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Madhya Pradesh High Court · body

2017 DIGILAW 415 (MP)

Siddharth Patel v. Shravan Kumar Patel

2017-03-28

NANDITA DUBEY

body2017
ORDER : Nandita Dubey, J. Present case concerns itself with the legality of the order dated 16.07.2016, passed by Eighth Additional District Judge, Jabalpur in C.S. No.7-A/2012, whereby the application filed by the defendant No.2/petitioner under Order 7, Rule 11 (d) of the Code of Civil Procedure was rejected. 2. Respondents herein filed a civil suit on 12.05.2012, interalia claiming the following reliefs :- (a) to issue a decree dissolving the defendant No.1 firm; (b) to grant a decree directing the defendants to produce and settle the accounts of the Firm and direct payment of the share of the plaintiff put of such accounts i.e., Accounts of the credits, property and effects belonging to the partnership firm, and accounts of all the assets and liabilities of the partnership including Registered Trademarks and Tradenames and the subsidiary holdings in Schedule A as well as an account of all dealings and transactions between the plaintiff and defendants from the inception of the Firm uptill the date of preparation of final decree of dissolution; (c) to appoint a competent person as a receiver to take accounts and complete the process of winding up as aforesaid; (d) to issue a decree of permanent prohibitory injunction restraining the defendants from dealing with the assets of the Firm or dealing with the business of the firm i.e., credits, property and effects belonging to the partnership firm and all the assets and liabilities of the partnership including Registered Trademarks and Tradenames and the subsidiary holdings in Schedule-A, which is in any way prejudicial to the interest of the plaintiff; (e) To award the cost of the suit against the defendants and (f) To grant any other relief which this Hon'ble Court deems fit and proper in the facts of the case to the plaintiff. 3. During the pendency of the civil suit, the petitioner herein moved an application to reject the plaint under the provisions of Order 7, Rule 11 (d) of the C.P.C., as according to him the suit was barred by limitation in view of the fact that the Firm stood dissolved on 15.05.2005, on the death of First Party as per the clause 10-b of the partnership deed dated 30.04.1986. 4. 4. The plaintiff resisted the application on the ground that the question of limitation is a mixed question of law and fact and cannot be decided at the preliminary stage under the provisions of Order 7, Rule 11 (d) of the C.P.C. 5. The trial Court observed that the suit is based on the partnership deed dated 30.04.1986, which contains different clauses regarding dissolution of the Firm and as the parties relying on different clauses of the partnership deed have disputed the date of dissolution of the Firm, and question of limitation is a mixed question of law and fact, it would not be possible to decide the same without recording the evidence. The Trial Court further observed, that issue in this regard has been framed and keeping in view the facts and circumstances of the case, rejected the application of the petitioner. 6. Mr. Kishore Shrivastava, learned Sr. Counsel for the petitioner submits that the approach of the trial Court is clearly erroneous. Respondent No.1 has prayed for dissolution of the Firm and rendition of accounts relying on the clauses of the partnership deed dated 30.04.1986. Under the circumstances, the partnership deed filed along with the plaint could be looked into for deciding the application under Order 7, Rule 11 of the C.P.C. Learned Sr. Counsel in support of his contention has relied on Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 , wherein para 18 of the judgment, the Apex Court has held: "It is settled law that when a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint." It is further urged that Clause 10(b) of the partnership deed stipulates that on the death of First Party to the Firm, the Firm shall Ipso-Facto stands dissolved without any further act or deed of the part of the other parties to the partnership deed and in view of the admission of respondent No.1 herein in para 6 of the plaint regarding death of First Party Shri Paramanand Bhai Patel on 15.05.2005, and in view of Section 42 of the Partnership Act, 1932, the suit filed on 12.05.2012 is clearly barred by limitation. 7. Learned Sr. 7. Learned Sr. Counsel next argued that the objection regarding maintainability of suit can be raised at any stage, even after filing of written statement or after framing of issues. To buttress his contention, learned Sr. counsel has relied on the case of Saleem Bhai and others v. State of Maharashtra and others ( 2003 (1) SCC 557 ) the Apex Court has held: "With reference to Order 7, Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7, Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage." 8. Per Contra, Shri Siddharth Gulatee, learned counsel for respondent No.1 submitted that the question of limitation is a mixed question of law and fact and to reach to a conclusion whether the suit is barred by limitation, the question whether the Firm was in existence or not and if not when did it get dissolved is to be seen. Referring to clause 6 and 16 of the partnership deed and Section 43 of the Partnership Act, it is submitted that subsequent conduct of the parties reflect that the Firm continued with the existing parties. Relying on the case of Popat and Kotecha Property v. State Bank of India Staff Association (2005) 7 SCC 510 , it is next argued that the intention of the party is to be gathered solely from the averments of the plaint without making any addition or subtraction to its. The Apex Court in para 9 has held :- "There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. The Apex Court in para 9 has held :- "There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities." 9. Per contra, Ms. Madhavi Diwan, learned counsel appearing for defendant No.4/respondent No.4 submits that Order 7, Rule 11 (d) of C.P.C. applies only where the statements made in the plaint without any doubt or dispute shows that the suit is barred by any law in force. It does not apply in the case of disputed question. Learned counsel further submits that the partnership was at will and having regard to Section 43 of the Partnership Act, 1932, read with Clause 6 and 16 of the partnership deed, it cannot be said that the Firm has dissolved. 10. I have heard the learned counsel for the parties at length and perused the record. 11. It is well settled that, plaint can only be rejected if it squarely falls within the ambit and four corners of Order 7, Rule 11 of the C.P.C. and not otherwise. The Supreme Court in the case of Kamla and others v. K.T. Eshwarasa and others (2008) 12 SCC 661 , after examining the relevant provisions of Order 7, Rule 11 of C.P.C. held as under :- "Order 7, Rule 11 (d) CPC has limited application. For its applicability it must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. For its applicability it must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. What would be relevant for invoking Order 7, Rule 11 (d) CPC are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 12. In the backdrop of aforesaid legal position, the plaint averments and the terms of the partnership deed dated 30.04.1986 are examined. The claim made by the parties revolves around Clause 6, 10 and 16 of the Partnership deed dated 30.04.1986, which are reproduced as under :- 6. The partnership shall be a partnership at Will. 10. 12. In the backdrop of aforesaid legal position, the plaint averments and the terms of the partnership deed dated 30.04.1986 are examined. The claim made by the parties revolves around Clause 6, 10 and 16 of the Partnership deed dated 30.04.1986, which are reproduced as under :- 6. The partnership shall be a partnership at Will. 10. The parties hereto agree that : (a) during the life time of the party of the first part, upon being so directed by the party of the First part at his sole and unfettered discretion; and (b) after the death of the party of the first part, ipso facto and without any further act or deed, the firm shall stand dissolved and the following provisions shall then apply :- (i) the partnership business (but not goodwill) shall be taken over by the party of the eight part as a going concern along with all liabilities of the partnership just prior to such dissolution; (ii) for such take-over the values as appearing in the books of the partnership firm just prior to such dissolution shall be the basis; and (iii) in respect of good will, the party of the eighth part shall be entitled to the same (or the right to use the same) only in the event it is so directed by the party of the first party, on such direction and after the death of the party of the first party if all the remaining surviving partners who are entitled to goodwill pursuant to clause 7 hereof, no agree upon, and in either case the terms of governing the take over of good will or use thereof as aforesaid (including the consideration thereafter) shall be such as may be specified in such directions of the party of the first part or as the case may be, agreed upon by the aforesaid remaining surviving partners. 16. The death/retirement/winding up of a partner as the case may be, shall not dissolve the partnership as to the other partners. 13. In the present case, diverse claims are made by the petitioner. 16. The death/retirement/winding up of a partner as the case may be, shall not dissolve the partnership as to the other partners. 13. In the present case, diverse claims are made by the petitioner. It is evident from the application under Order 7, Rule 11 of C.P.C. that the contention of the petitioner before the Trial Court were two fold :- (i) no cause of action accrued to respondent No.1 on 05.03.2012, as the Firm was dissolved in the year 2000 by Shri Paramanand Bhai Patel (First Party) during his life time, taking recourse to clause 10(a) of the partnership deed and the business was taken over by the company M/s Mohanlal Hargovinddas Bidi Udyog Private Ltd. and (ii) that as per clause 10(b) of the partnership deed, on the death of First Party on 15.05.2005, the Firm stood dissolved Ipso-Facto without any further act on the part of the existing members of the partnership deed. However, only point No.2 has been pressed before this Court. 14. In the instant case, there is an assertion in para 5 and 6 of the plaint that the partnership is at will and after the death of Paramanand Bhai Patel, the firm continued with the remaining parties. Section 43 of the Partnership Act provides that if the Firm is at will, it can be dissolved by the partner or partners by giving notice in writing to all the partners of the institution to dissolve the Firm. Para 5 of plaint mentions that cause of action for filing the suit arose on 05.03.2012, on issuance of notice of dissolution by the plaintiff. In such a factual situation, it cannot be said that the suit is barred by any law. For the purpose of invoking Order 7, Rule 11 C.P.C., the statement in the plaint without addition or subtraction must show that is barred by any law. The plea of limitation in the case at hand is founded on the date of dissolution of the Firm. Whether the firm was dissolved in the year 2000 by Paramanand Bhai Patel taking recourse to clause 10(a) of the partnership deed or it stood dissolved in 2005 after the death of First Party Paramanand Bhai Patel as per clause 10(b) of the partnership deed or continued thereafter as asserted by the plaintiff are all disputed questions, which requires evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by limitation, without any doubt or dispute. In the case at hand, the question of limitation is dependent on the date of dissolution of the Firm. If the Firm was dissolved in the year 2000, by Paramanand Bhai Patel during his lifetime by taking recourse to clause 10 (a) of the partnership deed, then the question of it being dissolved again in 2005, after the death of Paramanand Bhai Patel, does not arise. 15. There is a dispute to the interpretation/expression of different clauses of the partnership deed. Both the parties are interpreting the different clauses to their advantage. In the case of Abdullah Ahmad v. Animendra Kissen Mitter AIR 1950 SC 15 , the Supreme Court has dealt with a similar situation and it has been held that : "Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case of particularly when acts are done shortly after the date of instrument." In the case of Rajesh Grover v. Smt. Rita Khurana & Ors. 2005 (4) RCR (Civil) 721, after examining the relevant provisions of Order 7, Rule 11 CPC, it was held : "The Court should be circumspect in rejecting a plaint at the threshold as it entails very serious civil consequences. The Court should exercise this power only in those cases where it comes to the clear conclusion that any of the conditions enumerated in Clauses (a) to (f) are satisfied and it should be so done in exceptional-circumstances. The truthfulness of narration of facts in the plaint or the accuracy and integrity of this document. The written statements are not to be judged at the stage of rejection of plaint. That is a matter of evidence which the Court shall go into at the trial of the case. The weakness or the strength of the case of the parties is not to be judged at that stage. A distinction is to be drawn between rejection of a plaint and dismissal of a suit." 16. Ex facie in the present case, on the reading of the plaint, it cannot be said that the suit is barred by limitation. The weakness or the strength of the case of the parties is not to be judged at that stage. A distinction is to be drawn between rejection of a plaint and dismissal of a suit." 16. Ex facie in the present case, on the reading of the plaint, it cannot be said that the suit is barred by limitation. The court shall reject the plaint under Order 7, Rule 11(d) of CPC, when the plaint does not contain necessary averments relating to limitation. If something more than the bare reading of the plaint is required to decipher whether relief claimed is barred by limitation, it is not proper to reject the plaint. 17. In view of the afore-discussed, there is no merit in the revision and the same is dismissed as such. No order as to costs.