Rajasthan High Court – Jodhpur
M/S Makrana Marble Emporium And Ors vs Vinod Kumar And Ors. (2025:Rj-Jd:3993) on 22 January, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:3992]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 87/2014
1. M/s. Makrana Marble Centre, Royal Palace, Opp. Jala Ram
Petrol Pump, Kalawad Road, Rajkot (Gujrat) through Parnter
Smt. Sadhna Indra Bhushan Sharma.
2. Smt. Sadhna Indra Bhushan Sharma W/o Shri Indra
Bhushan Sharma, Partner M/s. Makrana Centre, B-202, Ruchita
Flat, 1/6 Balmukund Plot, Behind Fire Station, Nirmala Convent
Road, Kalawad Road, Rajkot (Gujrat).
3. Smt. Manisha Devendra Kumar Sharma W/o Shri Devendra
Kumar Sharma, Partner M/s. Makrana Marble Centre, C-302,
Shilpam Villa, Opp. I.O.C. Quarters, Behind New Crystal Maul,
Jyoti Nagar, Main Road, Kalawad Road, Rajkot (Gujrat).
----Petitioners
Versus
1. Vinod Kumar Sharma S/o Shri Kishan Gopalji Sharma, aged
52 years, resident of A-B 160, Vivakanand Marg, DCM, Ajmer
Road, Jaipur.
2. M/s Makrana Marble Emporium (a registered partnership
firm), Royal Palace, Opp. Jalaram Petrol Pump, Kalawad Road,
Rajkot (Gujarat), through partner Shri Indra Bhushan Sharma
S/o of Shreekishan Gopal Sharma
3. Indra Bhushan Sharma S/o Shreekishan Gopal Sharma,
aged about 50 years, partner M/s. Makrana Marble
Emporium, Royal Palace, opposite Jalaram Petrol Pump,
Kalawad Road, Rajkot (Gujarat).
4. Devendra Kumar Sharma S/o Shreekishan Gopal Sharma,
aged about 40 years, partner M/s. Makrana Marble
Emporium, Royal Palace, opposite Jalaram Petrol
Pump,Kalawar Road, Rajkot (Gujarat). ----Respondents
AND
S.B. Civil Revision Petition No. 89/2014
1. M/s Makrana Marble Emporium (a registered partnership
firm), Royal Palace, opposite Jalaram Petrol Pump, Kalawar
Road, Rajkot (Gujarat) through its partner Shri Indra Bhushan
Sharma S/o of Shri Kishan Gopal Sharma.
2. Indra Bhushan Sharma S/o Shri Kishan Gopal Sharma,
aged about 50 years, partner of M/s. Makrana Marble
Emporium, Royal Palace, opposite Jalaram Petrol Pump,
Kalawar Road, Rajkot (Gujarat).
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[2025:RJ-JD:3992] (2 of 8) [CR-87/14 & 89/14]
3. Devendra Kumar Sharma S/o Shri Kishan Gopal Sharma,
aged about 40 years, partner of M/s. Makrana Marble
Emporium, Royal Palace, opposite Jalaram Petrol Pump,
Kalawar Road, Rajkot (Gujarat). ----Petitioners
Versus
1. Vinod Kumar Sharma S/o Shri Kishan Gopal Sharma
residing at A-B 160, Vivakanand Marg, DCM, Ajmer Road,
Jaipur.
2. M/s Makrana Marble Centre, Royal Palace, opposite Jalaram
Petrol Pump, Kalawar Road, Rajkot (Gujarat) through its
partner Smt. Sadhna Indra Bhushan Sharma.
3. Smt. Sadhna Indra Bhushan Sharma W/o Shri Indra
Bhushan Sharma, resident of B-202, Ruchita Flats, 1/6
Balmukand Plot, behind Fire Station, Nirmala Convent Road,
Kalawar Road, Rajkot (Gujarat).
4. Smt. Mainsha Devendra Kumar Sharma W/o Shri Deverdra
Kumar Sharma, partner Makrana Marble Centre, resident of C-
302, Shilpam Villa, opposite IOC quarters, behind new Crystal
Mall, Jyoti Nagar, Main Road Kalawar Road, Rajkot (Gujarat).
----Respondents
For Petitioner(s) : Mr. Ranjeet Joshi, Mr. Vishwajeet
Joshi & Mr. Kapil Bissa (in CR
No.87/14)
Mr. Muktesh Maheshwari with
Mr. Gourav Choudhary(in CR
No.89/14)
For Respondent(s) : Mr. R.K. Thanvi, Sr. Adv. assisted by
Mr. Narendra Thanvi & Mr. Mahendra
Thanvi
HON'BLE MS. JUSTICE REKHA BORANA
Order
22/01/2025
1. The present revision petitions arise out of the same order
impugned and hence, were heard together and are being decided
by this common order.
2. The present revision petitions have been preferred against
the order impugned dated 28.02.2014 passed by the Additional
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[2025:RJ-JD:3992] (3 of 8) [CR-87/14 & 89/14]
District Judge, Parbatsar, District Nagaur in Civil Original Suit
No.57/2012 whereby two applications under Order 7 Rule 11, CPC
as preferred on behalf of defendant Nos.1 to 3 & defendant Nos.4
to 6 respectively, were dismissed.
3. The facts are that a suit for dissolution, rendition of
accounts, recovery and permanent injunction was filed by plaintiff
Vinod Kumar before the Court of Additional District Judge,
Parbatsar. In the said suit two applications under Order 7 Rule 11,
CPC were filed by defendant Nos.1 to 3 and defendant Nos.4 to 6
respectively.
4. The grounds raised by defendant Nos.1 to 3 in their
applications was primarily that the Court at Parbatsar did not have
the territorial jurisdiction to entertain the suit in question as the
registered office of the partnership firm was at Rajkot. Further, no
cause of action arose to the plaintiff at Parbatsar and hence, the
Court at Parbatsar had no jurisdiction to entertain the suit in
question.
5. Defendants No.4 to 6, while raising the above ground of
territorial jurisdiction also raised an additional ground to the effect
that the suit in question was barred by law in terms of Section 69
of the Indian Partnership Act, 1932 (hereinafter referred to as ‘the
Act of 1932’). It was averred that the plaintiff was not a partner in
defendant No.4-firm and hence, in terms of Section 69(1) of the
Act of 1932, had no right to sue defendant No.4-firm and its
partners.
6. The learned Trial Court proceeded on to reject both the
applications with an observation that there was a specific clause in
the partnership deed in question reflecting the administrative
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office of the firm in question to be at Parbatsar. The Court further
observed that the partnership deed dated 01.04.1994 was an
admitted document and hence, the specific clause of the said deed
wherein the administrative office of the firm was mentioned to be
at Parbatsar, would also be termed to be admitted.
7. The Court further observed that even otherwise, while
deciding the application under Order VII Rule 11, CPC the Court is
required only to consider the averments as made in the plaint and
the documents as annexed with the plaint. As per the averments
of the plaint, the firm had an administrative office at Parbatsar
and even the income tax returns of the firm were filed at
Parbatsar till the year 2014. The Court therefore observed that
prima facie the plaint could not be rejected on the ground of lack
of jurisdiction under Order VII Rule 11, CPC.
8. In the specific opinion of this Court, the finding as recorded
by the learned Trial Court qua territorial jurisdiction is totally in
consonance with the documents as annexed with the plaint as well
as the law governing the issue. Clause 2 of the partnership deed
dated 01.04.1994 read as under:
^^Hkkxhnkjh /ka/ks dh txg%&
;g Hkkxhnkjh /ka/kk jktdksV esa QkykokM+ jksM ij jks;y iSysl uke dh
fcYMhax esa “kq: fd;k x;k gS] vkSj QSDVªh blh uke ls ih- 12 jksM+ ua- 9 th-
vkbZ-Mh-lh- bUMLVªh;y ,LVsV yksf/kdk esa j[kh xbZ gSA /ka/ks dh ,Mfefu’Vªs”ku
vkfQl ijcrlj] ftyk % ukxksj % jktLFkku % esa jgsxhA Hkkxhnkjksa esa le>ksrk
gksus ij vkSj ,d nwljs dh lgefr ls /ka/ks dh txg cny ldrs gS vkSj fdlh
Hkh txg ij “kk[kk cuk ldrs gSA^^
9. A bare perusal of the above clause reflects that it was agreed
between the parties that the administrative office of the business
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of the firm would be at Parbatsar, District Nagaur. The effect and
application of the above clause to the present suit in question
would definitely be a subject matter for an issue to be framed and
decided by the Court. Definitely, the plaint cannot be rejected on
the count of lack of jurisdiction.
10. So far as judgment in Subodh Kumar Gupta V. Shrikant
Gupta & Ors.:1993 (2) SCC 1 as relied upon by learned counsel
for petitioners is concerned, therein the averments made in plaint
were ‘vague’ and nothing was placed on record to establish that
branch office of partnership was functioning at Chandigarh, further
no cause of action arose at Chandigarh.
11. Coming on to the ground as raised by defendant Nos.4 to 6
that the suit in question could not be laid by the plaintiff against
defendant Nos.4 to 6, he not being a partner in defendant No.4-
firm, this Court is of the clear opinion that the bar of Section 69(1)
& (2) of the Act of 1932 would not apply to the present suit in
question.
12. Section 69 of the Act of 1932 reads as under :
“69. Effect of non-registration.–(1) No suit to
enforce a right arising from a contract or conferred by
this Act shall be instituted in any Court by or on behalf
of any person suing as a partner in a firm against the
firm or any person alleged to be or to have been a
partner in the firm unless the firm is registered and the
person suing is or has been shown in the Register of
Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract
shall be instituted in any Court by or on behalf of a firm
against any third party unless the firm is registered and(Downloaded on 22/01/2025 at 09:55:24 PM)
[2025:RJ-JD:3992] (6 of 8) [CR-87/14 & 89/14]the persons suing are or have been shown in the
Register of Firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall
apply also to a claim of set-off or other proceeding to
enforce a right arising from a contract, but shall not
affect–
(a) the enforcement of any right to sue for the
dissolution of a firm or for accounts of a dissolved firm,
or any right or power to realise the property of a
dissolved firm; or
(b) the powers of an official assignee, receiver or Court
under the Presidency-towns Insolvency Act, 1909 (3 of
1909), or the Provincial Insolvency Act, 1920 (5 of
1920), to realise the property of an insolvent partner.
(4) This section shall not apply–
(a) to firms or to partners in firms which have no place
of business in [the territories to which this Act
extends], or whose places of business in [the said
territories] are situated in areas to which, by
notification under [Section 56], the Chapter does not
apply, or
(b) to any suit or claim or set-off not exceeding one
hundred rupees in value which, in the Presidency-
towns, is not of a kind specified in Section 19 of the
Presidency Small Cause Courts Act, 1882 (15 of 1882),
or, outside the Presidency-towns, is not of a kind
specified in the Second Schedule to the Provincial Small
Cause Courts Act, 1887 (9 of 1887), or to any
proceeding in execution or other proceeding incidental
to or arising from any such suit or claim.”
13. A bare perusal of the above provision reflects that as per
Section 69(3), the bar of Section 69(1) & (2) would not apply to
the suit wherein the enforcement of any right for the dissolution of
a firm or for accounts of a dissolved firm, or any right or power to
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[2025:RJ-JD:3992] (7 of 8) [CR-87/14 & 89/14]
realise the property of a dissolved firm, is prayed for. The suit in
question is admittedly for dissolution of the firm, rendition of
accounts of the firm and for realisation of the property of the firm.
The exception as carved out in Section 69(3) of the Act of 1932
would therefore, apply to the suit in question and the bar of
Section 69(1) & (2) would not apply.
14. The Hon’ble Apex Court while analysing Section 69 of the Act
of 1932 in the case of Umesh Goel vs. Himachal Pradesh
Cooperative Group Housing Society Ltd.; (2016) 11 SCC
313 observed as under :
“16. Keeping the above outcome of the legal position
that can be derived from a reading of Sub-sections (1),
(2) and (3) of Section 69 in mind we can draw further
conclusions by making specific reference to clauses (a)
and (b) of Sub-section (3) as well as the exceptions set
out in clauses (a) and (b) of Sub-section (4) as well.
When under Sub-section (3) which also relates to a ban
concerning “other proceedings”, the law makers
wanted to specifically exclude from such ban such of
those proceedings which are also likely to arise in a
suit, but yet the imposition of ban of an unregistered
firm need not be imposed. Keeping the said intent of
the law makers in mind, when we read clauses (a) and
(b) of Sub-section (3), it can be understood that even
though such other proceedings may be for the
enforcement of any right to sue but yet if it is for the
dissolution of a firm or for accounts of a dissolved firm
or any right or power to realize the property of a
dissolved firm, the same can be worked out by way of
a suit in a Court or by way of other proceedings in that
suit and the same will not be affected by the ban
imposed under Sub-section (3). Similarly, any steps
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initiated at the instance of an official assignee, a
receiver or Court under the Presidency-Towns
Insolvency Act, 1909 (3 of 1909) or the Provincial
Insolvency Act, 1920 (5 of 1920) to realize the
property of an insolvent partner in a pending suit of a
Court also stand excluded from the ban imposed under
Sub-section (3). The specific exclusions contained in
Clauses (a) and (b) of Sub-section (3), therefore,
makes the position clear to the effect that even though
such proceedings may fall under the expression “other
proceedings” and may be intrinsically connected with a
suit in a Court, yet the ban would not operate against
such proceedings.”
15. In view of the above ratio and in view of the above
observations and analysis, this Court does not find any ground to
interfere with the order impugned dated 28.02.2014 passed by
the Additional District Judge, Parbatsar, District Nagaur and the
present revision petitions are hence, dismissed.
16. Stay petitions and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
421&422/-abhishek/praveen
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