Allowed

Rasheed.v.P v. Surabhi Woods

Kerala HC15 Oct 2019OP(C)/932/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the applicant's petition. It set aside the lower court's order dismissing the maintainability challenge due to a factual error regarding the Partnership Act bar, remitting the matter for fresh consideration within 45 days without expressing an opinion on merits.

What did the court decide?

Ext.P5 order set aside; matter remanded to court below to reconsider the issue of bar under Section 69(2) of the Partnership Act and pass order afresh within 45 days.

Rasheed.v.P Vs Surabhi Woods — Contract and Commercial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

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TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941

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OP(C).No.932 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OS 98/2017 DATED 22-02-2019 OF PRINCIPAL SUB COURT,ERNAKULAM

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PETITIONER/S/1st DEFENDANT:

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RASHEED.V.P AGED 63 YEARS, S/O PAREED KHAN, PROPRIETOR, E-ORIENTAL TIMBERS, N.H.BYE PASS, OPP CHAITHANAYA MARBLES, EDAPPALLY. KOCHI-24, EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT

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BY ADVS. SRI.M.S.UNNIKRISHNAN SRI.V.S.SREEJITH SRI.K.SUNIL SMT.A.G.NISHA SMT.M.ARDRA KRISHNAN SRI.CHRISTINE MATHEW SMT.SUSAN JACOB (S-3481)

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RESPONDENT/S/PLAINTIFFS AND DEFENDANTS 2 AND 3:

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1 SURABHI WOODS A PARTNERSHIP FIRM, DOOR NO 19/557, NEAR RAILWAY STATION, ANGAMALY- 680 308

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2 SHIBU AUGUSTINE, AGED 40 YEARS, S/O P.C.AUGUSITINE , MANAGING POARTNER, SURABHI WOODS, DOOR NO 19/557/19/558 AND 19/559, NEAR RAILWAY STATION, ANGAMALY, RESIDING AT PADAYATTIL HOUSE, KALLUPALAM ROAD, ANGAMALAY, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT 680 308

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3 P.C.AUGUSTINE, AGED 76 YEARS, S/O CHERIYA, PARTNER, SURABHI WOODS, DOOR NO 19/557/19/558 AND 19/559, NEAR RAILWAY STATION, ANGAMALY, RESIDING AT PADAYATTIL HOUSE, KALLUPALAM ROAD, ANGAMALAY, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT 680 308

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OP(C).No.932 OF 2019

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4 K.T.ANNIE, AGED 67 YEARS W/O P.C.AUGUSTINE, PARTNER, SURABHI WOODS, DOOR NO 19/557/19/558 AND 19/559, NEAR RAILWAY STATION, ANGAMALY, RESIDING AT PADAYATTIL HOUSE, KALLUPALAM ROAD, ANGAMALAY, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT 680 308

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5 REKHA SHIBU, AGED 33 YEARS, W/O SHIBU AUGUSTINE, PARTNER, SURABHI WOODS, DOOR NO 19/557/19/558 AND 19/559, NEAR RAILWAY STATION, ANGAMALY, RESIDING AT PADAYATTIL HOUSE, KALLUPALAM ROAD, ANGAMALAY, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT 680 308

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6 M/S TAMIL NADU MERCANTILE BANK, NEAR SUCHINDRA HOSPITAL KACHERIPADY, CHITTOOR ROAD, KOCHI-18 ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT

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7 M/S SOUTH INDIAN BANK LTD, ANGAMALY BRANCH, BANK JUNCTION ALUVA ROAD, ANGAMALY VILLAGE, PIN 683 572, ALUVA TALUK, ERNAKULAM DISTRICT

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R1-5 BY ADV. SRI.S.SREEKUMAR (SR.) R1-5 BY ADV. SRI.P.MARTIN JOSE R1-5 BY ADV. SRI.P.PRIJITH R1-5 BY ADV. SRI.THOMAS P.KURUVILLA R6 BY ADV. SRI.GIGIMON ISSAC R7 BY ADV. SRI.SUNIL SHANKER

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.932 OF 2019

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JUDGMENT

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The prayer in this original petition is to set aside

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Ext.P5 order.

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The petitioner is the first defendant in O.S.No.98/2017 on the files of the court below. The petitioner had taken a contention that the suit was not maintainable, in view of the bar under Section 69(2) of the Partnership Act. The court below observed in Ext.P5 order that there was no contention in the written statement to the effect that there was bar under Section 69(2) of the Partnership Act. It appears from the written statement that the first defendant had taken a contention that the suit was barred under Section 69(2) of the Partnership Act, in view of the

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OP(C).No.932 OF 2019

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non-registration of the partnership. However, the court below was factually wrong in holding that the petitioner did not take a plea that the suit was barred under Section 69(2) of the Partnership Act. In the said circumstances, the court below is directed to reconsider the said issue and pass order afresh. I make it clear that I have not expressed any opinion with regard to the merits of the case. I have only found that the court below was factually wrong in passing Ext.P5 order. It is only because of that reason, I am inclined to set aside Ext.P5 order. Accordingly, Ext.P5 order stands set aside and the matter is remitted to the court below with a direction to pass order afresh, in accordance with law, as expeditiously as possible and at any rate within 45 days from the date of

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OP(C).No.932 OF 2019

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production/receipt of a copy of this judgment.

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In the result, this Original Petition stands disposed

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of as above.

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SD/-

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B.SUDHEENDRA KUMAR

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JUDGE

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RK/15.10.2019

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OP(C).No.932 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PALINT OS NO 98 OF 2017 ON THE FILES OF PRINCIPAL SUB OCURT, ERNAKULAM

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OS NO 98 OF 2017 ON THE FILES OF PRINCIPAL SUB COURT, ERNAKULAM

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 10.4.2017 IN OS NO 173 OF 2015 ON THE FILES OF PRINCIPAL SUB COURT, ERNAKULAM

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EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED UNDER FORM A OF SECTION 59 OF INDIAN PARTNERSHIP ACT TO THE 1ST RESPONDENT

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 22.2.2019 IN OS NO 98 OF 2017 ON THE FILES OF PRINCIPAL SUB COURT ERNAKULAM

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RESPONDENT'S/S EXHIBITS:NIL

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//TRUE COPY//

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PA TO JUDGE

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Rasheed.v.P v. Surabhi Woods

Case brief

What is this about?

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Rasheed.v.P v. Surabhi Woods

Case brief

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