1 cra-538-11.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO. 538 OF 2011 Mangilal Jagrupji Jain .... Petitioner vs Shri Bharat Shankarlal Dhakad (HUF) & ors. .... Respondents Mr. P. S. Dani for the petitioner. Mr. N.V. Walawalkar, Senior Advocate i/by Mr. Suresh M. Sabrad for respondent no.2. CORAM: ANOOP V. MOHTA, J. DATE : September 15, 2011 ORAL JUDGMENT: The Petitioner (Defendant No.3) is one of the purchaser, along with the Plaintiffs (Respondents 1 to 4) of a property described in the Agreement dated 29 December 2007 (the Agreement), executed with Respondents 5 and 6 (Defendants 1 and 2). The Agreement reflects that the Plaintiffs along with the Petitioner, as partners of M/s. Mahavir Developers (the firm), entered into the agreement for purchase of the property. As the Defendants failed to perform their part, the present Suit is filed, in their individual capacity, for a 2 cra-538-11.sxw specific performance based upon the agreement. 2 The Petitioner filed an application under Order VII, Rule 11 (d) of the Code of Civil Procedure (CPC) for rejection of the plaint basically on the ground that the Defendants executed the agreement with the partnership firm namely, M/s.Mahavir Developers (the firm), of which the Plaintiffs 1 to 4 are the partners. The firm is not registered. Therefore considering Section 69(2) of the Indian Partnership Act (Mah. Amendment), the suit as filed in the individual capacity is not maintainable. The defence was that the Plaintiffs and the Petitioner individually invested the amount and therefore in their individual capacity entered into the transaction, though the document reflects the name of the intended firm. It could not finalised and registered till this date The learned Judge after hearing both the parties, considering the averments made in the plaint and referring to the provisions of law read with the judgments of the Supreme Court rejected the said application. Therefore, the present Civil Revision Application. 3 In view of this provision other party may apply for rejection of the plaint if suit is barred by law based upon the basic averments in 3 cra-538-11.sxw the plaint itself. The averments in the plaint also includes, as rightly contended by the learned counsel appearing for the Petitioner, the supporting and relevant documents filed with the same, at the relevant time. There is no question of going to the defence/written statement, filed or not. Even the reply stating the merits of the matter filed to such application for rejection of the plaint may not be necessary to consider merits of the matter in view of the object, nature and scope and purpose of Order VII, Rule 11(d) of CPC. 4 The Apex Court in Vishnu Dutt Sharma vs. Daya Sapra (Smt)1 has elaborated the scope and purpose of the provision as follows: “7 Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (for short “the Code”) provides for rejection of a plaint inter alia on the premise that the suit was barred by any statute. Such an embargo in the maintainability of the suit must be apparent from the averments made in the plaint. 5 The Apex Court also in Popat and Kotecha Property vs. State Bank of India Staff Association2 has elaborated the scope and purpose of the provision as follows: 1 (2009) 13 SCC 729 2 (2005) 7 SCC 510 4 cra-538-11.sxw “23 Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.” 6 It is also necessary to consider at this stage the object and purpose of Section 69(2) of the Indian Partnership Act, 1932 (Mah. Amendment) and the effect of non­registration of firm and the averments so raised along with the document filed on record, with a view to see whether the impugned order is in accordance with law or not. The consequence of such application is always goes to the root of the Suit itself. If case is made out, the plaint needs to be rejected at that stage itself. 7 In the present case, there is no serious dispute and basically in view of the averments made in the plaint that the alleged partnership firm was not registered on 29 December 2007 when the agreement in 5 cra-538-11.sxw question was executed, though the parties have signed the agreement/document as partners of the firm. The effect of non­ registration of such partnership firm just cannot be overlooked, but subject to the averments made in the plaint only. It is very clear from the averments read with the documents annexed to the plaint that the Suit is filed for specific performance of the agreement in their individual capacity, against the Respondents and the Petitioner. Therefore, at this stage, from the averments it is clear that they have not pleaded the specific performance of the agreement in the name of the firm. The effect of such prayers and/or averments, the Court will consider during the trial. But to say that such Suit is liable to be dismissed, at this stage, based upon the principle of Order VII Rule 11(d) CPC as contended, in my view, is not correct. The submission that the parties can have such oral partnership at any time and can be registered at subsequent stage though cannot be disputed, yet in the present facts and circumstances, that aspect just cannot be gone into by overlooking the averments made in the plaint and the documents on record, which nowhere deals with the aspect of the un­registered firm. The intention and/or the object of reference of firm’s name and what should be the consequence of filing of the suit in their individual capacity also cannot be gone into at this stage merely on 6 cra-538-11.sxw the basis of reply/submission so made by the learned counsel for the Petitioner. All these facets need detail inquiry and evidence. It is unregistered till this date in view of the disputes between the parties. The submission revolving around Section 69(2) of the Indian Partnership Act cannot be the foundation to reject the plaint, in the present case. 8 The contention of the learned Senior Counsel appearing for the Respondents, based upon the above judgments, therefore, supports the impugned order on above facets. The reasoning given by the learned trial Judge in this background cannot be stated to be bad in law and/or contrary to the facts on record. 9 The judgment in Goverdhandoss Takersey vs. M. Abdul Rahiman and anr.1 as cited by the learned senior counsel appearing for the Respondent referring to Section 69(2) of the Indian Partnership Act and the submission that in every matter, the plea of non­registration of the firm that itself cannot be the foundation to reject the plaint is also correct.There is also another facet that the Suit filed by the alleged individual partners in their individual capacity 1 AIR (29) 1942 Madras 634 7 cra-538-11.sxw cannot be dismissed under Order VII Rule 11(d) of CPC at this stage of the proceedings at the instance of the Petitioner who was also one of the signatories to the agreement and who has full knowledge that the partnership was not registered or was not in existence at the relevant time. 10 Resultantly, I see there is no reason to interfere with the impugned order. The CRA is dismissed. There shall be no order as to costs. (ANOOP V. MOHTA, J.)