1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1541 OF 2007 IN SUIT NO.1327 OF 1997 Narendra Ramesh Sharma .. Plaintiff Versus Mrs.Ruksana Sulaiman Chamadia .. Defendant Mr.Sanjay Jain with T.N.Tripathi for plaintiff Mr.M.P.Vashi for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 17th February 2009 P.C. . By this Notice of Motion, the plaintiff applies for passing a final decree, dissolving 2 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. 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 It is not disputed before me that earlier a Notice of Motion was moved seeking identical relief but that was withdrawn with liberty to file a fresh motion.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. 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, 3 High Court, Bombay was appointed as Receiver of the assets of the suit partnership firm. 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:- ". ... 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." 4 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. 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. 5 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. 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. 6 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 7 person, I acceded to her request and the matter was stood over to 12th January 2009. 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. 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. 12. In any event and without prejudice, it is 8 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 9 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. 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 10 dated 28th March 2001, that this Court should not proceed to pass any further orders. 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. 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 11 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. 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 12 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 13 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. 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 14 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 15 Mr.Vashi. 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. 19. The controvesy was whether such an order 16 could be said to be a Interlocutory order or a preliminary decree. 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. 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 17 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:- "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 18 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 19 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 20 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." 22. From a perusal of these observations and findings, it is clear that the learned Judge has 21 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. 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 22 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. 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 23 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. 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, 24 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. 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. 27. Registry to draw up final decree determining and reckoning the above date and with 25 directions as aforesaid to the Court Receiver. All concerned to act on an authenticated copy of this order. 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. (S.C.Dharmadhikari, J)