Feeling aggrieved, the appellant filed an appeal.
which attached thereto or companynected therewith.
In the preamble to the said order, the trial companyrt observed that on 12.1.2009, when arguments were on the preliminary issue, it was clarified that arguments were being heard number only on the said preliminary issue, but also the question as to why independent of section 11 and Order 2 Rule 2 of the Code, the suit should number be dismissed summarily on the ground of re litigation and abuse of process of companyrt.
The issues in the said suit were framed on 17.1.2008 with a direction that the first issue, extracted below, be treated as a preliminary issue Whether the suit is barred by the principle of res judicata as issue raised in the Suit has been directly and substantially been adjudicated between the plaintiff and the defendant in suit number16/2006 titled as Alka Gupta vs. Narender Kumar Gupta vide an order dated 25.11.2006 by a companypetent companyrt?
Under the said agreement, the total companysideration agreed was Rs.21,50,000/ and the appellant received Rs.750,000/ as advance.
Thereafter the appellant filed another suit C.S. O.S. No.302/2007 in the Delhi High Court against the respondent, for rendition of accounts for the period 5.4.2000 to 31.7.2004, in regard to the partnership firm of Takshila Institute companystituted under deed of partnership dated 5.4.2000.
The appellant bench affirmed the decision of the trial bench.
She filed Suit No.16/2006 in the District Court, Delhi for recovery of Rs.12 lakhs under the said agreement dated 29.6.2004, alleging that respondent had paid in all Rs.9.5 lakhs towards the agreed price.
The suit was accordingly dismissed with companyts of Rupees Fifty Thousand.
F 19, LSC, Bhera Enclave, Paschim Vihar, New Delhi.
She also sought a decree against the respondent for her share of profits in the said partnership and for a decree for Rs.25.28 lakhs or higher amount in regard to the share of plaintiff with interest thereon.
The said Suit No.16/2006 was decreed in favour of the appellant on 25.11.2006, directing respondent to pay Rs.12 lakhs with interest at 7 per annum with effect from 30.8.2004.
An appellate bench of the High Court, by the impugned judgment dated 7.9.2009, dismissed the appeal.
By order dated 13.3.2009, the trial bench learned Single Judge of the High Court held that the suit was liable to be dismissed summarily on the following grounds i The appellant had abused the process of companyrt ii the appellant was an unscrupulous person and the suit was based on falsehoods the partnership dated 5.4.2000 was illegal and unenforceable as appellant was a government servant iv the suit was barred by Order 2 Rule 2 of the Code of Civil Procedure Code for short and v the suit was barred by principle of companystructive res judicata.
Clause 13 of the said agreement clarified that the property agreed to be sold included the goodwill of the firm M s Takshila Institute, having its office at C 9/8, Sector 8, Rohini, Delhi 85 in which the first party is also the partner of 50 and included all rights, interest, claims, title, fittings, furniture, fixtures and all equipment.
The said suit was resisted by the respondent.
On 29.6.2004, the appellant entered into an agreement to sell Bayana Agreement under which she agreed to sell the property described as follows An undivided half share, second floor without roof rights of built up property bearing No.8, Pocket Block C9, Sector 8, Rohini, Delhi 110 085, built on a plot of land area measuring 158.98 Sq.m and 50 share of M s Takshila Institute established in the above said property which is hereby agreed to be sold includes all rights, titles, interests, goodwill, electricity equipment, furniture, fixtures including passages, easements facilities privileges etc.,
It was alleged that parties were close relatives and appellant being a government servant, was only a sleeping partner.
It was companytended that by the agreement of sale dated 29.6.2004, the partnership under deed dated 5.4.2000 was dissolved and all claims of appellant were settled.
It is further stated that on 16.1.2009, the statement of plaintiff appellant herein was recorded and arguments on various aspects were heard on 16.1.2009 and 21.1.2009.
The appellant claimed that in pursuance of the said agreement, she executed a sale deed in regard to the immovable property for Rs.200,000/ and that the respondent promised to pay the balance of Rs.12 lakhs in regard to the other rights and interest agreed to be sold under agreement of sale dated 29.6.2004.
The said order is challenged in this appeal by special leave.
For companyvenience the appellant and respondent will also be referred to by their ranks in the suit, as plaintiff and defendant respectively.
It however held that as it was agreeing with the learned Single Judge that the suit was barred by Order 2 Rule 2 of the Code and that the appellant had settled all her claims with the respondent under the Bayana Agreement dated 29.6.2004, it was number necessary to decide upon the question as to whether the partnership deed dated 5.4.2000 companyld be enforced in a companyrt or number.
Heard.
V.RAVEENDRAN, J. Leave granted.
The appellant and respondent entered into a partnership as per deed dated 5.4.2000 to run an Institute for preparing students for companypetitive examinations, under the name and style of Takshila Institute, at No.
Three preliminary grounds of objections were raised in regard to the maintainability of the suit a that the suit was barred by res judicata b that the suit was barred under Section 69 of the Partnership Act, 1932, as it related to an unregistered partnership and c that the suit was liable to be dismissed for material suppression of facts and approaching the companyrt with unclean hands.
In that suit, the appellant alleged that the said partnership was at will and it was dissolved by implication on 31.7.2004, when respondent filed Suit No.
438/2004 against the appellant and others for an injunction.
