Allowed

Narendra Ramesh Sharma v. Ruksana Sulaiman Chamadia

Bombay HC17 Feb 2009NMS/1541/2007

Case brief

AI extract

What is this about?

The Court dismissed the defendant's objections regarding non-service of summons and lack of preliminary decree. It held the existing order was a preliminary decree, ordered sale of assets, dissolved the partnership from the suit filing date, and refused a stay.

What did the court decide?

Dissolved suit firm from 15th April 1997; directed sale of assets within 12 weeks; refused stay.

Narendra Ramesh Sharma Vs Ruksana Sulaiman Chamadia — Partition | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1541 OF 2007

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IN

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SUIT NO.1327 OF 1997

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Narendra Ramesh Sharma.. Plaintiff

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Versus

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Mrs.Ruksana Sulaiman Chamadia .. Defendant

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Mr.Sanjay Jain with T.N.Tripathi for plaintiff
Mr.M.P.Vashi for defendant

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CORAM :S.C.DHARMADHIKARI, J.
DATE:17th February 2009

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P.C.

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.By this Notice of Motion, the plaintiff
applies for passing a final decree, dissolving

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the partnership firm M/s.Shubh which has been
constituted under the Deed of Partnership dated
29th April 1989. The request is that this firm
be dissolved from the date of filing of the suit
and, thereafter, the Court may direct sale of the
assets and properties of the firm, including
those described in Exh.C to the plaint.

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2.It is not disputed before me that earlier
a Notice of Motion was moved seeking identical
relief but that was withdrawn with liberty to
file a fresh motion. This order was passed on
Notice of Motion No.28 of 2005 on 27th January
2006.

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3.It is stated that the suit is filed for
Dissolution of the partnership firm and for
taking Accounts and other consequential reliefs.
A notice of motion being Notice of Motion No.2823
of 1997 was moved by the plaintiffs and by an
order dated 8th January 2001, the Court Receiver,

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High Court, Bombay was appointed as Receiver of
the assets of the suit partnership firm.

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4.Thereafter, the plaintiff applied for a
preliminary decree by moving Notice of Motion
No.2221 of 1999. That notice of motion was
placed before a learned Single Judge of this
Court on 28th March 2001 and after hearing both
sides, this Court passed the following order:-

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"....In these circumstances,
therefore, in my opinion, it would be
appropriate as also it would be in the
interest of justice to grant this Notice
of motion in terms of prayer clause (b)
as also prayer clause (c) excluding the
bracketed portion. It is directed that
after the Commissioner’s report is
submitted, the proceedings for final
decree shall be taken up."

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5.It is stated that this order has become
final, inasmuch as it has not been set aside till
date. Pursuant to the orders and directions of
this Court, the Commissioner for taking accounts
submitted his report dated 6th May 2004.
Pursuant to this report, now all that remains is
passing of final decree.

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6.Mr.Jain appearing for plaintiff in
support of this motion contended that the order
dated 28th March 2001, declares the shares of
parties in the suit partnership. Further, it
issues directions as are necessary soas to
constitute a Preliminary Decree in the suit. In
these circumstances, the Court must proceed to
pass a Final Decree and direct that the
properties and assets of the suit partnership be
sold. He contended that requirements stipulated
by Order XX Rule 15 of C.P.C. are complied with
and, therefore, the necessary reliefs be granted.

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7.It needs to be mentioned that this notice
of motion appeared before me on 23rd October 2008
and proceeding on the basis that the shares of
the parties in the assets have been determined
under the above order, by consent of parties, I
directed that steps be taken to sell the
property. This immovable property could have
been sold after the valuation was obtained and,
therefore, the Court Receiver was directed to
appoint a Valuer from his panel. Further
directions were issued to have the report of the
valuer placed on record.

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8.The matter appeared before me on 25th
November 2008 and not being satisfied with the
valuation and recording that the property must be
sold by public auction, I determined the Reserve
Price thereof. All this was done in the presence
of both plaintiff and defendants. At the request
of defendant’s Advocate, the matter was adjourned
for one week.

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9.Thereafter, I was informed that the
Defendant desires a change of Advocate. The new
Advocate appeared on record and the matter was
placed, at his request, on 15th December 2008.
On 15th December 2008, Mr.Pradeep Thorat who was
engaged as Advocate by the defendant sought
discharge from the proceedings. The defendant
appeared through another Advocate and stated that
she has now consented to an order being passed
for sale of the assets and properties. She
stated that firstly the order passed by this
Court on 28th March 2001 does not amount to a
preliminary deecree and in any event, she desires
to challenge the said order by way of an Appeal
and she has instructed her newly engaged Advocate
to take appropriate steps. It is pertinent to
note that all these statements were made by the
Defendant appearing in person before me on 15th
December 2008, considering the fact that the
defendant is a lady and that she was appearing in

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person, I acceded to her request and the matter
was stood over to 12th January 2009.

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10.On 12th January 2009, Mr.M.P.Vashi,
Advocate appeared and stated that he has
instructions to represent them. He filed his
vakalatnama and, thereafter, also filed an
affidavit in reply.

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11.Mr.Vashi contended before me that the
order dated 28th March 2001 grants prayer clauses
(b) and (c) of the motion being Notice of Motion
No.2221 of 1999, excluding the bracketed portion.
The learned Single Judge has not granted prayer
clause (a) of the notice of motion which was
specifically praying for passing of a preliminary
decree. In these circumstances, it cannot be
said that a preliminary decree has been passed by
the learned Single Judge.

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12.In any event and without prejudice, it is

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contended that no preliminary decree can be
passed unless and until the defendant is served
with the writ of summons. In this case, the
defendant is not served with the writ of summons
in a suit, which has been instituted on 15th
April 1997. The writ of summons has not been
served as has been set out in the affidavit dated
20th October 2008. The said affidavit was duly
served on the plaintiff. There is no question of
waiver of the requirement of serving the writ of
summons and in any event, the service of the same
is not waived. In all these years, although,
interlocutory proceedings have been moved, the
writ of summons was never served. In such
circumstances, the defendant could not file a
written statement and, therefore, this Court
cannot proceed with the present notice of motion.
More so, in the light of Rule 87 of the Bombay
High Court (OS) Rules, which provide that if the
writ of summons is not served within six months
from the date of filing of the plaint/ suit, the

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Prothonotary & Senior Master shall unless good
cause is shown, place the suit on board for
dismissal. In the present case, more than 10
years have lapsed and the suit summons has not
been served. Therefore, no relief can be granted
in favour of the plaintiff.

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13.Lastly, it is contended that this Court
(D.K.Deshmukh, J) while passing an order on the
Notice of Motion No.2221 of 1999 relied upon an
affidavit of husband of defendant dated 21st June
1999. However, the learned Single Judge has
omitted to make any reference to the affidavit
dated 22nd March 2001. In these circumstances,
the decree on admission could not have been
passed, without taking into account the pleas
raised by the defendant. Affidavits must be read
as a whole and if so read, there are no
admissions contained therein. For these reasons
and in any event, an appeal having been lodged
against the order of the learned Single Judge

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dated 28th March 2001, that this Court should not
proceed to pass any further orders.

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14.In support of his submissions, Mr.Vashi
has relied upon a decision of the Supreme Court
reported in A.I.R. 1963 S.C. 1165 (Banarasi Das
and Ors. Vs. Kanshi Ram Kundanlal Munnalal and
Ors). He has also relied upon a judgement of a
learned Single Judge of the Patna High Court
reported in A.I.R. 1940 Patna 204.

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15.I am unable to accept any of these
submissions for more than one reason. Firstly,
even if the pleas as raised above have been so
raised in the affidavit filed on 20th October
2008 in the present notice of motion, all further
actions of the defendant as reflected in my
orders of 23rd October 2008 and 25th November
2008 would show that she has consented to the
passing of the orders and granting relief in the
present motion. At no stage, has she ever

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contended that the order dated 28th March 2001
cannot be said to be a preliminary decree. She
had several opportunities to do so and having
engaged two Advocates earlier, it was open for
her to object to the present notice of motion.
Parties cannot at their convenience wriggle out
of admissions before a Court which have been made
in their presence and by lawyers and Advocates
duly engaged by them. If such practice is
encouraged by a Court of law, then, there would
be no sanctity to the statements recorded
pursuant to instructions. The very foundation of
Court proceedings would be shaken if parties
shift their stand mid-way and merely because they
find that on the basis of their statements and
admissions, some adverse orders and directions
are likely to be passed and issued.

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16.However, I am not inclined to reject the
submissions only of this ground. There is no
substance in the argument of Mr.Vashi that the

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suit summons having not been served, no
preliminary decree could have been passed. In
the instant case, the defendant has appeared,
after she was duly served with the first notice
of motion in the suit. She appeared at the stage
of ad-interim relief in that motion way back in
1997. She appeared at the final hearing of the
said notice of motion. Not only this, she
engaged an Addvocate who duly filed his
vakalatnama on her behalf to contest the
proceedings. Further, she contested the Notice
of Motion No.2221 of 1999 and Notice of Motion
No.28 of 2005 in this very suit. At no stage,
she has raised an objection that the suit summons
has not been served. In any event, all
procedural rules are hand-maids of Justice. The
Court does not loose its power and authority to
render Justice and all procedural rules cannot be
elevated to such a status so as to make it
impossible for a court to grant relief.
Ultimately, they facilitate in rendering justice

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to parties. They do not confer any rights on
parties so as to nullify the very basis of Court
proceedings. All these rules contemplate that an
opportunity must be given to the Adversary to
defend the suit claim. That opportunity has been
duly given. It inconceivable that for (11)
Eleven years, the defendant went on appearing in
the matter through duly authorised pleaders and
Advocates who had been instructed to prepare her
points of Defence on merits and argue them but
none of them thought that service of summons is
vital. She placed her version on merits on
record and it is too late in the day to urge that
the suit summons having not been served, no
preliminary decree could have been passed.

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17.The decisions relied upon by Mr.Vashi do
not in any manner suggest that if suit summons is
not served, the matter cannot proceed. What fell
for consideration of the Hon’ble Supreme Court
was whether a partnership firm stands dissolved

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by due communication of a notice, in case of
partnership at will. The further issue was
whether filing of a suit constitutes such a
notice. It is in this context and observing that
mere issuance is not enough but communication is
necessary, that the Supreme Court observes that
if the suit summons is not seerved the date of
institution of the suit cannot be reckoned as a
date of dissolution of the firm. These
observations can by no stretch of imagination be
considered as prohibiting a Court of law to
proceed with a Dissolution action, even if it is
urged that a partnership at will be dissolved
from the date of institution of the suit, as both
sides have due notice of the said date and were
aware of the same. There is due communication
and compliance is thus made with the provisions
of law. It is in these circumstances, that I am
proceeding to pass the orders as prayed in the
notice of motion and, therefore, the Supreme
Court decision cannot be of any assistance to

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Mr.Vashi.

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18.The next decision of the learned Single
Judge of Patna High Court was rendered while
resolving the controversy as to what constitutes
a preliminary decree. The controversy was that
differences arose between parties about working
of a firm busines and on 6th October 1928 the
plaintiff before the Patna High Court instituted
the suit before the subordinate Judge, alleging
acts of misconduct and contending that the
partnership has come to an end, they sought the
declaration. The subordinate Judge passed a
decree on 30th June 1930 which was partly
preliminary in the opinion of the Patna High
Court and partly final, dissolving the
partnership on that date and awarding the
plaintiff damages and ordering accounts to be
taken.

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19.The controvesy was whether such an order

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could be said to be a Interlocutory order or a
preliminary decree.

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20.Noticing the provisions in the old Civil
Procedure Code, the controversy was resolved and
tests to consider whether a particular order is
or is not a decree have been referred to.
Noticing the facts peculiar in that case, the
Patna High Court observed that the order of the
subordinate Judge was neither a preliminary nor a
final decree. Once again, this decision is
distinguishable on faccts and can have no
application.

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21.In this context what needs to be referred
is the order dated 28th March 2001. That order
was passed on the Notice of Motion of the
plaintiff. Noticing the principal relief in the
suit, the learned Single Judge proceeded to
peruse the affidavits which have been filed in
reply to earlier Notice of Motion No.2823 of

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1997. That affidavit dated 1st June 1999 was
read with the assistance of both sides and
firstly the learned Judge over ruled the
objection of the defendant that no relief is
claimed on the basis of Order XII Rule 6 of
C.P.C. nor is a decree on admission being sought
and in such circumstances, the Court is not
empowered to pass any orders. Para 5 of the
learned Single Judge’s order refers to Order XII
Rule 6 C.P.C. Thereafter, the learned Judge
observed thus:-

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"18.Insofar as present case is
concerned, the plaintiff has come to the
court seeking a decree of dissolution of
the firm and for accounts and for
division of the assets alleging that
there is a registered partnership between
the plaintiff and the defendant pursuant
to the partnership deed dated 29th April
1989 which shows that both the partners

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had 50% shares in the business and assets
of the firm. According to the plaintiff,
according to the partnership deed, the
partnership was at will, therefore,
filing of the suit amounts to dissolution
of the firm. It is clear from the
affidavit of the defendant filed in
Notice of Motion No.2823 of 1987
dt.21/6/1999 that not only the defendant
did not dispute the statement made in the
plaint and in the affidavit filed in
support of the Notice of Motion by the
plaintiff, but the defendant made a
positive statement that he is carrying on
business in partnership with the
plaintiff and that the suit property
belongs to the partnership firm. The
statement made by the defendant in para
5(a) of his affidavit dated 21/6/1999
leave one in no manner of doubt that
according to the defendant he was

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carrying on business in partnership with
the plaintiff. These clear statements
have been made by the defendant in his
affidavit dated 21/6/1999 which clearly
establish that the plaintiff and the
defendant were carrying on business in
partnership and each had 50% share. It
is also clear from the statements of the
defendants that there is only one asset
of the firm. Insofar as the case put up
by the defendant in his affidavit filed
in support of this notice of motion is
concerned, it is clearly an after
thought. If according to the defendant,
a transaction between the plaintiff and
the defendant was not a partnership
transaction but a loan transaction, then
no explanation is to be found in the
affidavit of the defendant as to why he
makes a grievance that the plaintiff did
not make efforts and extend his

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cooperation to the defendant for
developing the property of the firm.
There is no explanation to be found in
the affidavit filed in the reply to the
present notice of motion by the defendant
as to why and under what circumstances
admissions were given in the affidavit
dated 21/6/1989. Merely relying on wrong
provisions of law, in my opinion, would
not be fatal. It is from the provisions
of Order 12 Rule 6 that if the defendant
has given clear admission, which entitles
the plaintiff to certain relief from the
Court, then the Court is entitled to make
appropriate orders on the basis of such
admission. The Court need not wait for
the defendant to file his written
statement for evidence to be laid etc."

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22.From a perusal of these observations and
findings, it is clear that the learned Judge has

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held that the defendant admits that there is a
business in partnership with the plaintiff.
Further, there is an admission that the suit
property belongs to partnership firm. Thirdly,
the shares of parties were 50% each. The learned
Judge has noted the contentions of the defendant
that the transaction was a loan transaction and
not a partnership. However, relying upon the
statements in the affidavit in reply, the learned
Judge has held that there is no substance in
them.

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23.It is undisputed before me that this
order is not set aside. Merely because prayer
(a) of the notice of motion has not been granted,
does not mean that the learned Judge has not
passed a preliminary decree. My holding so,
would be going behind this order, which is
impermissible at this stage. This order binds me
and Judicial discipline requires that I follow
and apply the same. Apart from Judicial

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discipline, when I am satisfied that the order
determines shares of the parties and that it
directs the Commissioner for taking accounts to
proceed and make a report after giving
opportunity to both sides, then, I am left with
no option but to hold that the order passed is
nothing but a prelimianry decree. Too technical
a construction and interpretation of Order XX
Rule 15 would mean that all concluded matters can
be reopened in such cases. In the peculiar facts
of this case, there is no substane in the
contention that the order is not a preliminary
decree.

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24.Apart from what is observed above, in my
view, when the matter was referred to the
Commissioner for Taking Accounts, both sides have
proceeded on the basis that the order of Single
Judge dated 28th March 2001 is a preliminary
decree. They placed before the Commissioner,
their versions, insofar as transactions and

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accounts of the firm. After a detailed exercise
and granting opportunity to both sides, the
Commissioner for taking accounts has forwarded
his report dated 6th May 2004. At no stage,
during the proceedings before the Commissioner
and for the past nearly seven years, has the
defendant complained that the order passed by
this Court was not a preliminary decree and,
therefore, the Commissioner has no jurisdiction
to prepare and forward such a report. Such being
the case, allowing the defendant to now raise a
plea that the order does not amount to a
preliminary decree, would defeat the ends of
justice.

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25.Having satisfied myself that the order
dated 28th March 2001 is a preliminary decree and
that the suit property consisting of a building,
which is dilapidated and if not sold and disposed
of urgently, would result in further injustice to
parties, it is directed that the Court Receiver,

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High Court Bombay should take steps to disposee
of the properties and assets of the firm,
including those described in Exh.C to the plaint
by taking necessary steps in accordance with the
rules laid down in that behalf. The Court
Receiver is directed to conclude the sale within
a period of twelve weeks from today. Needless to
state that the Court Receiver to retain the sale
proceeds until further orders and directions of
the Court.

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26.In the light of the fact that the suit
has been instituted on 15th April 1997 and
parties are having due notice of its institution
and have proceeded on the basis that the suit
firm stands dissolved with effect from this date,
it is directed that the suit firm shall stand
dissolved with effect from 15th April 1997.

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27.Registry to draw up final decree
determining and reckoning the above date and with

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directions as aforesaid to the Court Receiver.
All concerned to act on an authenticated copy of
this order.

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28.At this stage, Mr.Vashi requests for stay
of this order. This request is opposed by
Mr.Tripathi. Considering that I have given
twelve weeks time to conclude the sale, there is
enough time available to the defendant to
challenge this order in a Higher Court. There
is, therefore, no reason to grant any stay of
this order. Needless to state that whatever
steps that the Court Receiver will take will
always be subject to the orders of the Higher
Court. Finding that no prejudice will be caused,
request for stay is refused.

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(S.C.Dharmadhikari, J)

Narendra Ramesh Sharma v. Ruksana Sulaiman Chamadia

Case brief

What is this about?

What did the court decide?

Narendra Ramesh Sharma v. Ruksana Sulaiman Chamadia

Case brief

What is this about?

What did the court decide?

What the court decided

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