Query civil suit
Querist :
Anonymous
(Querist) 08 July 2010
This query is : Resolved
Dear Seniors
The facts of the case are
A, is the proposed housing society through it’s 13 members have purchased the land. The proposed housing society had entrusted the development rights of the said land in favour of B, who is the partnership firm and accordingly executed the necessary Development Agreement and Power of Attorney in favour of firm. There are four partners in a firm. Partnership is at will. All are working partners. Partnership is still in force.
Recently one partner C, without consent of other partners had colluded and joined the hands with owners and executed the Deed of Cancellation with proposed housing society through it’s 13 members (the owners).
Now I want to file the suit for following reliefs
1. Declaring the said Cancellation Deed as illegal and void.
2. Declaring the said Development Agreement in force.
3. Specific performance of said Development Agreement.
4. Injunction.
If above facts are sufficient. Then now, the issue is that although the suit is required to be filed by rest all 3 the partners for above reliefs against the owners proposed society and partner C. However one of the partners among rest 3 is not supporting the litigation. Now i would like to ask a query
1. What is the rule as to interse partner’s litigation and litigation of firm with outsider when one of the partners is not supporting the litigation?
2. Can 2 partners on behalf of firm file a suit against 4th partner (here partner C) and one of the partners among rest 3 is not joined as the plaintiff?
3. Partnership Deed says, if any dispute arising out of this deed shall be resolved by the Arbitrator. Can it preclude us from filing the suit?
4. Can proposed society be joined as the defendant?
Please Guide.
S. Bharath
(Expert) 08 July 2010
1. The Firm in its name has to sue the colluding partner; lack of support from one partner is unlikely to affect the litigation.
2. It depends on how the Deed is drafted: how the clause in the Deed empower and enable the partners to sue and defend.
3. By the act of collusion, the partner has traveled outside the purview of the Deed and more over when 3rd parties are being sued along with the colluding partner, arbitration clause will not operate as a bar.
4. The proposed Society cannot be made as a party; the persons behind it are to be roped in.
I hope this helps. Let us see what our learned fellow experts have to say.
Chanchal Nag Chowdhury
(Expert) 10 July 2010
1 & 3:-As per your Partnership Deed, it has to be referred to Arbitrator.
2:- Yes & subject to the Arbitration clause.
4:-U have stated that the Society is proposed i.e., not in existence. Therefore,it cannot be sued but the members can be sued.
