R.P.SONDURBALDOTA,J. - (1.) ALL the counsel agree that the appeal be disposed off finally at the stage of admission. Hence, we have heard the submissions in final hearing.
(2.) THIS appeal is preferred against the order dated 6th May, 2005 passed by the learned Single Judge dismissing the suit filed by the appellant by upholding preliminary objections as regards its maintainability. The two preliminary issues decided by the impugned order are as follows :- (i) Whether the suit is maintainable in view of Section 69 of the Indian Partnership Act, 1932? (ii) Whether the suit is maintainable in as much as the plaintiff has filed the present suit No.2812 of 2001 without withdrawing his earlier Suit No.1991 of 2000 for the same cause of action? The pleadings in which the above issues arise, stated in the necessary details are as under : Vide partnership agreement dated 30th April, 1992, the suit firm i.e. Hetali Construction Company was constituted, its partners being the appellant, Deepak Pandya-Respondent No.2, Sukanya Holdings Pvt. Ltd., respondent No.1 and one Ms. Jaikirti Mehta. Respondent Nos.4, 5 and 7 i.e. Gupta Brothers own, control and manage Sukanya Holdings Pvt. Ltd. The firm applied for its registration by submitting an application form to the Registrar of Firms on 11th May, 1992. At that time, the share in the profit and loss of the partnership firm of the appellant and his brother-respondent No.2 was of 25% each, that of the company was 40% and of Jaikriti Mehta was 10%. Ms.Jaikirti Mehta, retired from the partnership firm on 11th March, 1993 and her 10% share came to be distributed between the remaining parties, increasing the share of appellant and respondent no.2 to 27.5% each and that of the company to 45%. The business of the firm was to develop a plot of land situated at Santacruz(West), Bombay by constructing thereon building consisting of ground plus seven floors. There are serious disputes between the partners as regards the project of building construction and sale of flats therein. However, in our opinion it is not necessary to dilate over these disputes considering the limited scope of the present appeal. When disputes arose between the partners as regards the business of the partnership firm, the appellant filed Suit No.1991 of 2000 (hereinafter referred to as "first suit") in this court for dissolution of the firm and accounts.
(3.) BY the ad-interim order dated 11th May, 2000, the Court Receiver, High Court, Bombay was appointed as a Receiver of all the assets and properties of the suit firm, including the books of accounts. But after filing of the suit, it was realised by the appellant that although an application had been made in the year 1992 to the Registrar of Firms for registration of the suit firm, the same had not been registered on account of some formal requirements. He, therefore, pursued the application for registration of the firm and the firm came to be registered by the Registrar of Firms on 30th May, 2000. Thereafter, on 14th August, 2001, the appellant filed the suit herein i.e. Suit No.2812 of 2001 (hereinafter referred to as "second suit") for the same reliefs as in the first suit. On 23rd August, 2001, he applied for ad-interim order of appointing the Court Receiver, High Court, Bombay as receiver of all the assets and properties of the suit firm after giving due notice to the respondents. By the order passed on that date, the Court Receiver, High Court, Bombay was once again appointed as receiver of all the assets and properties of the suit firm. On the same date, the appellant withdrew the first suit.;