Partly allowed

Pradeep Gaurishankar v. Santosh Jain

Rajasthan HC20 Jan 2023CR/15/2023

Case brief

AI extract

What is this about?

Held that rejection of Order VII Rule 11 application is excessive; dismissal of revision petition. Dismissed first revision; disposed second by directing framing of preliminary limitation issue pending written statement; upheld other grounds.

What did the court decide?

Revision Petition 13/2023 dismissed; Revision Petition 15/2023 disposed of by directing framing of preliminary limitation issue; stay petition dismissed.

Pradeep Gaurishankar Vs Santosh Jain — Contract and Commercial Disputes | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Revision Petition No. 13/2023

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M/s Sai Polyplast, Road No. 10, M.G. Road, Khata No. 21/14, First And Second Floor, Fozi Udhyog, Udhyog Nagar, Udhna Surat (Gujrat)

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Pradeep Gaurishankar S/o Shri Gaurishankar, Aged About 52 Years, By Caste Brahman Trivedi, Resident of A-302, Silver Avenue Mapple County-1, Near Shalaj Railway Crossing, Thaltej, Ahmedabad (Gujrat)

¶6

Manoj Pandya S/o Shri Navneet Pandya, Aged About 43 Years, By Caste Brahman Pandya, Resident of 109-B, Vrandavan Park Second, Chala, Vapi.

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----Petitioners

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Versus

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Smt. Santosh Jain W/o Shri Mooolchand Jain, By Caste Oswal Jain, Through Her Power of Attorney Holder Moolchand Jain S/o Shri Bahadurmalji, Resident of 460, Subhash Nagar, Jodhpur.

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----Respondents

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Connected With

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S.B. Civil Revision Petition No. 15/2023

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Pradeep Gaurishankar S/o Shri Gaurishankar, Aged About 52 Years, By Caste Brahman Trivedi, Resident Of A-302, Silver Avenue Mapple County-1, Near Shalaj Railway Crossing, Thaltej, Ahmedabad (Gujrat)

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----Petitioner

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Versus

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Santosh Jain W/o Shri Moolchand Jain, By Caste Oswal Jain, Through Her Power Of Attorney Holder Moolchand Jain S/o Shri Bahadurmalji, Resident Of 460, Subhash Nagar, Jodhpur.

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----Respondent

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For Petitioner(s) : Mr. Kishan Lal Bansal For Respondent(s) : Mr. C.P. Soni

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HON'BLE MS. JUSTICE REKHA BORANA

Order

(2 of 5)

[CR-13/2023]

20/01/2023

S.B. Civil Revision Petition No. 13/2023

¶25

The present revision petition has been filed against the order dated 21.11.2022 passed by the Additional District Judge No.2, Jodhpur Metropolitan, Jodhpur whereby an application under Order VII Rule 11 of the Code of Civil Procedure as preferred by the defendants has been rejected.

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The case of the petitioners/defendants is that the respondent/plaintiff has not annexed the partnership deed along with the plaint and further did not implead one of the partners who was a necessary party to the suit, therefore, the suit, in absence of the impleadment of a necessary party, was not maintainable. He submitted that therefore, the suit was barred in terms of the provisions of Partnership Act. In support of his submission, learned counsel relied upon the Hon’ble Apex Court judgment in the case of Seth Loonkaran Sethiya and Ors. vs. Mr. Ivan E. John and Ors.; [1997 (1) SCC 379] . Counsel further submitted that the plaint did not disclose any cause of action and therefore also, the suit was liable to be dismissed.

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Heard learned counsel for the parties and perused the order dated 21.11.2022.

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The order specifically takes note of the pleadings as made by the plaintiff in her plaint. The suit is for recovery of certain amounts and it has been specifically pleaded in the plaint that the amount which was given as a loan to the defendants was not repaid to her and therefore, she was entitled for recovery of the said amount from the defendants. A specific pleading has been made that the defendants have closed down their business

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(3 of 5)

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[CR-13/2023]

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premise and have left from the said premise 18 months ago. Therefore, the cause of action arose to the plaintiff from that date. A bare perusal of the plaint makes it clear that the specific pleadings regarding the loan amount being given and the same having not been repaid have been made in the plaint. Further, the closure of the factory premises has been pleaded to be a cause of action for filing of the present suit. In the opinion of this Court, the findings as arrived by the court below cannot be faulted with as the same are totally reasoned and in terms of the provisions of Order VII Rule 11, CPC.

¶32

So far as the ground of non-impleadment/non-joinder of a necessary party is concerned, the same cannot be a ground for dismissal of a suit in terms of Order VII Rule 11, CPC. So far as the judgment relied upon by learned counsel for the petitioners is concerned, the same reiterates the proposition of law of a suit being barred against an unregistered firm in terms of Section 69 of the Partnership Act, 1932. There can at all be no dispute about the said legal proposition but evidently, the said proposition would not apply to the present matter as it is not the case of the defendants that the suit was filed against an unregistered firm.

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In view of the above observations, the present revision petition being devoid of merits is dismissed .

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The stay petition also stands dismissed accordingly.

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S.B. Civil Revision Petition No. 15/2023

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The present revision petition has been filed against the order dated 21.11.2022 passed by the Additional District Judge No.2, Jodhpur Metropolitan, Jodhpur whereby an application under

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(4 of 5)

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[CR-13/2023]

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Order VII Rule 11 of the Code of Civil Procedure as preferred by the defendant has been rejected.

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In the present revision petition besides the grounds as raised in the revision petition No.13/2023, the ground of limitation has also been raised.

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It has been argued that even if the version of the plaintiff is accepted as it is, the last repayment qua interest amount made by the defendants was on 31.03.2018 and the suit has been preferred on 26.05.2022 in which the Court fees has been deposited on 22.08.2022. Therefore, the suit was clearly barred by the law of limitation as the same had been filed after a period of three years from 31.03.2018.

¶42

A perusal of the order dated 21.11.2022 shows that the learned Court below has given a specific finding that the Hon’ble Apex Court had extended/excluded the limitation period because of the COVID-19 pandemic and therefore, the suit is not time barred. In the opinion of this Court, the said finding of the learned Court below cannot be disputed or faulted with as the period from 15.03.2020 to 28.02.2022 had been directed to be excluded from the period of limitation by the Hon’ble Apex Court and therefore, keeping into consideration the said period, the suit does not seem to be time barred. However, in the interest of justice, it would be equitable if a preliminary issue regarding the limitation be framed by the learned Court and the same be decided after affording opportunity of evidence on the said issue to both the parties.

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At this stage, learned counsel for the respondent plaintiff submitted that the petitioner defendant has not even filed the written statement till date and therefore, it would not be possible for the learned Court below to frame any preliminary issue.

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(5 of 5)

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[CR-13/2023]

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Learned counsel for the petitioner undertakes to file the written statement on the next date itself.

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If the written statement is filed by the petitioner defendant on the next date and the ground of limitation is pleaded in the same, let a preliminary issue regarding the limitation be framed and be decided in terms of the aforesaid directions.

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Regarding the other grounds, the order dated 21.11.2022 is upheld in terms of the order passed in Revision Petition No.13/2023.

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With the above directions, the present revision petition is disposed of .

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The stay petition also stands disposed of accordingly.

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(REKHA BORANA),J

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4 & 5-Sachin/-

Pradeep Gaurishankar v. Santosh Jain

Case brief

What is this about?

What did the court decide?

Pradeep Gaurishankar v. Santosh Jain

Case brief

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What did the court decide?

What the court decided

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