Pinky Jain & Anr v. Ameya Universal Project Private Limited

1. This intra court first appeal impugns the order-cumjudgment dated 1st December, 2016 in CS (OS) No.624/2013 and connected applications.

2. The impugned order refers and quotes Section 69 of the Partnership Act, 1932 which reads as under:-

3. Thereafter, the impugned order records as under:-

4. The appellant was the plaintiff in the civil suit and submits that the suit proceeds on the assumption that the partnership firm stood dissolved by legal notice dated 12th July, 2012 and, therefore, clause „(a)‟ to Sub-Section (3) of Section 69 of the Partnership Act, 1932, could be applicable. The argument is that this issue and question was missed in the impugned order.

5. Counsel for the respondent who is the defendant in the said suit, submits that the partnership firm was never dissolved in law. This statement is without prejudice to the contention of the respondent that there was no partnership firm which ever came into existence.

6. In view of the statement made by the counsel for the respondent, we do not think that the impugned order can be sustained. There is a difference between a suit filed on the basis and foundation that the partnership firm has been dissolved and consequently a claim for rendition of account is made; and a suit by a partner to enforce rights where the partnership has not been dissolved. Latter a suit can be dismissed, if the partnership firm was not registered. However, the former suit could not be dismissed on the ground that the suit is not maintainable being barred by Sub-Section (1) of Section (2) of Section 69 of the Partnership Act. It can be dismissed for the reason that the partnership firm was never dissolved and no prayer for dissolution has been made.

7. Learned counsel for the respondent submits that the respondent would raise the objections raised and noted above before the Single Judge and ask for a preliminary issue to be framed. It is open to the respondent to make the said prayer before the Single Judge, in respect of which we express no opinion.

8. Learned counsel for the appellant states that they would examine as to whether they have to amend the plaint or have to file a fresh suit after withdrawing the present suit. We do not make any comment on this aspect also.

9. We, accordingly, allow the present appeal in the aforesaid terms clearly recording that we have not expressed any opinion on merits. We have recorded that as per the appellant, the partnership stood dissolved and whether the statement is legally or factually correct or not, has to be examined. This aspect has to be decided. The appeal is disposed of in the above terms. There shall be no orders as to costs.

10. In order to cut short the delay, the parties are directed to appear before the Single Judge on 5th July, 2017.

(SANJIV KHANNA) JUDGE (REKHA PALLI)