R C CHATRATH Vs. HITKARI BROSS OF DELHI

JUDGEMENT

(1.) This is an application of the defendant under the provisions of Order 7 Rule 11 CPC seeking rejection of the plaint on the sole ground that the defendant firm against whom suit has been instituted has since been dissolved on 15th November,1999 because of death of one of the partners namely Sh. K.P. Kapoor and that since partnership was at will, therefore, on the death of Sh. K.P. Kapoor, the same has since been dissolved. Learned counsel for the plaintiff on the other hand while repelling such arguments urged that the plaintiff can maintain suit even against the dissolved firm if right had accrued to the plaintiff at the time when firm was in existence. He fortifies his argument on the strength of averments made in the plaint and urged that the cause of action initially arose in favour of the plaintiff in the year 1994 when he allowed his share to remain in the partnership firm on the request of remaining partners and therefore even if one of the partners had died subsequently it would not make the suit of the plaintiff redundant. Learned counsel for the plaintiff also laid stress on Rule 1 of Order 30 CPC which deals with the situation where one of the partners of the firm dies before the institution or during the pendency of the suit.

(2.) I have heard learned counsel for both the parties on this application. Learned counsel for the plaintiff has placed reliance on AIR 1993 SC Page 2324. I have perused the authority which is on the aspect of filing a suit against dead person. Though this authority is not directly applicable to the case in hand, yet it states that in case the erring party takes prompt action for bringing on record LRs of the dead person after being aware of the death of that man, Court has power to bring his LRs on record. Admittedly the plaintiff has also made an application under Order 1 Rule 10 CPC in this case which is yet to be dealt with.

(3.) The plaintiff in his plaint admitted the factum of dissolution of partnership but stated that cause of action accrued in his favour when he choose to deposit his part of assets to the tune of Rs. 18,83,283/- with the firm in the year 1994 therefore notwithstanding the dissolution of firm the plaintiff's right to recover that sum from the erstwhile partnership firm remains particularly when dues of the plaintiff were regularly shown in the books of accounts of the defendant's firm since the assessment year 2001-02 as stated in the plaint. Therefore in view of the provisions of Order 30 Rule 1, the plaint cannot be rejected particularly when plaintiff in the plaint has shown that cause of action had accrued to him initially in the year 1994 when defendant's partnership firm was in existence of which the plaintiff was one of the partners at that time. The provisions of Order 30 Rule 1 thus comes to rescue of the plaintiff from his plaint being rejected. The application of the defendant thus has no merit and dismissed as such.