Mehdi Mandil vs Trans Sharjah Aviation Limited

S.N. Variava, J.—The suit is filed by the plaintiff against the defendants describing them as a partnership firm operating under4 a municipal trade licence issued under the law of the United Arab Emirates and the writ of summons in the suit was served upon one Mr. Jehangir R. Mody as a partner of the defendant''s firm. I am informed that the writ of summons has also been served upon one Abdul R. Bukhatia who, according to the plaintiff, is the other partner of the said firm. The said Mr. Mody has filed his appearance in this suit under protest alleging that the defendant firm is not a partnership firm at all but is in fact a company with liability of its members limited to the extent of their contribution. As the appearance has been filed under protest, the plaintiffs have taken out the present chamber summons for the purposes of having the said protest raised and by consent of the parties chamber summons has been taken up for hearing first.

Mr. Subramaniam, appearing on behalf of the plaintiff, has submitted that the said Mr. Jehangir R.Mody along with the said Abdul Bukhatia were carrying on business under the name and style of Trans Sharjah Aviation Ltd. and that the said concern is in fact a partnership. In support of his contention, he relies firstly upon the admission made by the said Mr. Jehangir Mody in his written statement which has been filed in this court on November 9, 1976, wherein in paragraph 5(a) it is admitted that there is no codified company law at Sharajah. He further submits that the fact that this is a partnership is also borne out from a letter dated August 26, 1976, addressed by the Sharjah Chamber of Commerce and Industry to the plaintiff in this suit and which letter is annexed as exhibit "A" to the affidavit in support of this chamber summons. In the said letter, Sharjah Chamber of Commerce and Industry states that the defendant firm is a partnership concern and that the partners of the said firm are Mr. Abdul Rehman Bukhatia of Sharjah and Mr.J.R. Mody of India. Mr. Subramaniam also drew my attention to a letter dated May 23, 1975, addressed by the said Jehangir Mody to the firm of Messrs. Jamshedji Rustomji and Devidas and Jain and Merchant, former solicitors of the present plaintiff, in which the said Mr. Mody states as follows:

I have to inform you that I am leaving for Sharjah on a visit to settle various matters with my partner, Mr. Abdul Rehman Bukhatia...

Mr. Subramaniam, therefore, submits that it is clear that the said Mr. Mody and Mr. Abdul Rehman Bukhatia have in fact been carrying on business as partners and the defendants concern is nothing else but a partnership concern. Miss Siquander who appears for the said Mr. Mody has submitted that as the defendants in this suit are a company, the service of writ of summons on the said Mr. Mody as a partner of that concern is not proper service. She submits that the appearance under protest has been correctly filed and the suit against the said Mr. Mody cannot be maintained. Whilst admitting that there is no codified company law in Sharajah, in support of her contention that the defendants are still a company, Miss Siquander has tendered a xerox copy of a trade licence issued by the Sharjah Municipality. This has, by consent of the parties, been taken on record and marked "A". Accordingly to Miss Siquander, this is the copy of the licence under which business was carried on by the defendants and the relevant portion of the licence starts with the words:

This part concerns companies only.

Miss Siquander also relies upon clauses 9, 10 11 and 12 of the said licence and submits that all these clauses refer to the defendant concern as a company and that in fact in clause 12, Mr. Mody is shown as the chief executive director and it is further submitted that the liability of members of the company is limited as mentioned in clause 11 of this trade licence. Whilst it is true that in this licence the defendants are termed a company, however, the absence of any codified company law, that by itself does not make the defendants a company. In fact, clause 11 of the said licence provides as follows:

11. The company''s capital and part thereof that has already been paid and amounts to which the partners committed themselves to pay. .

Authorised capital --- Dirhams 160,000 Paid-up --- Dirhams 130,000 Limited liability (to be paid) --- Dirhams 30,000

Further, clauses 12 and 13 of the said document ask for names of responsible partners and names of partners respectively. Thus this document, therefore, refers to the concern as a company, but at the same time talks of partners of that company. Further, as can be seen from clause 11 which is reproduced hereinabove, that merely provides for capital contribution and the balance of capital remaining to be contributed. It is, therefore, clear from this document that the said Mr. Mody along with the said Mr. Bukhatia have under this licence been carrying on a business for profit and in the absence of any codified company law relating to companies can therefore have only been dealing as partners. This is further borne out by the letters relied upon by Mr. Subramaniam. So far as the letters referred to hereinabove are concerned, it is the submission of Miss Siquander that the letter exhibit "A" to the affidavit in support cannot be relied upon by the plaintiff unless and until the signatory of the letter comes into the box and subjects himself to cross-examination. As far as letter dated May 23, 1975, addressed by Mr. Mody himself is concerned, Miss Siquander submits that the letter is written by a layman and the word overlooks the fact that this letter is written in reply to a notice addressed by the plaintiffs former solicitors to the defendant concern and hand-delivered to the said Mr. Mody. In that notice, it is categorically stated as follows:

"You are a partnership firm operating under a municipal trade licence issued in accordance with the laws of the United Arab Emirates ....."

It is in reply to this letter that Mr. Mody in his letter dated May 23, 1975, states that:

I am leaving for Sharjah on a visit to settle various matters with my partner, Mr. Abdul Rehman Bukhatia, and the outstanding bill of M/s. Mehdi Mandil will be the prior matter of our discussions and Mr. Mody nowhere points out that the defendant concern is not a partnership and/or that he is only a director of the company with limited liability. Therefore, even if the letter, exhibit "A" to the affidavit in support is not looked at from the other documents which are available before the court it is very clear that Mr. Mody himself has treated the defendants concern as a partnership. Under the circumstances, the appearance under protest will have to be raised.

The chamber summons is accordingly made absolute in terms of prayer (a). However, there will be no order as to costs of the chamber summons.

On the application of Miss Siquander, the suit is adjourned for two weeks.