GLORIOUS PLASTICS LIMITED Vs. LAGHATE ENTERPRISES

JUDGEMENT

(1.) THE Chamber Summons has been taken out on behalf of the plaintiffs for grant of leave to the plaintiffs under Order XXI, Rule 50 of the Code of Civil Procedure, 1908 (for short `the Code), to execute the Decree passed in the suit on 2nd September, 1988 against the respondents. On 20th July, 1990, the Chamber Summons was made absolute. However, on behalf of the 4th respondent herein a Chamber Summons bearing No. 858 of 1991 was taken out to set aside the Order passed on 20th July, 1990 as against the 4th respondent. On 18th September, 1992, the said Chamber Summons bearing No. 858 of 1991 was made absolute and the Order passed on 20th July, 1990 in the present Chamber Summons was as against the 4th respondent only set aside and the Chamber Summons was restored to file for rehearing today as against the 4th respondent only. Hence, the hearing of the Chamber Summons as against the 4th respondent only has proceeded before me.

(2.) IN respect of amounts due and payable under sixteen Bills of Exchange drawn by 1st defendants on the 2nd defendants in favour of the plaintiffs, on 2nd February, 1988, the plaintiffs lodged the suit against the defendants for recovery of Rs. 5,67,800/- together with interest on Rs. 5,00,000/- to be calculated at the rate of 18% per annum from the date of the suit till payment and costs of the suit. The 1st defendants are a partnership firm. The 2nd defendants are also a partnership firm. The leave under Order XXI, Rule 50 of the Code is sought as against the 4th respondent herein on the footing that the 4th respondent was a partner in the firm of the 2nd defendants and as such, liable to pay the decreetal amount to the plaintiffs.

(3.) MR. Shah, the learned Advocate appearing for the plaintiffs, has submitted that the 4th respondent, being a partner in the firm of the 2nd defendants (for short `the said firm) is liable to pay the decretal amount to the plaintiffs though he was neither used in his individual capacity as a partner in the said firm nor a writ of summons to answer the plaint in the suit was served upon him. Mr. Shah has further submitted that under section 25 of The Indian Partnership Act, 1932 (for short, `the said Act), every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner and since the 4th respondent was a partner in the said firm when the said Bills of Exchange were accepted by the 2nd defendants, the 4th respondent is also liable to pay the decretal amount to the plaintiffs. Mr. Shah has further submitted that the said firm is registered with the Registrar of Firms under the provisions of the said Act and the extract of registration issued in the year 1989 by the Registrar of Firms shows the name of the 4th respondent therein as partner in the said firm and as such, in any event, the 4th respondent held out himself to be a partner in the said firm and has rendered himself liable for the obligations of the said firm under the provisions of section 28 of the said Act. Mr. Shah has further submitted that the notice of retirement of the 4th respondent from the said firm though published in the vernacular newspaper on 7th October, 1988 is not in compliance with the provisions of section 72 of the said Act as public notice of the retirement of the 4th respondent has not been effected by publication in the official gazette and no notice has been given to the Registrar of Firms till 3rd January, 1992 and as such, under section 63 of the said Act, and as such, the 4th respondent has not ceased to be liable. Mr. Shah has lastly submitted that since facts are in dispute, the question in issue has to be decided in the same manner as the trial of a suit and therefore, the hearing of the Chamber Summons be adjourned to Court for recording evidence. In support of his this submission Mr. Shah has relied upon the case of (Jayantilal Mohanlal v. Narandas and Sons) reported in A. I. R. 1983 Bom. 226.