Madhukar s/o Wamanrao Jadhav & another vs Dayalbabu s/o Shyamlal Jaiswal & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 869

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
D.G. Deshpande, J.
Madhukar s/o Wamanrao Jadhav another.... Appellants.
Versus
Dayalbabu s/o Shyamlal Jaiswal another... Respondents.
Appeal Against Order No. 55 of 1999 with Civil Revision Application No. 514 of 1999, decided on 21-9-2001.
Advocates appeared :
P.N. Kothari, for the appellants.
S.G. Jagtap, for respondent No. 1.

Headnote:Civil Procedure Code, 1908 - Order XXIII, Rule 1; Order VII, Rule 11 - One partner of partnership firm applying for dissolution of firm and accounts - Subsequent withdrawal without permission of Court to file suit afresh - Subsequent suit filed by plaintiff is barred by Order XXIII, Rule 4, CPC. - Order VII Rule 11-D provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It is contended that when Order XXIII, Rule 4 prohibits institution of a fresh suit the last suit of September, 1996 was a barred suit and therefore plaint should have been rejected.
Law of Precedent - Article 5 - Partnership Act, 1932, Section 43 - Calculation of period of limitation - Notice for dissolution of partnership at will - Notice not received - Period of limitation as three years will begin from date of refusal - Suit filed after three years from date of refusal - Clearly barred by limitation - Not maintainable. - A refusal of notice once proved and accepted is sufficient service as accepted by provisions of law. Therefore, filing of a suit in September, 1996 after refusing to accept notice in March, 1996 is filing a suit beyond the period of three years, because the period begins to run from the date of dissolution. Admittedly, therefore the last suit of September, 1996 was barred by limitation.
Civil Procedure Code, 1908 - Order XXXVIII, Rule 1; Order XL, Rule 1 - Suit by one partner for dissolution of firm and accounts of a partnership firm - No prayer for attachment made prior to decision - Also not praying for calling other party for furnishing proper security - Finding of Court that plaintiff was not entitled for being appointed as receiver - Direction of Court to defendant to furnish security is not justified being illegal. - There was no prayer in the application that the original defendant be called upon to furnish security. It is only under Order XXXVIII of CPC that the Court can ask or call upon the defendant or a party to the suit to furnish security if at all the application for attachment before judgment is made. The criteria for attachment before judgment and criteria for appointment of Receiver are different.

JUDGMENT - D.G. DESHPANDE, J.:---The appeal from order as well as the civil revision application have been filed by the original defendants in Suit No. 1505/1996.

2.There is a long history giving rise to the appeal and the revision as under:

3.The parties hereinafter are referred to as original defendant in Suit No. 1505/1996 and the original plaintiff in the same suit.

4.There was a partnership between the original defendant in Suit No. 1505/1996 and original plaintiff for running a licensed liquor shop. This partnership came into existence in 1991 by a deed of partnership. So far as the duration of partnership is concerned, the deed of partnership is silent, but according to the Counsel for the original defendant, it is a partnership at Will by virtue of provisions of section 7 of the Partnerships Act. The original defendant gave a notice in 1993 i.e. notice dated 27-3-1993 for dissolution of the firm. Thereafter he filed a Suit No. 593/1993 for dissolution of the firm or for declaration. In that suit, the original plaintiff appeared, filed his written statement, but subsequently did not appear and a decree came to be passed. The notice dated 27-3-1993 of dissolution was sent to the original plaintiff. He refused to accept it. But since the original plaintiff remained absent in the same suit, decree came to be passed in favour of the original defendant meaning thereby that the trial Court accepted the case of the original defendant that the notice of dissolution was duly and properly served. This decree in Suit No. 593/1993 came to be passed on 29-10-1996. The original plaintiff filed appeal against the said judgment and decree and the same is pending with stay order in favour of the original plaintiff.

5.Thereafter, the original plaintiff filed Suit No. 400/93 for declaration and injunction in respect of the same partnership. But this suit was withdrawn by the original plaintiff (without seeking leave and liberty of the Court to institute the fresh suit). Thereafter, the original plaintiff filed another Suit No. 163/1993 and this suit was also withdrawn. According to the Counsel for the original defendant, this was withdrawn without obtaining leave of the Court, however, Counsel for the original plaintiff contends that leave and liberty of the Court to file fresh suit was obtained.

6.Thereafter, the original plaintiff again filed a fresh Suit No. 613/1994 for same reliefs and prayed for liberty to file fresh suit under Order II, Rule 2 of the Civil Procedure Code. The liberty was granted and again the suit was withdrawn. Thereafter, the original plaintiff filed Suit No. 1505/1996 for the same reliefs and in addition, the original plaintiff also claimed in the last suit a relief relating to the accounts of the firm and monetary claim valued at Rs. 33 lacs. It is this Suit No. 1505/1996 (hereinafter referred to as the last suit between the parties), that has given rise to both these appeal and revision.

7.In the last suit, the original plaintiff filed an application for appointment of Receiver. The prayer for Receiver was rejected by the Court, but the Court directed an order that the original defendant to furnish security of Rs. 33 lacs. In the last suit, the original defendant filed an application under Order VII, Rule 11(d) of the Civil Procedure Code for rejection of the plaint. That prayer was rejected. The appeal from order is preferred by the original defendant challenging the order for furnishing security by the original defendant to the extent of Rs. 33 lacs and the revision is filed against the order of the Court rejecting his objection under Order VII, Rule 11(d) of dismissal or rejection of the plaint.

8.Counsel for the original defendant (who has filed revision as well as appeal), contended that two points support his contention under the specific order of refusal to reject the plaint or dismiss the suit under his objection. According to him, the plaintiff had filed first Suit No. 400/93 for declaration and injunction.

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