J U D G M E N T

MANMEET PRITAM SINGH ARORA, J:

I.A. 31197/2024 (under Section 151 CPC seeking a direction to the Receiver to release Rs. 76 lakhs to defendant no. 2 from the bank account of the partnership firm)

1. The captioned application has been filed by the defendant no. 2, son of late Sh. Gopal Krishan Gupta, who was the erstwhile partner of the Signature Not Verified Signed By:RASHMI CS(COMM) 607/2023 Page 1 of 11 partnership firm namely M/s Capital Metal industries. defendant no. 2, seeking directions to the Court Receiver appointed vide Order date 21.12.2023 to repay the unsecured loan of Rs. 76 lakhs advanced by the applicant/defendant no. 2 to the partnership firm.

2. Dr. Amit George, the learned counsel for the applicant/defendant no. 2 submits that on account of death of late Sh. Gopal Krishan Gupta on 09.06.2022 the partnership firm stood dissolved, however, the plaintiff who is the surviving partner of the firm continued the operations of the firm on the pretext of winding up the partnership firm under Section 47 of the Indian Partnership Act 1932 (‘Act of 1932’) and during this period the plaintiff also cleared the debts of the partnership firm.

2.1 He stated that the unsecured loan advanced by the applicant/defendant no. 2 is undisputed and is duly reflected in the audited balance sheet of the partnership firm for the financial year (‘FY’) 2022-23 under the head of ‘Unsecured Loans’ of the firm. The said balance sheet has been filed by the plaintiff with the present suit and is thus, an undisputed document.

2.2 He stated that during the period of winding up of the firm i.e. from 09.06.2022 to 31.03.2023, plaintiff has cleared the debt of almost 90% creditors of the firm including his close relatives, however, despite the knowledge of the debt owed to the applicant/defendant no. 2, the plaintiff with a mala fide intent has elected not to repay the applicant/defendant no.

2’s debt of Rs. 76 lakhs.

3. Mr. Tanmay Mehta, the learned counsel for the plaintiff submits that the applicant/defendant no. 2 has been arrayed as a party in the present suit as one of the legal heirs of late Sh. Gopal Krishan Gupta; and not as a Signature Not Verified Signed By:RASHMI CS(COMM) 607/2023 Page 2 of 11 creditor of the dissolved firm. He stated that the application filed by applicant/defendant no. 2 in his capacity as a creditor is thus, not maintainable.

3.1 He stated that at the time when the partnership stood dissolved, the firm was a going concern having around 80-90 labourer/employees working for manufacturing and administration of the firm. There were pending orders from the clients of the firm and other obligations were pending to be complied with, like payment of Taxes, GST, Bank Loan, Unsecured Loans, Salaries, etc. Therefore, on legal advice and as per Section 47 of the Act of 1932, the plaintiff was constrained to continue the business activities of the firm as was permissible under law, which were necessary in the course of winding up and to complete transactions pending at the time of deemed dissolution of the firm.

3.2 He stated that as far as the settlement of debts of certain creditors other than applicant/defendant no. 2 is concerned, it has been done to protect the interest of the firm as all the debts settled by the plaintiffs during this period, were interest bearing debts.

3.3 He stated that at this stage when the applicant/defendant no. 2 has not filed any counter-claim with respect of his outstanding credit qua the partnership firm, the applicant cannot convert the present suit into a recovery suit without paying proper court fee and by filing the present application.

3.4 He stated that any application for interim relief can only be filed if the interim relief so sought is in the aid of final relief and in the present case where the applicant has not prayed for any final relief, the application of Signature Not Verified Signed By:RASHMI CS(COMM) 607/2023 Page 3 of 11 interim could not be allowed, he places reliance on t