1 wp8166-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 8166 OF 2011 Jitendra rajaram Sawant .. Petitioner. Versus Dr Hari Tulshiram Gholap and others ... Respondents Mr Niranajan Mogre i/by S.M. Gorwadkar for the petitioner. Mr Ahijit P. Kulkarni for the Respondent Nos.1 and 2. CORAM : R. Y. GANOO, J. DATED : 10rd October, 2011 P.C. 1. Heard learned advocates on both the sides. 2. In a Special Summary Suit No. 207 of 2009, filed by the respondent Nos. 1 and 2 in the Court of Civil Judge, Senior Division, Pune, the petitioner had applied for leave to defend as per provisions of Order 37 Rule 3 (5) of the Code of Civil Procedure. On that application, the learned Civil Judge, Senior Division, Pune passed an order dated 2nd May 2011. The order reads as follows: “Granted on condition that the defendant be filed written statement prior to next date and solvent surety equal to claim amount". This order dated 2nd May, 2011 is challenged in this petition. 3. In para 11 of the plaint, one finds vague averment whereby, 2 wp8166-11 respondent nos. 1 and 2 have claimed that the present petitioner is shown to have retired from the partnership firm. This, according to the petitioner, is an admission. According to the petitioner, respondent nos. 1 and 2 have produced extract from the office of the Registrar of Firms wherein, the petitioner is shown to have retired in the year 2007. 4. The learned advocate for the petitioner contended that since the respondent nos. 1 and 2 have admitted that the petitioner has retired, there is no question of petitioner being liable to pay the amount claimed in the present suit. In order to show that the petitioner was retired, it was necessary for the petitioner to show that appropriate notice was given as per Section 32 (3) of the Partnership Act, 1932. The petitioner has not produced any such notice. If this is so, the formalities to get oneself out of the Firm is not completed and to that extent, prima facie, the petitioner is liable in the suit. 5. The learned advocate for the petitioner has relied on the decision in the case of Ashok Jaiswarup Jain v. Ms Annammma Verghese & others 1998 (3) Bom C.R. 663. The learned advocate for the petitioner contended that the question, whether the petitioner has retired or not is can be decided in the suit and, therefore, the petitioner is entitled to unconditional leave. In my view, the judgment relied upon by the petitioner would not assist him. The petitioner has not shown to the Court that he has formally retired from the Firm and that 3 wp8166-11 he has complied with the provisions of Section 32 (3) of the Partnership Act. If the petitioner has not complied with the requirement of section 32 (3) of the Partnership Act, he would not be able to excuse himself from the liabilities of the form. It is seen, as a part of condition to defend the suit, the petitioner was directed to furnish solvent sureties. In my view, the learned judge has taken the correct view of the matter. Hence no interference is required in the impugned order. 6. In my view, for the aforesaid reasons, no interference is required in the impugned order. The petition is dismissed at the stage of admission, with no order as to costs. However, time to furnish surety is extended up to 8th November, 2011. The petitioner has filed the written statements. If the surety is not furnished by 8th November, 2011, the Written Statement shall not be used by the Court while deciding the Suit. (R. Y. GANOO, J.)