-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.610 OF 2008 In SUIT NO.722 OF 1992 Rashid Abdul Sattar Oomerbhoy : Plaintiff V/s. Majid Ahmedbhai Oomerbhoy & Ors. : Defendants ... Mr.Gaurav Joshi with Mr.Jariwala and Ms Jyoti Ghag i/b. Thakore Jariwala & Associates for defendant no.1. Mr.R.Narichania with Ms Shoma Mitra i/b. Desai Desai & Carrimjee for the plaintiff. Ms Archana Patil i/b. Jurists Uno for defendant nos.4, 5 & 6. Mr.D.V.Deokar with Ms U. Srivastav, 1st Assistant & 2nd Assistant, respectively, to Court Receiver. ... CORAM : S.A. BOBDE, J. DATE : SEPTEMBER 09, 2008. P.C. 1. This Notice of Motion taken out by the defendant no.1 is mainly for a direction that the partnership firms owned by the parties to the suit stand dissolved with effect from the date of filing of the present suit. The partnership firms are:- -: 2 :- (i) M/s.Ahmed Oomerbhoy; (ii) M/s.Bombay Soap Factory; (iii) M/s.Hindustan Cold Storage; and (iv) M/s.Bharat Cold Storage. These firms are the subject-matter of suits between the parties. 2. Present Suit No.722 of 1992 is filed by the plaintiff, who may be described as "Rashid group" contains prayers broadly in respect of two things; (i) that the family arrangement dated 7.4.1989 read with allotment dated 5.1.1990 are valid and binding on the parties; and (ii) four partnerships firms referred to above be dissolved with effect from the date of filing of the suit. 3. The main contention on behalf of the learned counsel for the defendant no.1 is that this Court, per Deshmukh, J., has already recorded the consent of the parties which includes the present plaintiff that the firm M/s.Ahmed Oomerbhoy, which was to go to the plaintiff under the family arrangement, shall stand dissolved. That order has attained finality and, therefore, there is no reason why the present prayer made by the defendant no.1 which is to the same effect should not be granted. According -: 3 :- to the learned counsel, the consent given by the plaintiff for dissolution of the firm M/s.Ahmed Oomerbhoy which was to go to them under the family arrangement itself shows that the plaintiff has deviated from and subverted the family arrangement and there is, therefore, no family arrangement left to be adjudicated upon in this suit. 4. Mr.Narichania, the learned counsel for the plaintiff, submits that firstly, the consent recorded by this Court, per Deshmukh, J., is only in respect of one firm i.e. M/s.Ahmed Oomerbhoy whereas the present suit is in respect of the family arrangement which covers ownership of all the firms. Mr.Narichania submits that the plaintiff intends to give up the prayer for dissolution of the firm which is made in the alternative and intends to press the prayer only in respect of enforcement of the family arrangement. 5. Having heard the parties at length, one thing is clear, viz., that the suit is in respect of the family arrangement which affects the distribution of all the firms owned by the family in various names to the respective parties. The family arrangement obviously contemplates the existence of the firms i.e. functioning firms and not dissolved ones. It is true that there is an alternative prayer for the dissolution of the family -: 4 :- firms. Whether the alternative prayer should be granted is a matter which will be decided by the Court while hearing the suit. The Court will decide whether the family arrangement should be enforced, if not, whether the firms are liable to be dissolved. In these circumstances, though the plaintiff has agreed to the dissolution of one of the firms M/s.Ahmed Oomerbhoy and that agreement and consent has been recorded by this Court, it can’t be said that the present suit has worked itself out, nor can it be inferred from the consent given by the plaintiff to the dissolution that he has given up his prayers in respect of the family arrangement and has ip so facto agreed that all other firms also stand dissolved. 6. Mr.Joshi, the learned counsel for the defendant no.1, submitted that there is correspondence on record to show that the plaintiff has been demanding the distribution of profits on the basis that the firm is dissolved. He referred to certain correspondence on record such as letters dated 1.2.2006 and 3.10.2006 written by the plaintiff demanding that steps be taken to dispose of by partition of the remaining properties belonging to the firm. The reading of one of these letters is opposed by Mr.Narichania on the ground that it has been written without prejudice. However, there is still anther letter which can be read without objection. Assuming that the -: 5 :- letters be correct, it cannot be said that merely writing the letters, the parties have waived their rights to press their prayer in the suit. In any case, the effect of such letters can appropriately be examined in a suit. 7. Having regard to the aforesaid circumstances and particularly in view of the fact that the prayers in the suit are ranging from enforcement of the family arrangement as well as prayer for alternative dissolution of the firm, I am of view that one of the prayers made in the present Notice of Motion that the suit be decreed by dissolving all the partnership firms belonging to the family shall stand dissolved cannot be granted. 8. As regards prayer clauses (e) to (i), Mr.Narichania, the learned counsel for the defendant no.1, has no objection. Hence, prayer clause (e) is allowed, except in relation to Suit No.547 of 2003 which pertains to ownership of a trade mark. Further prayer clauses (f) & (g) for expeditious hearing of the suit and recording of evidence are allowed. Prayer clauses (h) & (i) may be decided at the final hearing of the suit. 9. Notice of Motion is disposed of in the above terms. There shall be no order as to costs. 10. The above suit to come up on 25.9.2008 for framing -: 6 :- of issues. S.A. BOBDE, J.