BALAJI CONSTRUCTION CO Vs. LIRA SIRAJ SHAIKH

JUDGEMENT

(1.) This First Appeal is at the instance of the Original Plaintiffs. Their suit came to be dismissed by the learned Civil judge, Senior Division, Margao, being hit by the provisions contained in Section 69 (2) of the Indian Partnership Act, 1932.

(2.) Mr. S. D. Lotlikar, the learned senior Counsel for the Appellants strenously urged that there was nothing on record to indicate that the agreements dated 03-09-1990 and 02-02-1991, of which specific performance is sought, were entered into during the ordinary course of business of the first Plaintiff-firm with the Defendant Nos. 1 and 2 and, therefore, bar of Section 69 (2) of the Indian Partnership Act, 1932 was not attracted. The learned Senior Counsel placed reliance on the Judgment of the Supreme Court in the case of M/s. Haldiram Bhujiawala and another Vs. M/s. Anand Kumar Deepak kumar and another, (AIR 2000 SC 1287).

(3.) The Appellants (hereinafter referred to as "the Plaintiffs") filed a suit against the Respondents (hereinafter referred to as "the Defendants") seeking specific performance of the agreements dated 03-09- 1990 and 02-02-1991, in the alternative claim tor damages and other incidental reliefs. In the light of the controversy involved in this appeal it is not necessary to refer to the facts in details. Suffice it to say that the Plaintiffs averred that the firm (first Plaintiff) was registered under the Indian Partnership Act, 1932 at Bombay. The details of the two agreements dated 03-09-1990 and 02-02-1991 were given and it was averred that the Plaintiffs had so far paid a consideration of Rs. 50,000/- as part payment ot the price of the suit property. The Plaintiffs averred that the Defendant Nos. 1 and 2 failed to obtain the requisite permission from the reserve Bank of India for the sale of the suit property and do necessary acts for the sale. The plaintiffs claimed that in the event the specific performance as prayed for was not being granted, the damages in the sum of rs. 50,00,000/- being 10% profit in the building project proposed to be undertaken on the site of the suit property, be granted.