AI Structured Summary
Not yet generated for this judgment
Judgment
K.A. Puj, J.—The petitioner - ori. plaintiff has filed this petition under Article 227 of the Constitution of India challenging the order passed by the learned City Civil Judge, Ahmedabad, on 19.2.2004 below Summons for Judgment in Summary Suit No. 4029 of 2001 whereby unconditional leave was granted to the original defendant/present respondent. While granting unconditional leave the learned City Civil Judge has observed that the plaintiff has not produced any documentary evidence in its rejoinder affidavit to show that the firm is a registered partnership firm. Only on this solitary ground the learned Judge has observed that the suit is not maintainable and hence unconditional leave to defend is granted.
Notice was issued by this Court on 7.5.2004 and Rule was issued on 20.11.2004.
Heard Mr. R.J. Goswami, learned advocate appearing for the petitioner and Mr. S.M. Shah, learned advocate appearing for the respondents.
It is the case of the petitioner that the petitioner is a registered partnership firm registered under the Indian Partnership Act. The Registrar of firm issued registration certificate dated 16.2.1999. The petitioner firm supplied goods to the respondent No. 1 Company. The value of the goods delivered to the respondent No. 1 Company was to the extent of Rs. 23,37,955/-. The respondent Company has paid Rs. 6,63,107/- for the goods sold and delivered by the petitioner firm and the balance amount of Rs. 16,74,848/- was not paid by the respondent Company.
It is also the case of the petitioner that the respondent Company issued a cheque bearing No. 781981 for Rs. 16,74,848/- on 1.9.1999. On presentation of the said cheque the same was dishonoured. The petitioner has also filed a criminal complaint u/s 138 of the Negotiable Instrument Act before the Metropolitan Magistrate.
The petitioner thereafter filed Summary Suit No. 4029 of 2001 before City Civil Court, Ahmedabad on 28.8.2001, inter alia, praying for a decree for the amount of Rs. 24,45,278/- being the principal amount of Rs. 16,74,848/- and interest amount of Rs. 7,70,430/-. Initially the exparte decree was passed by the City Civil Court on 27.9.2001. On filing an application by the respondent under Order 37 Rule 4 of C.P.C. the decree was set aside. Thereafter, the respondent has filed leave to defend application before the trial Court raising various contentions, inter alia that the suit is not maintainable in view of the fact that the suit is filed by the partnership firm which is not registered. Accepting this proposition the trial Court has passed the impugned order granting unconditional leave to the respondent.
Mr. R.J. Goswami, learned advocate appearing for the petitioner has submitted that in fact the firm is a registered partnership firm and the certificate of registration was produced before the trial Court on the date when the order was passed, however the same is not taken into consideration. This certificate of registration is produced alongwith the petition at Annexure-A to the petition. Reading of this certificate makes it clear that the firm was registered on 16.2.1999. It is, therefore, clear that on the date when the suit is filed the firm was registered partnership firm.
Without going into the controversy as to whether the certificate was produced before the trial Court and if produced, why it was not considered by the trial, this Court is of the view that since the suit is of 2001 and more than eight years have passed, instead of setting aside the impugned order and remanding the matter to the trial Court for deciding the Summons for Judgment afresh after considering the certificate of registration and after considering the case of the petitioner on merits, interest of justice would better be served if the trial Court is directed to dispose of the suit within a time bound programme and after considering the certificate of registration which is produced before this Court and which may also be produced before the trial Court.
In the above view of the matter, the finding given by the trial Court that, the suit is not maintainable on the ground that the firm is not registered partnership firm is hereby set aside and though the Court is not disturbing the order of the trial Court granting unconditional leave, directs the trial Court to dispose of the main suit as expeditiously as possible, preferably within the period of six months from the date of receipt of writ or from the date of receipt of certified copy of this order, whichever is earlier. While disposing of the suit the trial Court will take into account all the contentions of the parties that may be raised with regard to the registration of the firm on the basis of certificate which may be produced before this Court. The trial Court will also adjudicate upon the claim of the petitioners keeping in mind the evidence, oral as well as documentary, led before it.
With the above directions, this petition is accordingly disposed off. Rule is made absolute to the above extent without any order as to costs.