accordingly carry out amendment in the plaint and to file
amended copy of the plaint within 14 days.
3. The plaintiff is directed to provide amended copy of plaint to the
defendants.
4. Notice of motion No. 4882/2019 is disposed of accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date-20/08/2025
Dictated on : 20/08/2025
Corrected & signed on : 22/08/2025
-- 4 of 5 --
5 NM No.4882/2019
SUM SU No.462/2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
25 /08/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
20/08/2025
JUDGMENT/ORDER signed by P. O. on 22/08/2025
JUDGMENT/ORDER uploaded on 25/08/2025
-- 5 of 5 --