1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION LEAVE PETITION NO.148 of 2010 IN SUIT No. (Unlodged) of 2010 Shri Suresh Kumar ... Petitioner versus Mr.Gaurav Arora & ors. ... Respondents ... Mr.D.H. Mehta with Mr.Dinesh Seth i/b Parag Kale for the petitioner. Mr.Pankaj Kowli, Mr.Mayur Khandeparkar, Ms. K. Khan i/b K.K. Associates for respondent nos.1 and 2. CORAM : D.G. KARNIK, J. DATED : 6th April 2010 P.C. 1. Heard learned counsel for the petitioner (proposed plaintiff) and respondent (proposed defendant no.1) 2. By this petition, the petitioner who is the plaintiff in the proposed suit seeks leave under Clause XII of the Letters Patent to file a suit in this Court at Mumbai. 2 3. The plaintiff and defendants were carrying on business in partnership in the name and style of “M/s.R.K.M. International” The business consisted of running of a hotel under the name and style of “Hotel Grand Legacy” at Amritsar. That was the only business of the partnership and the property of Hotel Grand Legacy was the only property of the firm. According to the petitioner, the partnership was at Will and was dissolved by a notice dated 1st August 2009. After about six months of the dissolution on 6th February 2010, the present leave petition has been made annexing thereto draft of the plaint of the proposed suit. 4. Clause XII of the Letters Patent reads as under:- “12. Original jurisdictions as to suits - As we do further ordain that the said High Court of Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been arisen, either wholly, or, in case the leave of 3 the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, or the Bombay City Civil Court. Under clause XII of the Letters Patent. this Court has a jurisdiction to entertain a suit for land or other immovable property if such land or property is situated within its jurisdiction. In respect of suits other than the suits for land, this Court has a jurisdiction if the whole of the cause of action has arisen within its jurisdiction or where the part of the cause of action has arisen within the jurisdiction of this Court, leave of the Court to file the suit is obtained. 5. In my view, the suit of the present nature relates to the land or other immovable property. It is no doubt true that the share of a partner in a partnership firm, during the subsistence of the partnership, is regarded as movable partnership (see Narayanappa Vs. Bhaskars Krishnappa AIR 1966 1300). However, the firm has been dissolved. By prayer clause (e), the plaintiff is seeking a 4 declaration that he has 25% share in movable and immovable properties of the erstwhile partnership firm. Since the firm has been dissolved, the plaintiff is claiming share in the immovable property which previously stood in the name of and/or belonged to the erstwhile partnership firm. After dissolution of the firm the property is required to be divided/distributed amongst the partners in accordance with law. The suit thus relates to the land or immovable property which is situated outside the jurisdiction of this Court at Amritsar and therefore this Court has no jurisdiction to entertain and try the suit. 6. Learned counsel for the petitioner submitted that suit does not relate to the land but relates to a share of a partner in the partnership property and as held in Narayanappa Vs. Bhaskars, it is a movable property and therefore suit relates to movable property. Since the firm also had an office at Mumbai, part of the cause of action has arisen in Mumbai and therefore, suit can be filed in this court with the leave of the Court. In my view, in respect of such suits is not obligatory on the Court to grant leave in every cases where the part of cause of action has arisen within jurisdiction of this court. The Court would have a discretion to grant or refuse leave or else there would not have been a provision for leave at all. Of course, the discretion may be exercised judicially. Assuming that the present suit does not relate to an immovable property, I am not inclined to grant leave under Clause XII for the reasons indicated below: 5 7. The only business of the partnership firm was of running a hotel at Amritsar. The business was carried out at Amritsar. The immovable property was situated at Amritsar. Only a nominal office appears to be in Mumbai. The defendant nos.1 and 2 who are the partners of the partnership firm reside at Amritsar. The accounts of the partnership were also maintained at Amritsar. Counsel for the plaintiff admits that the returns of the Income tax were also filed at Amritsar. In these circumstances, it would be extremely inconvenient for the defendants to come and defend the suit at Mumbai. Substantial, if not the whole, of the cause of action has arisen at Amritsar. In the circumstances, I decline to grant leave under Clause XII of the Letters Patent. (D.G. KARNIK,J.)