Bombay High Court
Tejpal Laherchand Jain vs Mohan Proofing Co. And 9 Others on 3 December, 2019
Equivalent citations: AIRONLINE 2019 BOM 2438
Bench: Pradeep Nandrajog, Bharati Dangre
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12-comap-454-19.doc
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL NO. 454 OF 2019
IN
COMMERCIAL NOTICE OF MOTION (L) NO. 1591 OF
2019
IN
COMMERCIAL SUIT NO. 241 OF 2019
Tejpal Laherchand Jain .. Appellant
(Org. Deft. No.9)
Vs.
Mohan Proofing Co. & Ors. .. Respondents
Dr. Birendra Saraf a/w Mr. Vaibhav Charawala & Ms. Amruta
Thakur i/by Rajan Yadav for Appellant.
CORAM: PRADEEP NANDRAJOG, CJ. &
SMT. BHARATI DANGRE, J.
DECEMBER 03, 2019.
P.C.
1. The Appellant, impleaded as Defendant No.9 in Commercial Suit No. 241 of 2019 which seeks specific performance of a Development Agreement as also a Tripartite 2/6 12-comap-454-19.doc Agreement, is aggrieved by the order dated 16.07.2019 refusing to take on record Written Statement filed by the Appellant, Commercial Notice of Motion (L) No. 1591 of 2019 seeking delay in filing the Written Statement to be condoned has been rejected.
2. As per the proviso to Rule 1 of Order VIII of the Code of Civil Procedure if the Written Statement is not filed within the 30 days prescribed under Rul1, the Written Statement can be permitted to be filed for reasons to be recorded in writing by the Court but not beyond 120 days.
3. In the instant case the application to take on record the Written Statement as also the Written Statement was filed before 120 days expired but after 30 days. The impugned order notes that sufficient cause or good reasons were not disclosed entitling the Appellant to have an order allowing the Written Statement to be taken on record.
4. Interestingly, we have gone through the plaint.
5. The Plaintiff No.1 claims to be a registered partnership firm and Plaintiff No.2 its current partner, have filed the suit pleading that Defendant No.1 was a partnership firm of which 3/6 12-comap-454-19.doc Defendant Nos.2 and 3 are currently the partners. The Defendant Nos. 7 to 9 are pleaded to be the erstwhile partners.
6. The first reference in the plaint to Defendant Nos.7 to 9 is in paragraph 7 of the plaint where it is pleaded that Defendant Nos.7 to 9 are the erstwhile partners of Defendant No.1. In paragraph 3 of the plaint it is categorically pleaded that currently Defendant Nos.2 and 3 are partners of Defendant No.1. Thereafter, a reference to Defendant No.7 is in paragraph 15 wherein it is pleaded that said Defendant acted on behalf the partnership firm, Defendant No.1, when an undated Development Agreement was entered into in the year 2007. Thereafter reference to Defendant Nos.7 to 9 is in paragraph 26 wherein it is pleaded that as per the Plaintiffs the object of Defendant No.1 in undertaking the redevelopment of the suit property was to usurp the FSI made available for the purposes of being utilized for the project. Thus inference is drawn from the fact that Defendant Nos.2 and 3 became partners of Defendant No.1 and Defendant Nos.7 to 9 retired from the partnership firm and we highlight that Defendant Nos.2 and 3 are companies in the business of real estate and development.
7. The first prayer in the plaint is to pass a decree and 4/6 12-comap-454-19.doc order against Defendant Nos.1 to 3 to complete the redevelopment of the suit property. The second prayer is to pass a decree against Defendant Nos.1 to 3 and in particular Defendant No.2 to remove the mortgage created on the suit property and we highlight that the phrase used is `remove the mortgage' a phrase which has no meaning in law. The next prayer is to pass a decree against Defendant Nos.1 to 3 to pay Plaintiffs arrears of rent. The next prayer (d) uses the word plural for all the Defendants requiring the court to decree that the Defendants should pay to the Plaintiffs compensation @ ₹ 200/- per sq. ft. from 01.10.2009 till actual possession.
8. The next four prayers are all against Defendant Nos.1 to 3 and Defendant No.4.
9. It is settled law that prayer in a suit takes colour from the pleadings. Prayer (d) of the plaint which seeks compensation from the Defendants relates to pleading in paragraph 54 of the plaint wherein it is pleaded that in addition to arrears of rent the Defendant Nos.1 to 3 are bound to pay compensation to the Plaintiffs @ ₹ 200/- per sq.ft. From 01.10.2009 till actual possession.
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10. Now, the rule of pleading is that a Defendant responds to the facts pleaded in the plaint relatable to the Defendant.
11. The only only fact pleaded in the plaint qua the Appellant who is Defendant No.9 is that he is an ex-partner of Defendant No.1.
12. There is no pleading in the plaint attracting Sub- section (3) of Section 32 of the Indian Partnership Act, 1932 which states that notwithstanding the retirement of a partners from a firm, the retiring partner and the continuing partners shall be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement.
13. Thus, we wonder what Written Statement could Defendant No.9 file except a plea of demurer. Interestingly, the Written Statement proposed to be filed contains the plea of demurer.
14. Under the circumstances, we see no injury being possibly caused to the Appellant by not being permitting him to file the Written Statement.
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15. Why we have penned the order today. The reason is to bring home that there is no cause of action pleaded in the plaint qua the liability of the Appellant and the plural expression used while making prayer (d) has to be understood with reference to the pleadings in paragraph 53.
16. For the aforesaid reasons we dispose of the Appeal declaring that it is not a case where the Appellant should have been called upon to file even a Written Statement.
Pravin D. Pandit Digitally signed by Pravin D. Pandit SMT. BHARATI DANGRE, J. CHIEF JUSTICE Date: 2019.12.04 11:32:29 +0530