VASANTRAO DATTAJI DHANWATAY Vs. SHYAMRAO DATTAJI DHANWATAY

JUDGEMENT

(1.) Ex facie an interesting but on closer scrutiny an infirm question of law is raised by the present revision. The entire controversy submitted has something to do with the application of provisions of Part X of the Indian Companies Act, 1956 (hereinafter called the Companies Act), as urged, excluding the operation per force the statute of Chapter VI of Indian Partnership Act, 1932 (hereinafter called the Partnership Act). Indeed, the main plank of submission is that in a suit purporting to have been filed under Chapter VI of the Partnership Act, if the partnership in issue consists of more than seven partners, but below twenty, on the date of the suit for dissolution of such partnership, per force the provisions of Part X of the Companies Act are attracted and by virtue of the provisions of Section 582 read with Section 583, the ordinary civil court would have no jurisdiction to entertain the suit and the only relief can be provided by the competent Company Court with regard to winding up or dissolution.

(2.) Few facts need be stated to appreciate the submission. The present applicants instituted in fact the present Civil Suit No. 9 of 1974 in the Court of Civil Judge, Senior Division, seeking relief, inter alia, of dissolution of partnership and seeking further a declaration that the firm "Shivraj Fine Art Litho Works" Nagpur stood dissolved as and from the midnight of January 9, 1974. The plaint filed by these applicants then alleged that the said partnership firm was a registered firm known as "Shivraj Fine Art Litho Works" and carried on business in lithographic and art printing business at Nag-pur and Bombay. Thereafter the original plaintiffs -- the present applicants --moved an application purporting to be under Order 23, Rule 1, of Code of Civil Procedure, seeking to withdraw this suit. Before the order could be made, defendants to the original suit applied for transposition as plaintiffs in that suit. The Court appears to have accepted the prayer of the plaintiff with regard to their withdrawal and the prayer of the defendants with regard to their transposition in the suit. The matter came to this Court and eventually the orders of the trial Court in that regard were affirmed in Civil Revision Application No. 501 of 1974 decided on 22-1-1975 = 1975 Mah LJ 337, After the transposition so ordered and without filing any written statement the present applicants, who are now defendants in that suit, appear to have moved anapplication at Exh. 163, questioning that in view of the provisions of Part X of Companies Act, the suit was unenter-tainable by the Court. It is rather strange that the Court purported to decide that application without insisting upon the applicants-defendants to file their written statement. Normal course of procedure is that the defendants once properly arrayed should be directed to file written statement and even by written statement such a defendant is entitled to raise the question of jurisdiction. Whatever may be the position it appears that by order below Exh. 163, the learned Judge negatived the contention. That order is questioned by this revision.

(3.) As stated above, the only question is whether the suit is entertainable. For the purpose of deciding this revision, it is assumed that on the date of the filing of the suit the partnership firm was registered and further it had eight members as partners.