Pinky Jain & Anr. v. M/S Ameya Universal Project Pvt. Ltd.

1. The plaintiff had filed an O.A.181/2015 against the order of the Joint the defendant to permit the inspection of its documents was rejected. When the case was fixed for arguments on this O.A., the defendant raised the issue about maintainability of suit on the ground that the suit relates to an unregistered partnership agreement and in view of Section 69 of the Partnership Act, 1932 (hereinafter referred to as 'the Act') it is barred and is to be rejected. It is argued that one of the reliefs the plaintiffs have sought is for dissolution of partnership.

2. The plaintiffs have controverted the above contentions. 2016:DHC:7763 CS (OS) No.624/2013 Page 2.

3. The relevant facts in brief are as follows: The plaintiffs have filed a suit on a Memorandum of Understanding (MoU) dated 10.07.2010 entered into between plaintiffs and the defendant in respect of business in the project namely “The Saphhire” in Sector-49, Gurgaon. Plaintiffs have stated that they had contributed a sum of ` 5.[5] crores into that project and they were assured guaranteed profit of `5,27,20,964/-and were also entitled to recover 50% of the profit. This suit was filed by the plaintiffs for recovery of ` 2,03,60,482/- and they have also sought preliminary decree directing the defendant to render the true and correct account relating to the business carried out in terms of MoU dated 10.07.2010 along with interest and also prayed for the dissolution of the partnership.

4. The defendant has taken the plea that Section 69 of the Act prohibits the filing of a suit by a partner against another partner or against the partnership firm unless either the partnership stands dissolved or the partnership deed is a registered document. It is argued by the learned counsel for the defendant that neither the MoU; which the plaintiffs alleges to be a partnership agreement; is a registered document nor plaintiffs have CS (OS) No.624/2013 Page 3. pleaded that the partnership was dissolved at any point of time rather they have sought dissolution without pleading any grounds for such dissolution.

5. It is argued by the learned counsel for the defendant that the entire suit is based on the premise that there is a partnership agreement between the parties and thus the present suit is barred under Section 69 of the Act as the MoU is an unregistered document. It is further argued that while deciding the maintainability of the suit, the court has to take into consideration the averments of the plaint. It is also argued that though the plaintiffs have sought dissolution of partnership in their prayer clause, no averment is there in the plaint showing that the plaintiffs are seeking dissolution of the partnership. It is further argued that there is no averment in the plaint that the firm stood dissolved nor does the plaint discloses that the suit is for enforcement of any right to sue for the dissolution of the partnership. It is further submitted that Chapter VI of the Act deals with the dissolution of partnership on several contingencies enumerated therein and the plaint is silent about it. It is further submitted that the plaintiffs have not in the cause of action paragraph i.e. para 16 of the plaint have shown any cause for dissolution of partnership. It is further argued that there is no CS (OS) No.624/2013 Page 4. whisper about the fact that the partnership stood dissolved or that they were seeking dissolution of the partnership.

6. It is argued by the learned counsel for the plaintiffs that the partnership was dissolved before the plaintiffs have filed the suit and the suit is not hit by Section 69 of the Act.

7. I have given thoughtful consideration to the rival contentions of the parties.

8. It is a settled proposition of law that under Order VII Rule 11 of the Code of Civil Procedure (CPC) in six classes of cases mentioned in clauses (a) to (f), the court is empowered to reject the plaint suo motu at any stage even after filing of the written statement. While considering the question whether the plaint is liable to be rejected or not, the court is to consider only the averments in the plaint and the documents filed along with the plaint.

9. The Supreme Court in case of Saleem Bhai & Ors. Vs. State of Maharashtra & Ors. AIR 2003 SC 759 held as under:

10. Hence, the Court has to decide only on the basis of averments in the plaint. The learned counsel for the plaintiffs has failed to point out any averment in the plaint to show that he has pleaded any reason for dissolution of the partnership. It is argued that the partnership was already dissolved when the suit was filed but the plaint is silent on this fact. On the other hand, in his prayer clause, the plaintiffs have sought dissolution of partnership without disclosing any contingency as mentioned in Chapter VI of the Act. The plaintiffs start their submissions in the plaint as under:

1. That the directors namely Mr. Deepak Gupta & Mr. Sanjay Gupta of the defendant were known to the plaintiffs, accordingly, have approached to the plaintiffs for developing the project in partnership. …….. CS (OS) No.624/2013 Page 6.

3. That believing upon the representations & assurances, of the defendant, the plaintiffs have entered into Memorandum of Understanding dated 10.07.2010 containing terms & conditions for running of the business in partnership, duly signed by the parties, therein it has been specifically agreed that the responsibility & authority for development and marketing of the developed portion in the aforesaid project was undertaken by the defendant and the defendant was authorized to receive/collect the entire sale consideration in respect of the FSI from the prospective buyers in respect of developed portions in the project.