REHMANKHAN DAWOODKHAN Vs. BOMBAY IRON SYNDICATE

JUDGEMENT

(1.) These two chamber summonses are taken out by Messrs. Shah Traders, a firm doing business at North Brook Street in Bombay, and Messrs. Shriram Murlidhar, a firm carrying on business at Kalbadevi, Bombay, for a direction vacating the order passed by me on 13-4-1951, granting leave to servo a warrant issued by the Commissioner for. Taking Accounts and to serve notice under Order 30, Rule 5, Civil P. C., and for an order that the issue, whether the applicants are partners in the defendant firm, be directed to be tried, and that ail further proceedings before the Commissioner pending the hearing and final disposal of the issue be stayed.

(2.) In order to understand the nature of the application it is necessary to notice a few facts. One Rehmankhan Dawoodkhan, who will hereafter be referred to as'the plaintiff, filed suit No. 1206 of 1947 in this Court against tne Bombay Iron Syndicate, a firm carrying on business at Vithalbhai Patel Road, Bombay, hereinafter referred to as the defendants, seeking to obtain a decree for Rs. 89,183-15-0 as damages for breach of contract by the defendants, and for Rs. 5,000 being an amount deposited with the defendants, with interest thereon at the rate of 6 per cent, per annum from 18-12-1946, till the date of the decree. The summons of the suit was served upon one Hiralal L. Sharma as partner of the firm with notice under Order 30, Rule 5, Civil P. C. The defendants appeared through Messrs. Mobile Parekh & Co. in the suit, and filed their written statement and counterclaim on 15-0-1947. The plaintiff filed his reply to the counterclaim denying his liability in the counterclaim. The attorneys for the defendants thereafter obtained their discharge on 17-3-1950. Thereafter Hiralal L. Sharma died in about the middle of October 1950, but no intimation was given to the Court about the death of Sharma. The suit then came on for hearing on 14-12-1950. The counterclaim being for an amount less than Rs. 25,000 was dismissed as not maintainable in this Court, and the suit was tried as an uncontested suit. A decree for return of the amount of deposit of Rs. 5,000 with interest was passed. The claim of the plaintiff for damages on the footing that there was a breach of contract on 17-2-1947, was referred to the Commissioner for Taking Accounts. On 23-1-1951, the reference was filed before the Commissioner for Taking Accounts. Rehmankhan Dawoodkhan and Ors. vs. Bombay Iron Syndicate (13.08.1951 - BOMH... Page 3 of 8 y Iron Syndicate (13.08.1951 - BOMH... Page 3 of 8 The plaintiff thereafter obtained an order for service of warrant, and accordingly a warrant-was served upon four persons; they wore (1) Satdev Saigal, (2) Messrs. Shriram Murlidhar, (3) Messrs. Shah Traders, and (4) Jagmohan Pranlal Bhuta, alleged to be four partners in the defendant firm. Thereafter Jagmohan Pranlal Bhuta appeared before the Commissioner for Taking Accounts and contended that ho was not a partner of the defendants. The plaintiff ultimately applied under Order 30, Rule 5, Civil P. C., to serve notice on all the four persons whose names I have mentioned earlier, as partners of the firm. On 184- 1951, an application was made to me in Chambers for an order for serving a warrant under Order 30, Rule 5, Civil P. C. The applicants in the two chamber summonses were thereupon served with warrant as partners of the defendant firm. The applicants appeared before the Commissioner for Taking Accounts and denied that they were partners of the defendant firm as alleged by the plaintiff. The Commissioner thereupon adjourned the meeting to enable the alleged partners of the defendant firm to move the Court; and thereafter the present two chamber summonses have been taken out by two out of the four alleged partners of the defendants.

(3.) It has been contended by Mr. Section T. Desai on behalf of the applicants that steps to serve them should have been taken at the time when the summons in the suit was served and not after a preliminary decree was passed in favour of the plaintiff; and Mr. Desai has contended that the issue, whether the applicants were partners of the defendant firm, should be decided by the Court, and for that purpose the proceeding before the Commissioner should be stayed.