1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.943 OF 1998 IN NOTICE OF MOTION NO.2189 OF 1994 IN SUIT NO.1411 OF 1976 ... Mahendra C. Shah ...Appellant v/s. Shrimati Panalal Shah and ors. ...Respondents ... Mr.V.A.Gangal with Mr.Ashok Gade i/b V.M.Parkar for the Appellant. Mr.Kapil Moye with Mr.G.Misquitta for Respondents Nos. 2 to 8. ... CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ DATED: 1st April, 2010 P.C.: 1. By this Appeal, the Appellant challenges the order dated 6-8-1998 passed by the learned single Judge of this Court in 2 Notice of Motion No.2189 of 1994. 2 The facts that are relevant for deciding this Appeal are, following persons namely , Mahendra Chimnal Shah, Ramesh Chimanlal Shah, Narendra Chimanlal Shah and Kokila Girdharilal Jhaveri filed a suit being Suit No.1411 of 1976 in this Court for rendition of account in relation to partnership firm M/s.Vora Brothers, which was constituted under the Partnership Deed dated 31-8-1952, against the Defendants namely, Panalal Bhikhabhai Shah, Sanalal Chunilal Shah, Babulal Karsonaal Vora, Chandrakant Karsonlal Vora, Suryakant Karsonlal Devawala, Rajendra Karsonlal Vora, Pankaj Karsonlal Vora, Sanjay Karsonlal Vora, Dhanlakshmi Karsonlal vora, and Pushpa Sevantilal Shah. The Defendant No.1 Panalal Bhikhabhai Shah died on 27-10-1979 and his legal 3 representatives were brought on record. Thereafter, it appears that on 5-12-1983 Plaintiff No.3 Narendra Chimanlal Shah died. However, no application was made for bringing his legal representatives on record in time. Then on 4-12-1986 Defendant No.2 Sonalal Chunilal Shah died and as regards him also no application was made in time to bring his legal representatives on record. Almost after 8 years of the death of Plaintiff No.3 and after five years of the death of Defendant No.2, in the year 1991 Chamber Summons was taken out for bringing on record the legal representatives of deceased Plaintiff No.3 and deceased Defendant No.2. The said chamber summons was registered as Chamber Summons No. 111 of 1991 and was dismissed by this Court on 26-3-1992. Upon dismissal of the Chamber Summons, on 9-6-1992 by way of consequential order the Court dismissed the suit having 4 abated. 3 Notice of Motion No.2189 of 1994 was taken out by the first Plaintiff for setting aside the order dated 9-6-1992 passed in above referred Chamber summons treating the suit as disposed of on the footing that the suit has abated and for permission to the first Plaintiff to proceed with the suit. That Notice of Motion has been dismissed by the learned single Judge by his order dated 6-8-1998. The learned single Judge relying on mainly on the judgment of the Supreme Court in the case of Ramagya Prasad Gupta v/s. Murli Prasad, AIR 1972 SC 1181 has held that in a suit for rendition of account, on death of one of the partners, failure to bring his legal representatives on record results in abatement of the suit. The learned single Judge has also considered the judgment of the 5 Supreme Court in the case of Girijanandini Devi and ors. v/s. Bijendra Narain Choudhary, AIR 1967 SC 1124. 4 The learned Counsel appearing for the Appellant submitted that the Supreme Court in its judgment in the case of Municipal Board, Lucknow v/s. Pannalal Bhargava and ors., 1976 (3) SCC 85 has taken a view that a suit filed for rendition of account and for recovery of the amount due does not get abated only on the death of some of the Defendants from whom rendition of account was claimed. The learned Counsel appearing for the Appellant, therefore, submitted that in view of the judgment of the Supreme Court in the case of Pannalal Bhargava the order passed by the learned single Judge is liable to be set aside. The learned Counsel for the Appellant also relied on the judgment of the Supreme 6 Court in the case of Girijanandini Devi referred to above. 5. The learned Counsel appearing for the Respondents, on the other hand, submitted that the Supreme Court by its judgment in the case of Ramagya Prasad Gupta, referred to above, has clearly laid down as law that a suit for account cannot be maintained between some only of the partners of the firm but every partner must be made a party. He submits that the judgment of the Supreme Court in the case of Ramagya P. Gupta is the judgment of a Larger Bench of the Supreme Court and therefore, that judgment will have to be followed by this Court. 6. Now, so far as the facts are concerned, there is no dispute that during the pendency of the suit some of the partners 7 against whom decree for rendition of accounts and money was claimed died and Chamber Summons taken out to bring their legal representatives on record was dismissed. As a result, their legal representatives were not on record. The question that arises for consideration is whether such a suit for rendition of account of partnership firm can survive against the remaining Defendants. Following observations found in paragraph 22 of the judgment of the Supreme Court in Ramagya Prasad Gupta makes the position clear beyond any doubt, .......We think that the law on the point is quite clear. It was held as far back as in 1887 that suit brought for partnership accounts after a necessary party derendant has been omitted, is liable to be dismissed. See Ramdoyal Junmenjoy Coondoo, (1887) ILR 14 Cal 791. The above decision was followed in Amir Chand v. Raoji Bhal, AIR 1930 Mad 714 with the observation that no dissent had ever been expressed from the above 8 decision. It was held that a suit for accounts cannot be maintained between some only of the partners of the firm but every partner must be made a party. 7. It is clear from the above observations that when one or some of the partners file a suit for rendition of account, all partners of the firm are necessary parties, and if this is the law that all partners are necessary party in such a suit, obviously therefore, when the suit abates against some of the Defendants, it will be a suit to which all the necessary parties are not joined and therefore, the suit will suffer from non-joinder of necessary party, and therefore, will have to be dismissed. The defect of non-joinder of all necessary parties is a curable defect, but in this case the defect will become incurable because the court has already rejected the Chamber Summons taken out for 9 bringing the legal representatives on record. In our view nothing more is required to be considered in view of clear principle laid down in the judgment of the Supreme Court in the case of R.P.Gupta(supra). So far as the judgment of the Supreme Court in Pannalal Bhargava s case is concerned, that suit was filed by the Municipal Corporation for accounts and for money decree against the Defendants Nos. 1 to 3, 5 & 7. It appears that during the pendency of the Appeal before the Supreme Court the Respondent No.5 against whom there was a decree for rendition of account made, died and therefore according to the Respondents Nos. 1 and 3 in that case the entire appeal will abate. This contention was negatived by the Supreme Court by observing that entire suit will not abate because the Municipal Corporation could have filed a suit for rendition of account only 10 against the Defendants Nos. 1 to 3. From the judgment it appears that the Defendants Nos.1 to 3, 5 and 7 against whom decree for rendition of account and money was claimed were not jointly liable. If they were not jointly liable, surely a suit for rendition of account could have been filed against some of them only. The learned Counsel relied on the observations of the Supreme Court found in paragraphs 4 & 5 of its judgment in the case of Pannalal Bhargava s case. They read as under:- 4. Mr.Andley, the learned Counsel for the respondents Nos. 1 to 3, has raised a preliminary objection on the ground that the appeal has abated on account of the fact that Mohd.Yusuf, respondent No.5, died more than six years back and the application of the appellant for setting aside abatement of the appeal with regard to respondent No.5 which was made on March 21, 1974, was dismissed by this Court on December 3, 1975. The learned Counsel, therefore, submits that the whole 11 appeal has abated on account of the above position. 5. We are, however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant No. 5, the defendants Nos.1 to 3 could individually be sued for rendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the court to be liable for the plaintiff s claim, is a different matter and will be decided in the suit. There is, therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd.Yusuf. 8. In our opinion, these observations will not help the Appellant, because it appears from the judgment of the Supreme Court in that case that the Defendants against whom a decree for rendition of accounts and money decree was claimed were also severally liable to render the accounts and to pay the money. It is clear from the observations of the Supreme Court quoted 12 above, in the case of Ramagya Prasad Gupta, that a suit for rendition of account only against some of the partners is not maintainable and every partner is a necessary party. In our opinion, therefore, in so far as rendition of account of partnership firm is concerned, every partner becomes necessary party. 9. The learned Counsel appearing for the Appellant, on the other hand, relied on the observations of the Supreme Court in its judgment in the case of Girijanandini Devi. The learned single Judge has considered that judgment and has held that that judgment is not relevant for deciding the issue involved in the case. We agree with the observations made by the learned single Judge, because it is clear from that judgment that that judgment was not in relation to a suit filed 13 by the partner for rendition of account by other partners. That judgment, in our opinion, apart from not supporting the case of the Appellant goes against him because the judgment has held that rendition of account is not a personal liability. The learned Counsel refers to several judgments of the Supreme Court, which say that the provision relating to abatement has to be liberally construed. But in our opinion, in view of the direct judgment of the Supreme Court on the point, we have no option but to dismiss the Appeal. 10. Taking overall view of the matter, therefore, in our opinion, in view of the Larger Bench judgment of the Supreme Court in Ramagya Prasad Gupta s case, where the issue was squarely decided by the Supreme Court, no exception can be taken to the order of the 14 learned single Judge, Appeal therefore, fails and is dismissed. (D.K.DESHMUKH, J.) (V.R.KINGAONKAR,J.)