1 cra-538-11.sxw
dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
CIVIL REVISION APPLICATION NO. 538 OF 2011
Mangilal Jagrupji Jain .... Petitioner
vs
Shri Bharat Shankarlal Dhakad (HUF) & ors. .... Respondents
Mr. P. S. Dani for the petitioner.
Mr. N.V. Walawalkar, Senior Advocate i/by Mr. Suresh M. Sabrad for
respondent no.2.
CORAM: ANOOP V. MOHTA, J.
DATE : September 15, 2011
ORAL JUDGMENT:
The Petitioner (Defendant No.3) is one of the purchaser, along
with the Plaintiffs (Respondents 1 to 4) of a property described in the
Agreement dated 29 December 2007 (the Agreement), executed with
Respondents 5 and 6 (Defendants 1 and 2). The Agreement reflects
that the Plaintiffs along with the Petitioner, as partners of M/s.
Mahavir Developers (the firm), entered into the agreement for
purchase of the property. As the Defendants failed to perform their
part, the present Suit is filed, in their individual capacity, for a
::: Downloaded on – 09/06/2013 17:44:14 :::
2 cra-538-11.sxw
specific performance based upon the agreement.
2 The Petitioner filed an application under Order VII, Rule 11 (d)
of the Code of Civil Procedure (CPC) for rejection of the plaint
basically on the ground that the Defendants executed the agreement
with the partnership firm namely, M/s.Mahavir Developers (the firm),
of which the Plaintiffs 1 to 4 are the partners. The firm is not
registered. Therefore considering Section 69(2) of the Indian
Partnership Act (Mah. Amendment), the suit as filed in the individual
capacity is not maintainable. The defence was that the Plaintiffs and
the Petitioner individually invested the amount and therefore in their
individual capacity entered into the transaction, though the document
reflects the name of the intended firm. It could not finalised and
registered till this date The learned Judge after hearing both the
parties, considering the averments made in the plaint and referring to
the provisions of law read with the judgments of the Supreme Court
rejected the said application. Therefore, the present Civil Revision
Application.
3 In view of this provision other party may apply for rejection of
the plaint if suit is barred by law based upon the basic averments in
::: Downloaded on – 09/06/2013 17:44:14 :::
3 cra-538-11.sxw
the plaint itself. The averments in the plaint also includes, as rightly
contended by the learned counsel appearing for the Petitioner, the
supporting and relevant documents filed with the same, at the
relevant time. There is no question of going to the defence/written
statement, filed or not. Even the reply stating the merits of the
matter filed to such application for rejection of the plaint may not be
necessary to consider merits of the matter in view of the object, nature
and scope and purpose of Order VII, Rule 11(d) of CPC.
4 The Apex Court in Vishnu Dutt Sharma vs. Daya Sapra (Smt)1
has elaborated the scope and purpose of the provision as follows:
“7 Order 7 Rule 11(d) of the Code of Civil
Procedure, 1908 (for short “the Code”) provides for
rejection of a plaint inter alia on the premise that the suit
was barred by any statute. Such an embargo in the
maintainability of the suit must be apparent from the
averments made in the plaint.
5 The Apex Court also in Popat and Kotecha Property vs. State
Bank of India Staff Association2 has elaborated the scope and
purpose of the provision as follows:
1 (2009) 13 SCC 729
2 (2005) 7 SCC 510
::: Downloaded on - 09/06/2013 17:44:14 :::
4 cra-538-11.sxw
"23 Rule 11 of Order 7 lays down an independent
remedy made available to the defendant to challenge the
maintainability of the suit itself, irrespective of his right to
contest the same on merits. The law ostensibly does not
contemplate at any stage when the objections can be
raised, and also does not say in express terms about the
filing of a written statement. Instead, the word “shall” is
used clearly implying thereby that it casts a duty on the
court to perform its obligations in rejecting the plaint
when the same is hit by any of the infirmities provided in
the four clauses of Rule 11, even without intervention of
the defendant. In any event, rejection of the plaint under
Rule 11 does not preclude the plaintiffs from presenting a
fresh plaint in terms of Rule 13.”
6 It is also necessary to consider at this stage the object and
purpose of Section 69(2) of the Indian Partnership Act, 1932 (Mah.
Amendment) and the effect of non-registration of firm and the
averments so raised along with the document filed on record, with a
view to see whether the impugned order is in accordance with law or
not. The consequence of such application is always goes to the root
of the Suit itself. If case is made out, the plaint needs to be rejected
at that stage itself.
7 In the present case, there is no serious dispute and basically in
view of the averments made in the plaint that the alleged partnership
firm was not registered on 29 December 2007 when the agreement in
::: Downloaded on – 09/06/2013 17:44:14 :::
5 cra-538-11.sxw
question was executed, though the parties have signed the
agreement/document as partners of the firm. The effect of non-
registration of such partnership firm just cannot be overlooked, but
subject to the averments made in the plaint only. It is very clear from
the averments read with the documents annexed to the plaint that the
Suit is filed for specific performance of the agreement in their
individual capacity, against the Respondents and the Petitioner.
Therefore, at this stage, from the averments it is clear that they have
not pleaded the specific performance of the agreement in the name of
the firm. The effect of such prayers and/or averments, the Court will
consider during the trial. But to say that such Suit is liable to be
dismissed, at this stage, based upon the principle of Order VII Rule
11(d) CPC as contended, in my view, is not correct. The submission
that the parties can have such oral partnership at any time and can be
registered at subsequent stage though cannot be disputed, yet in the
present facts and circumstances, that aspect just cannot be gone into
by overlooking the averments made in the plaint and the documents
on record, which nowhere deals with the aspect of the un-registered
firm. The intention and/or the object of reference of firm’s name
and what should be the consequence of filing of the suit in their
individual capacity also cannot be gone into at this stage merely on
::: Downloaded on – 09/06/2013 17:44:14 :::
6 cra-538-11.sxw
the basis of reply/submission so made by the learned counsel for the
Petitioner. All these facets need detail inquiry and evidence. It is
unregistered till this date in view of the disputes between the parties.
The submission revolving around Section 69(2) of the Indian
Partnership Act cannot be the foundation to reject the plaint, in the
present case.
8
The contention of the learned Senior Counsel appearing for the
Respondents, based upon the above judgments, therefore, supports
the impugned order on above facets. The reasoning given by the
learned trial Judge in this background cannot be stated to be bad in
law and/or contrary to the facts on record.
9 The judgment in Goverdhandoss Takersey vs. M. Abdul
Rahiman and anr.1 as cited by the learned senior counsel appearing
for the Respondent referring to Section 69(2) of the Indian
Partnership Act and the submission that in every matter, the plea of
non-registration of the firm that itself cannot be the foundation to
reject the plaint is also correct.There is also another facet that the Suit
filed by the alleged individual partners in their individual capacity
1 AIR (29) 1942 Madras 634
::: Downloaded on – 09/06/2013 17:44:14 :::
7 cra-538-11.sxw
cannot be dismissed under Order VII Rule 11(d) of CPC at this stage
of the proceedings at the instance of the Petitioner who was also one
of the signatories to the agreement and who has full knowledge that
the partnership was not registered or was not in existence at the
relevant time.
10 Resultantly, I see there is no reason to interfere with the
impugned order. The CRA is dismissed. There shall be no order as to
costs.
(ANOOP V. MOHTA, J.)
::: Downloaded on – 09/06/2013 17:44:14 :::
