SA/58/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 58 of 2008 WITH CIVIL APPLICATION NO. 2906 OF 2008 ========================================================= LIMGAVKAR SANDHYABEN SURESHCHANDRA THROUGH POA - Appellant(s) Versus HARI OM INDUSTRIES & 6 - Defendant(s) ========================================================= Appearance : MR HR PRAJAPATI for Appellant(s) : 1, None for Defendant(s) : 1 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 09/07/2008 ORAL ORDER
1. Heard
learned counsel for the appellant.
2. The
appellants, original plaintiffs in Special Summary Suit No. 10 of
2004 have approached this Court under section 100 of the Civil
Procedure Code by way of this second appeal assailing the judgement
and order passed by the appellate court in Regular Civil Appeal No.
61 of 2006 dated 30.07.2007 as well as the order and judgement dated
08.08.2006 passed by the trial court in Special Summary Suit No. 10
of 2004 dismissing the suit filed by the present appellant.
3. The
plaintiff had filed the Special Summary Suit No. 10 of 2004 before
the trial court for recovery of the due amount from the defendants
with 18% interest and notice charges totalling to Rs. 3,45,018.18 ps
from the defendants. It was the case of the plaintiff that the
plaintiff had deposited an amount of Rs. 1,50,000/- with the
partnership firm. The plaintiff held evidence before the trial court
and the trial court vide its decree dated 08.08.2006 dismissed the
suit. Being aggrieved by the decree passed by the trial court the
appellant filed appeal before the District Court and the same was
registered as Regular Civil Appeal No. 61/2006. The said appeal was
also dismissed by the appellate court and therefore the present
second appeal.
4. Mr.
H.R Prajapati, learned advocate appearing for the appellant has
submitted the substantial question of law that whether the defendants
have discharged their burden by leading evidence that the deposit
amount of appellant was paid to her and that whether the defendants
have discharged their burden by leading evidence that the deposit
amount was paid to her and also whether the liability and
responsibility of the partnership firm continues on account of the
reconstitution of the partnership firm.
4.1 He
has further submitted that both the courts below have failed to
appreciate that the suit was not for dissolution of the partnership
firm or demanding the amount from the firm on account of dissolution
but the suit was filed for recovery of the deposit amount from the
firm. He has submitted that both the courts below ought to have held
that the appellant was entitled to recover the deposit amount from
the partnership firm.
5. As
a result of hearing and perusal of records, it is quite evident that
the trial court has gone into the evidence in detail and more
particularly ex. 64 and 65 and has found sufficient reasons to
dismiss the suit. No concrete evidence is placed on record to show
that the appellant was entitled to recover the amount of deposit from
the partnership firm. The partnership firm was dissolved and the
accounts were settled between the partners. I am in complete
agreement with the concurrent findings of both the courts below. No
substantial question of law is raised in the present appeal for
consideration. In that view of the matter, this Court has no option
but to dismiss the appeal.
6. Accordingly,
this appeal is dismissed. No order as to costs.
7. In
view of the order passed in Second Appeal, this civil application
shall not survive and is therefore disposed of accordingly.
(K.S.
JHAVERI, J.)
Divya//