Partly allowed

Rashid Abdul Sattar Oomerbhoy v. Majid Ahmedbhai Oomaerbhoy and Ors.

Bombay HC9 Sept 2008NMS/610/2008

Case brief

AI extract

What is this about?

Defendant No.1 sought dissolution of four partnership firms. The court held that consent dissolving one firm did not waive the plaintiff’s main prayer for enforcing a family arrangement covering all firms. The prayer to dissolve all firms was refused as an alternative prayer remains pending. Other procedural prayers were allowed.

What did the court decide?

Prayer to dissolve all firms dismissed; prayer for expeditious hearing allowed; other prayer clauses allowed subject to final hearing.

Rashid Abdul Sattar Oomerbhoy Vs Majid Ahmedbhai… — Property and Title | Bombay HC (2008)

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 -: 1 :-

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 NOTICE OF MOTION NO.610 OF 2008

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In

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 SUIT NO.722 OF 1992

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 Rashid Abdul Sattar Oomerbhoy : Plaintiff

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 V/s.

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 Majid Ahmedbhai Oomerbhoy & Ors. : Defendants

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 Mr.Gaurav Joshi with Mr.Jariwala and Ms Jyoti Ghag i/b.

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 Thakore Jariwala & Associates for defendant no.1.

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 Mr.R.Narichania with Ms Shoma Mitra i/b. Desai Desai &

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 Carrimjee for the plaintiff.

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 Ms Archana Patil i/b. Jurists Uno for defendant nos.4, 5 &

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6.

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 Mr.D.V.Deokar with Ms U. Srivastav, 1st Assistant & 2nd

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 Assistant, respectively, to Court Receiver.

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 CORAM : S.A. BOBDE, J.

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 DATE : SEPTEMBER 09, 2008.

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 P.C.

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 1. This Notice of Motion taken out by the defendant no.1
 is mainly for a direction that the partnership firms owned
 by the parties to the suit stand dissolved with effect

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 from the date of filing of the present suit. The
 partnership firms are:-

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 -: 2 :-

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 (i) M/s.Ahmed Oomerbhoy;

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 (ii) M/s.Bombay Soap Factory;

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 (iii) M/s.Hindustan Cold Storage; and

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 (iv) M/s.Bharat Cold Storage.

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 These firms are the subject-matter of suits between the
 parties.

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 2. Present Suit No.722 of 1992 is filed by the
 plaintiff, who may be described as "Rashid group"
 contains prayers broadly in respect of two things; (i)
 that the family arrangement dated 7.4.1989 read with
 allotment dated 5.1.1990 are valid and binding on the
 parties; and (ii) four partnerships firms referred to
 above be dissolved with effect from the date of filing of
 the suit.

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 3. The main contention on behalf of the learned counsel
 for the defendant no.1 is that this Court, per Deshmukh,
 J., has already recorded the consent of the parties which
 includes the present plaintiff that the firm M/s.Ahmed
 Oomerbhoy, which was to go to the plaintiff under the
 family arrangement, shall stand dissolved. That order

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 has attained finality and, therefore, there is no reason

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 why the present prayer made by the defendant no.1 which
 is to the same effect should not be granted. According

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 -: 3 :-

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 to the learned counsel, the consent given by the
 plaintiff for dissolution of the firm M/s.Ahmed Oomerbhoy
 which was to go to them under the family arrangement
 itself shows that the plaintiff has deviated from and
 subverted the family arrangement and there is, therefore,
 no family arrangement left to be adjudicated upon in this
 suit.

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 4. Mr.Narichania, the learned counsel for the plaintiff,
 submits that firstly, the consent recorded by this Court,
 per Deshmukh, J., is only in respect of one firm i.e.
 M/s.Ahmed Oomerbhoy whereas the present suit is in
 respect of the family arrangement which covers ownership
 of all the firms. Mr.Narichania submits that the
 plaintiff intends to give up the prayer for dissolution
 of the firm which is made in the alternative and intends
 to press the prayer only in respect of enforcement of the
 family arrangement.

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 5. Having heard the parties at length, one thing is
 clear, viz., that the suit is in respect of the family
 arrangement which affects the distribution of all the
 firms owned by the family in various names to the
 respective parties. The family arrangement obviously
 contemplates the existence of the firms i.e. functioning
 firms and not dissolved ones. It is true that there is
 an alternative prayer for the dissolution of the family

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 -: 4 :-

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 firms. Whether the alternative prayer should be granted
 is a matter which will be decided by the Court while
 hearing the suit. The Court will decide whether the
 family arrangement should be enforced, if not, whether
 the firms are liable to be dissolved. In these
 circumstances, though the plaintiff has agreed to the
 dissolution of one of the firms M/s.Ahmed Oomerbhoy and
 that agreement and consent has been recorded by this
 Court, it can’t be said that the present suit has worked
 itself out, nor can it be inferred from the consent given
 by the plaintiff to the dissolution that he has given up
 his prayers in respect of the family arrangement and has
 ip so facto agreed that all other firms also stand
 dissolved.

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 6. Mr.Joshi, the learned counsel for the defendant no.1,
 submitted that there is correspondence on record to show
 that the plaintiff has been demanding the distribution of
 profits on the basis that the firm is dissolved. He
 referred to certain correspondence on record such as
 letters dated 1.2.2006 and 3.10.2006 written by the
 plaintiff demanding that steps be taken to dispose of by
 partition of the remaining properties belonging to the
 firm. The reading of one of these letters is opposed by
 Mr.Narichania on the ground that it has been written
 without prejudice. However, there is still anther letter
 which can be read without objection. Assuming that the

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 -: 5 :-

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 letters be correct, it cannot be said that merely writing
 the letters, the parties have waived their rights to
 press their prayer in the suit. In any case, the effect
 of such letters can appropriately be examined in a suit.

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 7. Having regard to the aforesaid circumstances and
 particularly in view of the fact that the prayers in the
 suit are ranging from enforcement of the family
 arrangement as well as prayer for alternative dissolution
 of the firm, I am of view that one of the prayers made in
 the present Notice of Motion that the suit be decreed by
 dissolving all the partnership firms belonging to the
 family shall stand dissolved cannot be granted.

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 8. As regards prayer clauses (e) to (i), Mr.Narichania,
 the learned counsel for the defendant no.1, has no
 objection. Hence, prayer clause (e) is allowed, except
 in relation to Suit No.547 of 2003 which pertains to
 ownership of a trade mark. Further prayer clauses (f) &
 (g) for expeditious hearing of the suit and recording of
 evidence are allowed. Prayer clauses (h) & (i) may be
 decided at the final hearing of the suit.

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 9. Notice of Motion is disposed of in the above terms.
 There shall be no order as to costs.

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 10. The above suit to come up on 25.9.2008 for framing

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 of issues.

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 -: 6 :-

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 S.A. BOBDE, J.

Rashid Abdul Sattar Oomerbhoy v. Majid Ahmedbhai Oomaerbhoy and Ors.

Case brief

What is this about?

What did the court decide?

Rashid Abdul Sattar Oomerbhoy v. Majid Ahmedbhai Oomaerbhoy and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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