LexSHIV DEVELOPERS THROUGH ITS PARTNER SUNILBHAI SOMABHAI AJMERI versus AKSHARAY DEVELOPERS & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
B
C
D
E
F
G
H
135
[2022] 8 S.C.R. 135
135
SHIV DEVELOPERS THROUGH ITS PARTNER SUNILBHAI
SOMABHAI AJMERI
v.
AKSHARAY DEVELOPERS & ORS.
(Civil Appeal No. 785 of 2022)
JANUARY 31, 2022
[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
Partnership Act, 1932 – s.69(2) – Bar under – When not
attracted – Held: To attract the bar of s.69(2), the contract in
question must be the one entered into by firm with the third-party
defendant and must also be the one entered into by the plaintiff
firm in the course of its business dealings – s.69(2) is not a bar to a
suit filed by an unregistered firm, if the same is for enforcement of a
statutory right or a common law right – In the present case, the
transaction in question was not the one entered into by the appellant-
plaintiff, an unregistered partnership firm during the course of its
business (i.e., of building construction), and it was an independent
transaction of sale, of the firm’s share in the suit property, to the
contesting defendants – Thus, the bar of s.69(2) is not attracted in
relation to the said sale transaction – Moreover, the subject suit
cannot be said to be the one for enforcement of right arising from a
contract, rather the subject suit is clearly the one where the plaintiff
seeks common law remedies with the allegations of fraud and
misrepresentation as also of the statutory rights of injunction and
declaration in terms of the provisions of the Specific Relief Act,
1963 as also the Transfer of Property Act, 1882 (while alleging
want of the sale consideration) – Therefore, the bar of s.69(2) does
not apply to the present case – Trial Court rightly appreciated the
facts of the case and rejected the baseless application moved by the
contesting respondents – Impugned order of High Court set aside –
Trial Court to proceed with trial of the suit in accordance with law –
Specific Relief Act, 1963 – Transfer of Property Act, 1882.
Umesh Goel v. Himachal Pradesh Co-operative Group
Housing Society Ltd: (2016) 11 SCC 313 : [2016] 6
SCR 703; Farooq v. Sandhya Anthraper Kurishingal
and Ors. (2018) 12 SCC 580 – held inapplicable.
A
B
C
D
E
F
G
H
136
SUPREME COURT REPORTS
[2022] 8 S.C.R.
Haldiram Bhujiawala and Anr. v. Anand Kumar Deepak
Kumar and Anr: (2000) 3 SCC 250 : [2000] 1 SCR
1247; Raptakos Brett & Co. Ltd. v. Ganesh
Property (1998) 7 SCC 184 : [1998] 1 Suppl. SCR 485;
Purushottam and Anr. v. Shivraj Fine Art Litho Works
and Ors. (2007) 15 SCC 58 : [2006] 8 Suppl. SCR 524
– relied on.
Case Law Reference
[2016] 6 SCR 703
held inapplicable
Para 12.1
(2018) 12 SCC 580
held inapplicable
Para 12.1
[2000] 1 SCR 1247
relied on
Para 11
[1998] 1 Suppl. SCR 485
relied on
Para 15
[2006] 8 Suppl. SCR 524
relied on
Para 9.3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 785 of
2022.
From the Judgment and Order dated 15.02.2018 of the High Court
of Gujarat at Ahmedabad in Civil Revision Application No. 241 of 2017.
Ms. Shreya Jain, Gaurav Tanwar, Sachin Mittal, Advs. for the
Appellant.
Kruthin Joshi, Rajesh Mahale, Purvish Jitendra Malkan, Jitendra
Malkan, Ms. Dharita P. Malkan, Ms. Deepa Gorasia, Alok Kumar, Ms.
Nandini Chhabra, Ms. Bhavna Sarkar, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
The relevant factual matrix and background.....................................2*
The application seeking rejection of plaint: divergent views of the
Trial Court and the High Court.........................................................6*
Rival Submissions...........................................................................12*
Section 69 of the Act of 1932 and the relevant principles...................15*
Application of the relevant principles to the subject suit....................21*
Conclusion....................................................................................23*
* Ed. Note: Pagination is as per the original judgment.
A
B
C
D
E
F
G
H
137
Leave granted.
2. This appeal, by the plaintiff of a suit for declaration and
injunction, is directed against the judgment and order dated 15.02.2018,
as passed by the High Court of Gujarat1, in Civil Revision Application
No. 241 of 2017, whereby the High Court has allowed the revision
application filed by the contesting defendants (respondent Nos. 1 to 3
herein) and has reversed the order dated 07.04.2017, as passed by the
Court of 9th Additional Senior Civil Judge, Vadodara2 in Special Civil Suit
No. 333 of 2015.
2.1. By the said order dated 07.04.2017, the Trial Court had
rejected thExcerpt shown. Read the full judgment & AI analysis in Lexace.