At, High Court of Judicature at Bombay
By, THE HON'BLE MR. JUSTICE F.I. REBELLO
Mr. B.S Chandanani, for Plaintiff. Mr. M.S Bhandari with Ms. Suman Jain i/b A.R. Shaikh, for Defendants 7 to 9.
The Plaintiff has taken out Summons for Judgment against defendants 7, 8 and 9. The defendants have filed their affidavit in reply. They have raised various contentions. One of the contention is that on the date the Bill of Exchange was signed by defendant No.4 he was not a partner of the firm as he had retired from the firm from 15th May, 1983 pursuant to the Deed of Retirement dated 16th May, 1983. The fact that the defendant No.4 has retired from the partnership has been recorded in the Register maintained by the Registrar of Firms. Prima facie, therefore, the contesting defendants have been able to show that the defendant No.4 could not have bound the firm on the date he signed the various bills of exchanges. There are other defences pertaining to limitation and failure by the plaintiff to take out Summons for Judgment within six months of the defendants filing their appearance.
2.In view of the fact that the contesting defendants have made out a strong prima facie case that they are not liable for the acts of the defendant No.4 and which raise serious triable issues in the suit the defendants are entitled to unconditional leave to defend. In the light of that the following order:
(1)Defendant Nos. 7, 8 and 9 are entitled for unconditional leave to defend the suit. Suit is transferred to commercial cause. The defendant Nos. 7, 8 and 9 to file written statement within 12 weeks from today. The parties will file affidavit of documents within eight weeks thereafter. Inspection and d
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iscovery will be completed within eight weeks thereafter. (2)In view of the fact that the suit is of the year 1987 expedite. Certified copy expedited.