GOVINDBHAI APPAJI BHATE Vs. ARUNA GAJANAN BHATE

JUDGEMENT

(1.) This is an appeal by the original plaintiffs from an order passed by Mr. Kirtikar, Judge of the Bombay City Civil Court, on June 10, 1971, making the defendants' Notice of motion dated May 28, 1971 absolute in terms of prayers (a) and (b) thereof, and further directing the Registrar to make disbursements towards item Nos. 1, 2 and 3 of Annexure B to the notice of motion. It may be mentioned that the learned Judge directed the Registrar to retain the balance of the amount and adjourned the notice of motion in respect of prayer (b), in so far as it concerned item Nos. 4 to 9 of the said Annexure B, to a later date. The rest of the motion thereafter came up before Judge, Guttal of the same Court, who, by his order dated Jan. 21, 1972, directed disbursements to be made by the Registrar out of the amount lying with him towords the claims mentioned in item Nos. 4, 5, 6, 7, 8 and 9 of Annexure B to the notice of motion. It may, however, be mentioned that disbursements have actually been made by the Registrar only towards item Nos. 4, 5 and part of 6 of the said Annexure B and the remaining item remained unpaid because the amount in his hands was insufficient to pay the same.

(2.) The short facts necessary for the purpose of this appeal are that according to the plaintiffs, they carried on business in partnership jointly with the defendants in the name and style of the. New Swastik Land Development Corporation under a partnership deed dated Oct. 15, 1963, a copy of which is Annexure A to the plaint. In the plaint, it is submitted that the said partnership is a partnership at will and that the same has been dissolved as from Aug. 12, 1970, being the date mentioned in the plaintiffs' advocates letter of that date. The plaintiffs have, therefore, filed the present suit for a declaration that the said firm stands dissolved as from that date, that it be declared that the plaintiffs have 32 per cent, share in the profits and assets of the said firm, and for other ancillary reliefs which are usual in a partnership action. After the suit was filed, the defendants took out the notice of motion, out of which the present appeal arises, in which they sought several reliefs. The first two of those reliefs, which were granted by the order under appeal were that the plaintiffs be directed to execute, along with the defendants, a conveyance and all other documents that may be required to complete the sales of the properties in favour of the President of India and in favour of Sreyas Land Development Corporation, and that in the event of the plaintiffs' failing to sign those documents the Registrar of the City Civil Court, Bombay, be authorised to direct an officer to sign the same. One of the other reliefs which was partially granted by the order under appeal was that out of the amount in his hands, the Registrar be directed to make disbursements towards the items specified in Annexure B to the notice of motion. It was on that notice of motion that the order under appeal was passed by Judge, Kirtikar on June 10, 1971 in terms already stated above.

(3.) It has been contended by Mr. Paranjpe on behalf of the appellants-plaintiffs that the learned Judge had no jurisdiction to direct the sale of some of the partnership properties pending the disposal of the suit, and that the order is erroneous even on merits. As against that, it was urged by Mr. Parsurampuria on behalf of the defendants, that the plaintiffs are not entitled to challenge the order of Judge, Kirtikar by reason of their acquiescence and waiver and by reason of their being estopped from doing so, in so far as they have not appealed from the subsequent order passed on the same motion by Judge, Guttal and also in so far as they had actually moved the Receiver to take possession of some of the land that came to the said firm under one of the conveyances in question. I am affraid, there is no substance in this contention of Mr. Parsurampuria for the simple reason that once the plaintiffs had filed the present appeal, which they did on June 15, 1971, there could be no question of their having acquiesced in any thing, or being estopped by reason of their conduct, as Mr. Parsurampuria sougth to contend. Everything else has happened after the filing of the present appeal on the said date to the knowledge of everybody concerned. It may be mentioned that after the appeal was filed, stay was granted by this Court on July 7, 1971, but was vacated on Sept. 1, 1971 and, immediately, almost in an indecent hurry, all the four conveyances were executed on the very next day. If the defendants have chosen to act in the manner in which they did in spite of pendency of the present appeal, it hardly lies in their mouth to say that they have been misled by any representation or by acquiescence or waiver on the part of the plaintiffs in the present case. This contention of Mr. Parsurampuria must, therefore, stand rejected.