Magic Properties Pvt. Ltd. And ORS v. Rajeshwari Ramesh Modi And ORS

SA Pathan

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8715 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Rahul Ramesh Modi & Ors ... Respondents SHABNOOR AYUB PATHAN SHABNOOR AYUB PATHAN Date: 2023.11.09 15:56:39 +0530 WITH WRIT PETITION NO.8716 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Saroj Shriram Gupta & Ors ... Respondents WITH WRIT PETITION NO.8712 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Utsav Shriram Gupta & Ors ... Respondents WITH WRIT PETITION NO.8651 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Rajeshwari Ramesh Modi & Ors ... Respondents WITH WRIT PETITION NO.8711 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Ketan Dhirajlal Barai & Ors ... Respondents

WITH WRIT PETITION NO.8916 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Ekta Ankit Agarwal & Ors ... Respondents WITH WRIT PETITION NO.8717 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Rohit Ramesh Modi & Ors ... Respondents WITH WRIT PETITION NO.12679 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Ramesh Kedarmal Modi & Ors ... Respondents WITH WRIT PETITION NO.12678 OF 2022 M/s Magic Properties Pvt. Ltd & Ors ... Petitioners V/s.

Ankita Agarwal & Ors ... Respondents Mr. Atul Damale, Sr. Advocate a/w Ms. Angeline Rodrigues a/w Ms. Payal Vardhan & Akanksha Kadam i/by Ms. Kranti S. Anand, for Peititoners.

Mrs. Suananda Kumbhat a/w Mr. Kunal Kumbhat, for Respondent No.1.

Mr. C. D. Mali, AGP for State/Respondent.

Mr. Shriram Gupta, P. A. of Respondent No.1 in WP Nos.8916/2022, 8716/2022 & 8712/2022.

CORAM

: AMIT BORKAR, J.

DATED : NOVEMBER 7, 2023 P.C.:

1.

Since common questions of law are involved in all the writ petitions and parties are the same, this common judgment disposes of all writ petitions.

2.

Respondent No.1 filed commercial summary suits for claiming the amount as follows:

Writ Petition No.

Summary Suit No.

Notice & BOE dishonour date Claim amount 30/06/2020 43,70,363 23/06/2020 23,57,633 10/12/2020 44,37,857 13/11/2020 31,84,346 13/11/2020 51,65,598 13/11/2020 75,10,534 13/11/2020 11,87,839 23/06/2020 56,75,784 23/06/2020 24,49,755 3.

According to respondent No.1 (plaintiff), defendant No.1 is a registered partnership firm of which defendant Nos.3 to 13 are the partners. Petitioners Nos.1 and 2 are defendants Nos. 5 and 8, and petitioners Nos.3 and 4 are defendants Nos.14 and 15 in the suit. According to him, various amounts, as mentioned below, were advanced to defendant No.1/firm. The loan amount and the date of disbursed of the loan as mentioned in the suit:

Writ Petition No.

Summary Suit No.

Date of loan disbursed Loan amount 29/03/2016 25,00,000 09/02/201004/12/2012 13,50,000 02/04/2014 25,00,000 02/05/2014 & 09/02/2018 19,00,000 17/10/2023 & 23/07/2015 30,00,000 30/06/2014 & 13/07/2015 & 08/02/2018 31,00,000 05/08/2014 7,00,000 18/01/2010 & 04/12/2012 32,50,000 18/01/2012 & 04/12/2012 14,00,000 4.

According to the plaintiff, defendant No.1 made part payment of the amounts as mentioned in the suit, which are as follows:

Writ Petition No.

Summary Suit No.

Part-payment 3,75,000+ 25,000 2,02,500 + 13,500 (P+I) 1,35,000 & 9,000 4,50,000 + 30,000 2,40,000 + 20,000 1,05,000

4,87,500 + 32,500 2,10,000 + 14,000 5.

Towards acknowledgement of balance liability, defendant No.1 issued various cheques, and the last cheques and dates of dishonoured cheques are as follows:

Writ Petition No.

Summary Suit No.

Date of Last Cheque Amount Date of dishonour 12678 of 2022 28 of 2021 30/09/2017 21,25,000 29/12/2017 24 of 2021 02/05/2017 11,47,500 27/07/2017 26 of 2021 31/01/2018 28,95,634 25/04/2018 16 of 2021 31/07/2020 7,56,000 20/10/2020 18 of 2021 31/07/2020 25,20,000 20/10/2020 12679 of 2022 30 of 2021 31/07/2020 13,44,000 20/10/2020 31 of 2021 31/07/2020 5,69,625 20/10/2020 23 of 2021 02/05/2017 29,12,333 27/07/2017 22 of 2021 02/05/2017 27,62,500 27/07/2017 6.

According to the plaintiff, defendant No.1 issued the last bills of exchange amount as follows:

Writ Petition No.

Summary Suit No.

The last bills of exchange amount 21,25,000 2,50,000 & 5,00,000 & 1,00,000 & 5,00,000 25,00,000 9,00,000 & 10,00,000 30,00,000 6,00,000 & 5,00,000 & 5,00,000 & 15,00,000

7,00,000 dated 05/08/2014 2,50,000 & 3,50,000 & 1,50,000 & 5,00,000 & 10,00,000 & 7,50,000 3,00,000 & 2,00,000 & 1,50,000 & 7,50,000 7.

On refusal of defendant No.1, the plaintiff issued notices as follows:

Writ Petition No.

Summary Suit No.

Notice and BOE dishonour date 30/06/2020 23/06/2020 10/12/2020 13/11/2020 13/11/2020 13/11/2020 13/11/2020 23/06/2020 23/06/2020 8.

Despite the issuance of notices, defendant No.1 failed to pay the amount and, therefore, the original plaintiff has filed commercial summary suits referred to above.

9.

The liability pleaded in the suit against the petitioner is that petitioners Nos.5 & 8, being partners of defendant No.1, and defendant Nos.14 & 15, being directors of defendant Nos.5 & 8, are liable for the liability of defendant No.1/partnership firm. The Trial Court granted conditional leave to the petitioner on deposit

of the amount as follows:

Writ Petition No.

Summary Suit No.

Date of conditional leave Conditional leave amount 28 of 2021 05/07/2022 21,00,000 24 of 2021 05/05/2022 11,34,000 26 of 2021 06/05/2022 28,95,634 16 of 2021 04/05/2022 17,56,000 18 of 2021 06/05/2022 25,20,000 30 of 2021 06/05/2022 28,44,000 31 of 2021 06/05/2022 5,95,000 23 of 2021 05/05/2022 27,30,000 22 of 2021 04/05/2022 11,76,000 10.

The petitioners have, therefore, filed present writ petitions challenging the order passed by the Trial Court granting conditional leave on deposit of the amount mentioned in the impugned order.

11.

Learned Senior Advocate, on behalf of petitioners, submitted that the defendants had denied their status as partners of defendant No.1. However, the Trial Court construed such denial as an admission of the petitioners' status as partners of defendant No.1 and, therefore, the impugned order deserves to be quashed and set aside. It is submitted that petitioner Nos.1 & 2 had retired from defendant No.2 with effect from 1 April 2015. The extract of the register of forms indicates that such an entry was made on 25 April 2017. It is further submitted that defendants Nos.14 & 15 become directors of defendants Nos.5 & 8 in the year 2019, i.e.

after the date of transactions; hence, they are not liable. 12.

Per contra, learned, Advocate for respondent No.1/original plaintiff submitted that petitioners Nos.1 & 2 were partners of defendant No.1 firm on the date of receipt of amount from plaintiff and thereafter, on the date of issuance of cheques towards an acknowledgement of liability. The retirement of petitioner Nos.1 & 2 having not been notified under Section 32 (3) of the Indian Partnership Act, 1932, such retirement is not binding on the third parties. Therefore, petitioner Nos.1 & 2 is liable for the amount paid t to the partnership firm being partners of defendant No.1/firm.

13.

On consideration of submissions made on behalf of both sides, in my opinion, no interference in the impugned order is called for.

14.

In his writ petition, the petitioner has made a positive statement in paragraph 7 that petitioner Nos.1 & 2 have retired with effect from 1 April 2015. Such a statement amounts to an admission of the fact that the petitioners were partners of defendant No.1/firm on relevant dates. Therefore, unless the decision of retirement is published under Section 32 (3) of the Indian Partnership Act, 1932 and unless the creditors, retired partners agree to a waiver of the right to recover an existing partner, a retiring partner would continue to be liable for the liability of the partnership for the transaction when the retiring partners were partners of the partnership firm. 15.

On perusal of the relevant dates mentioned above, in my

opinion, petitioners Nos.1 & 2 prima facie appear to be partners on the relevant dates and, therefore, are liable for partnership dues. It is the creditor's choice against whom he wants to proceed, i.e., against the partnership firm or the rest of the partners. 16.

In so far as petitioner Nos.3 & 4 are concerned. Prima facie, they became directors of the partnership firm in 2019. Even otherwise, petitioners Nos.1 & 2 are the companies registered under the provisions of the Companies Act, 2013, and petitioners Nos.3 & 4 are the directors of such companies. It is, therefore, not proper to direct the directors of the company personally to pay the amount of liability of partnership dues of which the company is a partner.

17.

Learned Advocate for the plaintiff, on instructions of the plaintiff who is present in the Court, states that defendants Nos.14 and 15 shall be deleted from the array of defendants in all the suits and Commercial Suit No.26 of 2021, Defendant Nos.14, 15 and 19 shall be deleted from the array of defendants. The statement is accepted.

18.

In view of the aforesaid reasons, no interference in the impugned order is called for.

19.

All the writ petitions are, therefore, dismissed. No costs. (AMIT BORKAR, J.)