$~21
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IN THE
HIGH COURT OF DELHI AT NEW DELHI
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Decided on: 25.02.2020
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CM(M) 1387/2017
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NADEEM
MAJID OOMERBHOY
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.....
Petitioner
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Through:
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Mr.
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Sudhir
Nandrajog, Senior
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Advocate with
Mr. Vikram Mehta,
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Ms. Rishika
Raha and Ms.
Pallavi
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Mohan,
Advs.
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versus
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KIRORI
MAL KASHIRAM MARKETING & AGENCIES PVT.
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LTD
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.....
Respondent
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Through:
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Mr.
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S.K.
Bansal and Mr.
Ajay
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Amitabh
Suman, Advs.
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CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI
WAZIRI, J. (Oral)
CM APPL.
44319/2017 (Exemption)
1.
Allowed, subject to all just exceptions.
2.
The application stands
disposed-off. CM(M) 1387/2017
3.
This petition impugns the order
dated 04.09.2017 passed by the learned Trial Court in Suit No. 17872/2016,
declining the petitioner’s
request
to be impleaded as a plaintiff in the suit. The petitioner is the legal
heir of
Mr. Majid Ahmed Oomerbhoy, one of the partners of M/s Ahmed
Oomerbhoy.
The partnership being at will was dissolved by mutual wish of
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Signature
Not Verified
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CM(M)
No. 1387/2017
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Page 1 of 4
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Digitally
signed By:KAMLESH
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KUMAR
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Signing
Date:28.02.2020
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13:04:53
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the
parties. In a suit being Suit No. 4913/2000 pending before the High
Court of
Bombay at Mumbai, a Receiver had been appointed by order dated
06.12.2000. However,
in default of the Receiver acting as per expectations
of the
persons holding or claiming an interest in the shares of the partners,
the
present petitioner sought appropriate directions from the Bombay High
Court. By
order dated 15.03.2013, the Bombay High Court had permitted
the
petitioner to pursue the interest of the partnership firm. It has reasoned as
under:-
“1. Defendant No. 1 in the suit desired to file and prosecute two suits
in Delhi. Since the Court Receiver has been appointed, the Court Receiver was
to prosecute the suits on behalf of defendant No.1. Defendant No.1 was to put
the Receiver in funds. Defendant No.1 has not put the Receiver any funds.
Counsel on behalf of defendant No.1 states that defendant No.1 has no funds.
This aspect has been stated to the Court Receiver in the letter of the attorney
of defendant No.1 dated 25th February, 2013. Defendant No.1 has sought to be impleaded as the
plaintiff in those suits. Defendant No.1 does not desire to prosecute the suit
for want of funds. The plaintiff in this suit may take such steps as he desires
in that suit.
2.
The plaintiff shall have to pay the fees of the prosecution of the suit
by himself henceforth. It is clarified that the Court Receiver shall not
prosecute that suit. The reimbursement, if at all, to both the parties shall be
considered whilst taking accounts.”
4.
The impugned order was passed in
a Suit No. 17872/2016 filed by the firm which is in the process of dissolution.
Since no interest holder in the firm has come forward to pursue the interest of
the firm, the petitioner seeks to protect the said interest, in terms of the
aforesaid order of the Bombay High Court. The endeavour is opposed by the
learned counsel for the
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Signature
Not Verified
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CM(M)
No. 1387/2017
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Page 2 of 4
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Digitally
signed By:KAMLESH
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KUMAR
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Signing
Date:28.02.2020
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13:04:53
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respondent
on the ground that the petitioner is neither the partner nor a
necessary
party and at best he can prosecute the suit under Order XXX Rule
4 CPC,
which reads as under:-
“4.
Rights of suit on death of partner.—(1) Notwithstanding anything contained in
section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more
persons may sue or be sued in the name of a firm under the foregoing provisions
and any of such persons dies, whether before the institution or during the
pendency of any suit, it shall not be necessary to join the legal
representative of the deceased as a party to the suit.
(2)
Nothing in sub-rule (1) shall limit or otherwise effect any right which
the legal representative of the deceased may have—
(a)
to apply
to be made a party to the suit, or
(b)
to
enforce any claim against the survivor or survivors.”
5.
However, the present petitioner
has been permitted by the Bombay High Court to pursue the interest of the
partnership firm in lieu of the Court Receiver. The petitioner seeks to protect
the interest of the partners in the dissolved firm. The Court is of the view
that insofar as the interest of all the parties are sought to be protected,
especially in lieu of the Court Receiver, who was to be in default of
safeguarding the interest of all the parties, the petitioner would be a
necessary party to be impleaded as a plaintiff. Denying the petitioner an opportunity
to pursue the case on behalf of all partners would render them remediless and
would cause irreparable injury to their interests. In the circumstances, the
impugned order is set aside. The petitioner is impleaded as plaintiff no. 2 in
the suit. Amended Memo of Parties be filed before the learned Trial Court.
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Signature
Not Verified
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CM(M)
No. 1387/2017
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Page 3 of 4
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Digitally
signed By:KAMLESH
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KUMAR
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Signing
Date:28.02.2020
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13:04:53
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6.
The learned counsels for the
parties submit that the case is now listed before the Trial Court on
11.03.2020. They say that the parties shall appear before the learned Trial
Court on the said date and shall assist it prompt in disposal of the suit.
7.
The petition stands allowed and disposed-off in the
above terms.
NAJMI WAZIRI, J
FEBRUARY 25, 2020
RW
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Signature
Not Verified
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CM(M)
No. 1387/2017
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Page 4 of 4
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Digitally
signed By:KAMLESH
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KUMAR
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Signing
Date:28.02.2020
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13:04:53
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