Narmada W/O Narendra Tendolkar, vs Vishnu @ Nilkanth @ Tatyasaheb Atmaram ... on 23 March, 2010

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Karnataka High Court

Narmada W/O Narendra Tendolkar, vs Vishnu @ Nilkanth @ Tatyasaheb Atmaram ... on 23 March, 2010

Bench: S.Abdul Nazeer

WP No.5"/267.09

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD

DATED THIS THE 23RD DAY OF MARC1E1I_".:'2V:()"'1:"0~V:~4 K

BEFORE

THE HON'BLE MR.JUsT1cfE"s;A3DULA  

WRIT PETITION No.67267y*20oé'3% WP 6i<53:OA?'2.,/T2010 

[GM¥'CE_'§1 A

BETWEEN:

1.

NARMADA w/o NVAREN_DF:RA--"TENfD_OLKAR,
AGE: 52 f{E.ARsj  _  *
OCC:BUSINESS3,. R;/0' B.'J.,_DF;'SA~I BUILDING,
GUR;U"WAR-PET'; "    A

TILAKWADI, BELVGAAUMT'

 D}.TFA"l'R_AYA TENDOLKAR,
A'GE:_ 48 YEARS._.   
OCC:BUSINES'S,;, R/O NO.28, SOMAWARPETH,

T1LA1«:wAD%1% BELGAUM

"  RAM,AKANT LAXMAN TENDOLKAR,

A;ge;44wYEARS

 V' f_  _OC_ C;BUS~,INESS, R/O NO.3147,
*  KHA%DET:;'BAzAR,B ELGAUM

  RAMACHANDRA TENDOLKAR,

Agé: 2 YEARS

 *  OCC:BUSINE3SS, R/O NO.28,
-A  SOMAWARPETH, TILAKWADLBELGAUM



WP i\Eo.67267.09

: 2 2

PRAJAKATA VIJAY TENDOLKAR

Age:38 YEARS

OCC:BUSINESS, R/O NO.34/A,
SUBHASH CHANDRA BOSE NAGAR,
R.C.NAGAR, BELGAUM

ASI-IABAI W/O MOI-IAN TENDOLKAR, 
Age:36 YEARS, 
OCC:BUSINESS, R/O NO.2_8,, _
SOMAWARPETI-I, V" A ' '
TILAKWADI, BELGAUM.

SATISH RAMAKANT TE_NDOLK-AR,.   *   
Age:32 YEARS   * ._  _ 
OCC:BUSINESS_. R/O N.O,j3._14.7,

KHADE BAZAA'R__,"'BEL_;GAUM_ _ 

  PETITIONERS

(By Sri.: G.B'AL;Af{RIS.IjI1'JA";SHAS'TRY.,.:ADV.)

AND  '  

VISHNU  TATYASAHEB ATMARAM

DQLKAR SINCE DECEASED BY LRS
 VIESI-IvWANTH"'N1VLKANTH TENDOLKAR

_AOE:MAJOR, OCC:BUSINESS,

'_  Em/.O  1,8, SARAF' COLONY, TILAKWADI,
"  B'E£'_;G_ALJM

 K-UN-DEA W/O SHAMSUNDAR GAONKAR,

AG:E:MAJOR, OCC:BUSINESS,
R/O V.N.TENDOLKAR, NO.18,

 .   SARAF COLONY, TILAKWADI, BELGAUM



WP N0.67267.09

3. SMT. MALATI SRINIVAS DESAI,
AGE:MAJOR, OCC:BUSINESS,
R/O S.K.DESAI, WALCHAND TERACE,
TARDEO, MUMBAI

4. VAISHALI A GAONKAR,
AGE:l\/IAJOR, OCC:BUSINE_SS,.__
R/O VARDGA BUILDING,  "
S}-IJANTINAGAR, GOA, *

5. M /s TEXTILES HOUSE,,4"A,_CLOTH s,VHoP';..,'"'~ 
KI-IADE BAZAAR, BELGAUM BY ITSPARTNER,
KETAN APPAJI TENDQLBLAR, '£\..GE:M'AJO.,vR
OCCBUSINESS, mo 3147," KBADE BAZAAR,
BELGAUM "       .

L   *  A"  RESPONDENTS
(By Sri.:   R1--R4)

:'IHI_S-- WR1T~P'ETI"TI_ON_ I-S FILED UNDER ARTICLES 226
& 227 '0I~*.TIIB 'CQNST_IT.IJTFION or INDIA PRAYING T0
QUASH  O'RDER, DTD. 3/12/2009 ON I.A.NO.2O
AND.,21 "IN_' Pr1::P'.No.20/1999 ON THE FILE OF
PR.L;CIVIL JUAD_c,3I§;,(,IR.DN) AND JMFC, BELGAUM,

" V%  SAMEIE3. PRODUCED As PER ANNEXURE-A.

   .' ». .'  . . . . .
   w'r1tv~'pet1t1on cormng on for orders thls clay,
theflourt-Vinside the foilowing:

ORDER

Sri. Vishnu @ Nilkanth @ Tatyasaheb Atmaram ' ff ""TBndolkar had filed the suit O.S.331/1967 on the ﬁle of he I. VV?' i\EO.D/..{D.f.U3 the Principal Munsiff at Beigaum against the M/s. Textiles House, a partnership firm represented by its Managing Partner Sri. Baburao @ Laxaxn Tendulkar, for decree for rendering the H the defendant, for recovery of the surnwi» found due on taking such at 12% per annum and forigcoststiii'-A was passed in the ' said in the following terms: A 4 it " i) 'The_ dcfendar1t" .

ii) T shail accounts to the the sale of produce from the J1-ands and also about the _ Vexpevn ses from 29-4-1944.

Tfheildefendant shall pay the costs of this suit to Iifcgthe-._p1aintiff.

decree be drawn up accordingly a direction for appointment of commissioners in the final decree proceedings 4 for taking up acﬁzlounts."

4' VHF FVU-U!' d.Uf .UU

2. The plaintiff initiated ﬁnal decree proceedings in FDP No. 20/1999 under Order 20 Rule 18 of the CPC as per Annexure B seeking the following relief:-- p a} "The final decree may be kindly rendering the account from the year giving direction to the defendants_-- if

b) The defendants may be clirectedjv to dues payable to plaintiffslifrorn the:.yelai* 1964 under the witl_1 lli'i--nte'relst Rs.18% P.A. A p _A _ f

c) Any other reliefivhich deem fit may be granted and may be passed."" V --

3.:VDu1'i11§V of the ﬁnal decree proceedings' thehpetitioners herein were impleaded as adcﬁtional de'fend_ants since they were inducted as . partnelrsvofythe defendant firm. The petitioners filed an lA'EAl.No. 21 requesting the Court below to permit .:_ them to lead the evidence, if the if plaintiffs/ respondents dmnot propose to lead evidence K UV!" [WU-LII LU!' -U3 : 6 : on the main. The Court below rejected the application by the impugned order.

2. Sri. Balakrishna Shastri, learned Adyocate appearing on behalf of the petitioners wou1dr~e_o-n_t'end that the petitioners were made partners defendant--firm after the prelirnintaryg they were impleaded as additiornalgl final decree proceedings. "Court a" V preliminary decree, Vdirectingflthelldefendaiitswto render the accounts to the plaintiffs. sale produce from '.the__ and the expenses incurred from 29 regard to the sub section 2 of sec'-tioriet .31 of l3artnership Act 1932, a person who . isrintroduczed as a partner into a firm does" not become liable of the firm done before he became a par"tner,V "Ilhe petitioners wanted to establish that they 2 iare._notl liable to render the accounts or make payments per preliminary decree as they were inducted in to ll:

s WP No.67267.09 the ﬁrm after the preliminary decree. Therefore, the Court below ought to have permitted theInV..l_t'o_:l_i*l.ead evidence in case the respondents / p1a_intiffs:.:do' to lead their evidence.

3. On the other hand. Jearntédlil appearing for the responderits.ll,Vhas_ :justify the impugned order. the preliminary decree has become plaintiffs have initiated lilnlalccordance with the Ordsrg-Q. a direction to pay the the plaintiffs from the year 1946_ to ill-964«._vvith_ interest at 18% p.a. Therefore questioning the"""maintai.nabi1ity of the finai decree prolceedingls«ai:j..this stage does not arise. 'A T 4."Ev._.Ahave carefully considered the argument of the

--..Ie--a_rned counsel on the above matter and perused the materials placed on record.

lb 7 WP No.67267.09

5.As stated above the preliminary decree.V'i"n'.Q.S. 331/09 was passed on 23/2/1974 defendants therein to rendeifﬂm the D, plaintiffs regarding sale of question and also expens'es«--..i.ncur*reﬁd It is not in dispute that were inducted as partners"-o'f.the' firm after the preliminary decree. as additional defendants proceedings. The plaintiffs' direiction to the respondents to pay.én;ti're: year 1946 to 1964 with interest 1V_8%d.p.av._ The petitioners have denied their 1iab'i'1i*¢y, to_payHth'e"amount as they were inducted into ﬁrm after the preliminary decree. In oAr»d_er v_to':e:stablish that they are not liable to pay any as per the preliminary decree, they want to lead '' Vevidience. In my opinion the court below ought to have = ...perrnitted them to lead evidence. The Court below has ll { dismissed the application on the ground that the petitioners cannot be permitted to lead evidence regarding maintainability of the ﬁnal , -"decree proceedings. A combined reading of the the affidavit indicates that the petitioners"'yva1'jiV"t:..toileadii' evidence to establish that theyfareiinot amount as per the pre1ir,n.inaryi--.gde.cree_b.eca1ise': their:

induction was after passing»..of' the preliiriinaify decree. Therefore the Trial' perniitted the petitioners to lead evidence On an earlier occasion, 'la.V'revisiio11. "p~eVtition_"'Wa's filed by the petitioners herein'.against order passed by the Court below in theV_:Vﬁn.al decree proceeding in CRP 1165/ 2002 Adisp'ose.d 'on 4/4/2002. In the said CRP this Court has iieiidee thaiiability of the petitioners /defendants has to'--foe v_cons'idered at a proper stage. This is a proper ggstage'».i2vhere the petitioners/ defendants should be it 'AAV_perri1itted to establish their case by allowing them to or -iiead evidence. (£3 a

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