KISHORE KUMAR B ZAVERI Vs. NAVINCHANDRA H SOMAIYA

JUDGEMENT

(1.) THIS suit has been filed by the plaintiffs for recovery of a sum of Rs. 4,83,480/- as per the particulars of claim Ex. 1 to the plaint; with further interest @ 24% p. a. from the defendant No. 1. An injunction is also sought against the defendants No. 1 and 2 restraining them from collecting rent payable to the plaintiffs by the defendant No. 3. A permanent injunction is sought restraining the defendant No. 3 from paying the rent payable by them to the plaintiffs in their respective share of 97% to the defendants No. 1 and 2.

(2.) THE Notice of Motion No. 2112 of 1995 was taken out by the plaintiffs for interim injunction restraining the defendants No. 1 and 2 from collecting the rent payable to the plaintiffs by the defendant No. 3. An order of injunction was also sought against the defendant No. 3 restraining him from paying the rent by them to the plaintiffs in respect of the share of the plaintiffs. This Notice of Motion came up for hearing on 3rd August, 1995. Ad interim relief in terms of prayer clause (a) of the Notice of Motion was granted. The aforesaid order was clarified by the order dated 9th October, 1995 enabling the Bank to pay the rent separately according to their share, as done by the Bank in the past. The present Notice of Motion has been taken out by the defendants with a prayer that the suit be dismissed as being barred under section 69 (2-A) of the Indian Partnership Act. In the event of prayer (a) not being granted, it is prayed that the plaint be returned to the plaintiffs for presentation to the proper Court, as the suit is between a landlord and a tenant, relates to recovery of rent and raises claims and questions arising under the Bombay Rent Act. It is also prayed that the aforesaid issue be decided as a preliminary issue.

(3.) AN affidavit in support of the Notice of Motion has been filed. It is stated that the suit is filed on contractual rights between the plaintiffs and the defendants No. 1 and 2 on the one hand constituting the partnership firm M/s. Navinchandra H. Somaiya and the third defendant on the other hand. The suit claim by the plaintiffs against the defendants No. 1 and 2 is to enforce an alleged power to realise the property of the dissolved partnership firm. The said firm is admittedly not registered. The suit is instituted by the plaintiffs suing as partners of the dissolved firm against the defendants No. 1 and 2, who had been partners in the said firm. The names of the plaintiffs have not been shown in the Register of Firms as partners. In the affidavit, the averments made in paras 3, 4, 9 and 11 of the plaint have been reproduced. It is stated that the aforesaid pleadings make it abundantly clear that the suit is barred in view of a the provisions of section 69 (2-A) of the Indian Partnership Act, 1932.