Madras High Court
R.P.Sarathy (Died) vs Narasu'S Coffee Company By on 16 September, 2020
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
CRP (PD)No.568 of 201828.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 25.03.2021
Delivered on : 27.04.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
CRP(PD) No.568 of 2018
and CMP No.5321 of 2021
1. R.P.Sarathy (died)
2. B.Latha
3. B.Jayashree
4.Pranoothi
(petitioners 2 to 4 was brought on record
as legal representative of the 1st petitioner
vide order dated 16.09.2020 in CMP No.
9386 of 2020 in CRP No.568/2018).
.... Revision Petitioners
Vs
1.Narasu's Coffee Company by
P. Sivanantham,
Court road, Johnnsonpet,
Salem – 636 007.
2. P.Sivananthan
(R.2 was brought on record as
legal representative of the 1st
petitioner vide order dated
16.09.2020 iin CMP No.9386/2020
in CRP No.568/2018. .... Respondents
1/30
http://www.judis.nic.in
CRP (PD)No.568 of 201828.
Civil Revision Petition filed under Article 227 of the Constitution of
India against the fair and decreetal order dated 16.06.2016 made in
I.A.No.141 of 2014 in O.S.No.50 of 2012 on the file of II Additional
District Court, Salem.
For Petitioners :Mr.T.R.Rajagopalan
Senior Counsel for
M/s P.Veena Suresh
For R.1 : Mr.C.Jagadish
For R.2 : Mr.AR.L.Sundaresan
Senior Counsel
for Mr.I.Arokiyasamy
ORDER
Challenging the fair and decreetal order dated 16.06.2016 made in I.A.No.141 of 2014, filed to amend the plaint in O.S.No.50 of 2012, on the file of II Additional District Court, Salem, the defendant has filed the above Civil Revision Petition and the plaintiff is the respondent in I.A.No.141 of 2014.
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2. The suit was filed by the plaintiff for partition and for permanent injunction. Suit was filed under the name and style of “Narasu's Coffee Company' represented by P.Sivanantham against the revisions petitioners herein. Originally, the plaintiff was registered under the provisions of Partnership Act. The partners of the said firm were (1)R.P.Sarathy, (2) B.Latha (3) B.Jayashree (4) P.Sivanantham and (5) Mahalakshmiammal Trust. Subsequently, the said Firm was re- constituted by inducting the wife of P.Sivanantham. Under these circumstances, all the partners have entered into a Memorandum of Understanding on 10.08.2006, whereby, the partners viz., R.P.Sarathy, B.Latha, B.Jayashree and Mahalakshmiammal Trust agreed to retire and P.Sivanantham would continue as a partner after inducting his wife Mrs.Lalitha as one of the partners.
3. As per Memorandum of Understanding, Mr.P.Sivanantham is liable to pay a sum of Rs.26.5 crores towards the final settlement to the retirement of all the revision petitioners as well as Mahalakshmiammal Trust. The said amount was also paid by Mr.P.Sivanantham. After the execution of Memorandum of Understanding, the first respondent Firm 3/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
has been completely under the control of Mr.P.Sivanantham and his wife, who are the only partners of the said Firm. The said Firm viz., Narasu's Company was converted into Sri Narasu's Coffee Company Limited with effect from 01.04.2009. In this regard, Exs.P.26 (True copy of the order of Memorandum and Articles of Association) and P.27 (Xerox copy of incorporation) were marked on behalf of the first respondent herein.
4. Disagreeing with the Memorandum of Understanding dated 10.08.2006, one of the partners viz,R.P.Sarathy filed a suit in O.S.No.106 of 2009 for partition to divide the six items of suit schedule properties. These properties are Firm's properties. Since R.P.Sarathy disagreed with the Memorandum of Understanding, the first respondent filed a suit in O.S.No.1019 of 2009 to declare the sale deeds dated 23.08.2006 executed in terms of Memorandum of Understanding in favour of the revision petitioners herein as null and void.
5. The revision petitioners filed a petition in I.A.No.865 of 2009 to reject the plaint in O.S.No.106 of 2009 and the same was dismissed by 4/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
the trial Court on 18.08.2011. Thereafter, Civil Revision Petition in CRP No.2379 of 2012 was filed by the respondents herein. The said Civil Revision Petition was allowed and the plaint in O.S.No.106 of 2009 was rejected. Against the said order, a Special Leave Petition No.118 of 2015 was filed and the same was dismissed on 02.02.2015.
6. Under these circumstances, the revision petitioners filed a petition in I.A.No.249 of 2012 to reject the plaint in O.S.No.50 of 2012. It is the case of the respondent that at the time of preparing the counter to the said application, the respondent herein came to know the fact that the suit was filed against improper and non-existent person. The suit was filed by Partnership Firm viz., Narasu's Coffee Company, Whereas, the said Firm was converted into Limited Company under the name and style of “Sri Narasu's Coffee Company Limited” (hereinafter called as “the Company” )with effect from 01.06.2009. Therefore, the plaintiff in the suit filed an Amendment Petition to amend the cause title. Further, the suit was filed for partition to divide 27 items of the property mentioned in the Schedule. The suit was filed for partition by the Firm due to the reason that R.P.Sarathy refused to accept the Memorandum of Understanding, entered into in the year 2006.
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7. The plaint in O.S.No.106 of 2009 was rejected by the Hon'ble High Court in C.R.P No.2379 of 2012 and subsequently it was confirmed by the Apex Court by order dated 02.02.2015. Therefore, the Memorandum of Understanding was held good and the parties of the Memorandum of Understanding are liable to implement the same. Since the suit in O.S.No.106 of 2009 was dismissed and the Apex Court has also upheld the Memorandum of Understanding entered into among the partners in the year 2006, the prayer for 22.5% shares in the 27 items does not arise by virtue of the order passed by the Apex Court, the entire properties belonging to the erstwhile partnership firm and it will become property of Company subsequent to conversion of the partnership Firm into Sri Narasu's Coffee Company Limited. Therefore, the amendment in the pleadings was sought for by the plaintiff in I.A.No.141 of 2014 in O.S.No.50 of 2012. Consequently, the prayer for declaration and permanent injunction was sought for in the amendment. The same was challenged in CRP (PD) No.3010 of 2016. This Court by order dated 28.11.2016 set aside the order dated 31.7.2015, restored the application in I.A.No.141 of 2014 and remanded the matter for re-consideration. 6/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
8. Accordingly, after hearing both the parties, the Court below allowed I.A.No.141 of 2014 and permitted the respondent to amend the plaint. Challenging the above order, the present Civil Revision Petition has been filed.
9. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the revision petitioners submitted that the respondent/plaintiff filed the amendment petition for amending the cause title, pleading and the prayer in the suit. As far as amending the cause title in the suit is concerned, learned Senior Counsel submitted that the Firm was said to have been converted into a Company under the name and style of “Sri Narasu's Coffee Company Limited' with effect from 01.04.2006. After conversion of the Firm into Company, the respondent/plaintiff filed a suit in O.S.No.1019 of 2009. Therefore, they are well aware of the fact that the Firm is not in existence and the suit in O.S.No.1019 of 2009 was filed in the name of M/s Sri Narasu's Coffee Company Limited. Therefore, the learned Senior Counsel submits that the suit was filed by a non-existent person and it was not filed merely due to oversight. The plaintiff is well 7/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
aware of the fact that the suit should be filed in the name of Company, once the Firm was converted into Company. Therefore, at this point of time, after a period of two years, they cannot file a petition to amend the cause title. The suit itself was filed by a non-existent person and the same is liable to be rejected.
10. With regard to the amendment of the pleadings, learned Senior Counsel submitted that the plaintiff wants to amend the pleadings stating that as if 27 properties mentioned in the suit schedule have been purchased out of the funds of the erstwhile Firm. Therefore, the entire property should be declared as properties of the Plaintiff Company. Originally, the suit was filed for partition, wherein, it was stated that as if P.Sivanantham is entitled for 20% of the share in the Firm as partner and 2.5% as Trustee in Mahalakshmi Ammal Trust, thus, total share of 22.5% share and the said share should be given to the Firm. When such being the case, now the amendment sought for by the plaintiff will completely change the nature and character of the suit itself. It will change the basic nature of the suit. This aspect was not considered by the Court below. Application for amendment of the plaint was filed in the year 2014. Properties of erstwhile Firm was settled by virtue of 8/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
Memorandum of Understanding dated 10.08.2006. Therefore, claiming any right over the properties as if claiming the properties of the Firm, the Company would be barred by limitation. When this point was raised before the Court below, the Court below, instead of considering the limitation on merit, it has simply rejected the plea stating that the plea of limitation would be considered at the time of trial.
11. Learned Senior Counsel contended that the said order is not proper. There is no bar for the Court to consider the plea of limitation at the time of considering the amendment of the pleading. Therefore, learned Senior Counsel contends that the decreetal order is not proper and liable to be set aside.
12. Yet another point raised by the learned Senior Counsel is with regard to amendment of prayer in the suit. Originally, prayer was sought for partition and permanent injunction. Now, the respondent/plaintiff wants to amend the prayer for declaration and permanent injunction. The plaintiff wants to claim the entire properties as his property and therefore, they sought for an amendment. The said amendment also would change the basic structure, nature and character of the relief 9/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
sought for in the suit earlier. Therefore, learned Senior Counsel submitted that the amendment sought for in the application is not proper and the same is liable to be rejected.
13. Learned Senior Counsel relied upon the Memorandum of Understanding dated 10.08.2006. wherein, he referred Clause 2(l) which reads as follows:-
“Mr.P.Sivanandham, will withdraw all the allegations made by him in the counter filed by him in I.A.816 of 2006 in O.S.773 of 2006 on the file of District Munsif Court, Salem with reg ard to various properties. He agrees that the properties in the standing in the names of various persons and firm belong to the respective persons and firm in whose name they stand and they are absolutely entitled to the properties standing in their respective names. Mr.R.P.Sarathy can continue construction works in the property of minor Pranuthy which is the subject matter of suit O.S.773 of 2006 District Munsif Court, Salem and consequently Shri R.P.Sarathy agrees to withdraw the suit.” 10/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
14. Mr.P.Sivanantham will withdraw all the allegations made by him in the counter filed by him in the interlocutary application filed by him in I.A.No.816 of 2006 in O.S.No.773 of 2006 on the file of District Munsif Court, Salem with regard to various properties. He agrees that the properties which are standing in the name of various persons and Firm and the respective persons and the Firm, in whose names, the properties stand, are absolutely entitled to the properties. Mr.R.P.Sarathy can continue construction works in the property of the minor viz., M.Pranuthy, which is the subject matter of suit in O.S.No.773 of 2006 before the District Munsif Court, Salem and consequently, M.P.Sarathy agrees to withdraw the suit.
15. Learned Senior Counsel contends that the properties standing in the names of partners and respective Firm would continue in their names which means that the plaintiff Firm/Company will not have any right over the property. It relinquished their right even assuming that the properties have been purchased out of the funds of the Firm or in the name of individual or partners except to the extent specified in the 11/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
Memorandum of Understanding. Therefore, in terms of Memorandum of Understanding, the suit schedule properties are not vested with plaintiff's name but in the name of other Firm or in the name of individuals. In terms of the above clause, the plaintiff is not entitled to claim that the properties are purchased out of the funds of the Firm.
16. Learned Senior Counsel raised one more point with regard to benami transaction. The Court below held that Benami Transactions (Prohibition) Act, 1988 will not apply. In an amendment petition the Court below held that without any trial, Benami Transactions (Prohibition) Act, 1988 will not apply. The said finding is liable to be set aside and prays to allow the Civil Revision Petition.
17. Per contra, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the second respondent would submit that originally suit was filed for partition by the plaintiff due to the reason that in the year 2009, Mr.R.P.Sarathy filed a suit in O.S.No.106 of 2009 for partition to divide six items of property, whereby, he refused to accept 12/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
Memorandum of Understanding dated 10.08.2006. The Firm has filed a suit in O.S.No.1019 of 2009 for partition of 27 items of properties of erstwhile Firm. Subsequent to the dismissal of the suit in O.S.No.106 of 2009, all the parties are bound to implement the terms and conditions of the Memorandum of Understanding. In the Memorandum of Understanding, it has been clearly mentioned that what are all the properties can be retained by the partners and what are all the properties can be transferred to the other partners. Except the properties specifically mentioned therein and third parties right are created, all other properties belong to the plaintiff Company. There are 27 items of properties in the suit schedule. All the properties have been purchased out of the funds of erstwhile Firm, for which, proper accounts have been maintained. Originally the plaintiff filed a suit against the right over 27 items of properties. The right of claim in 27 items of properties was to the extent of 22.5%. Since R.P.Sarathy disagreed with the Memorandum of Understanding, the first respondent filed a suit in O.S.No.1019 of 2009 and O.S.No.50 of 2012. Now, the entire right in the property has been crystalised to and in favour of the plaintiff by virtue of upholding the validity of Memorandum of Understanding dated 10.08.2006 by this Court in CRP No.2379 of 2012. Against the said 13/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
order, a Special Leave Petition No.118 of 2015 was filed and the same was dismissed on 02.02.2015. Therefore, it has become necessary to make proper amendment in the pleading. Even at the time of filing the suit, the plaintiff is entitled 100% right in the property, but, wrongly claimed as 22.5%. The plaintiff has sufficient records to prove that the properties have been purchased out of the funds of the erstwhile Firm. It is not the case of the plaintiff that they have failed to mention the properties of the Firm in the suit, at the time of filing the suit. An amendment is sought for only to the extent of percentage change in the right in the schedule mentioned properties. Subsequent to the rejection of the suit in O.S.106 of 2009, there is no dispute with regard to crystalisation of 100% right in the suit schedule property. Therefore, learned Senior Counsel contends that amendment is necessary and it will not change the character and nature of the suit and in no way, it will alter the basic structure . The Court is going to decide the right of the plaintiff in the suit schedule properties. The plaintiff is not going to add any other property to claim any additional right so as to change the basic structure of the suit.
18. With regard to the amendment of cause title is concerned, 14/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
amendment was sought for under Order I Rule 10 of Civil Procedure Code. As per the said Order, if any person's name has been wrongly instituted, the same can be substituted with correct name. The fact remains that at the time of filing the suit, the Firm is not in existence. Therefore, the plaintiff's name was wrongly mentioned. It should have been mentioned as M/s Sri Narasu's Coffee Company Limited instead of Narasu's Coffee Company by P.Sivanantham. The suit cannot be filed by a non-existent person. However, learned Senior Counsel fairly admits that the Firm was converted into Narasu's Coffee Company Limited with effect from 01.04.2009 and subsequent to that, suit was filed in the name of the Company in O.S.No.1016 of 2009. But the present suit was inadvertently filed in the name of the Firm. Learned Senior Counsel submits that at any cost, the suit cannot continue in the name of the Firm, which is non-existent one and the same should be substituted with the Company's name under the name and style of M/s Sri Narasu's Coffee Company Limited.
19. As far as amending the prayer is concerned, learned Senior Counsel submits that initially by virtue of the partition, the plaintiff tried to get 22.5% and since the entire right in the property has been 15/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
crystalised/confirmed to and in favour of the plaintiff, subsequent to the dismissal of the suit in O.S.No.106 of 2009, the need arises for amendment of the prayer for declaration and for permanent injunction. Therefore, learned counsel submits that all these aspects have been considered by the Court below in a proper perspective and there is no need for any interference.
20. Mr.C.Jagadish, learned counsel appearing for the first respondent reiterated the arguments advanced by Mr.AR.L.Sundaresan, learned Senior Counsel and submitted that there was a negligence on the part of the plaintiff in filing the suit. The Firm is not in existence. Therefore, the suit ought to have been filed under the name and style of M/s Sri Narasu's Coffee Company Limited. Hence, it is necessary to amend the cause title. Further, learned counsel submits that subsequent to the dismissal of the suit in O.S.No.106 of 2009, the entire right of the properties has been confirmed to and in favour of the plaintiff Company. Further, he submits that as contended by Mr.AR.L.Sundaresan, learned Senior Counsel the rights of 27 properties are going to be decided only in the suit.
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21. Initially, claim was made only for 22.5%. Now, the plaintiff wants to change to 100%, Therefore, in the present case, the amendment will not be barred by any limitation. Further it is not a benami transaction. When the partnership firm purchased some of the properties in the name of individuals and they have been holding the property on behalf of the Firm, since the Firm was converted into Company, it is the duty of the Company to change the title deed in the name of the Company. Hence, amendment is necessary and therefore, prayed for dismissal of the Civil Revision Petition.
22. Heard both sides and perused the materials available on record.
23. I.A.No.141 of 2014 was filed by the plaintiff to amend (i) cause title (ii) pleadings and (iii) prayer.
24. As far as amendment of cause title is concerned, the suit was filed in the name of “Narasu's Coffee Company” by P.Sivanantham. The Narasu's Coffee Company was converted into Company under the name 17/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
and style of Sri Narasu's Coffee Company Limited with effect from 01.04.2009. The present suit was filed by the respondent/plaintiff in the year 2012. Once the firm is converted into Company, the partnership will automatically get dissolved as the Company would take over entire assets and liabilities of the Firm. Thus, after the conversion of the Firm into Company, the Firm will not exist. An application was filed under Order I Rule 10 of Civil Procedure Code to amend the cause title from Narasu's Coffee Company to Sri Narasu's Coffee Company Limited. It means that the suit was originally filed in the name of non-existent person. Therefore, the plaintiff sought to amend the same. The fact remains that the Firm was not in existence at the time of filing of the suit in O.S.No.50 of 2012. At this juncture, it is relevant to extract Clause (1) of Order I Rule 10 of Civil Procedure Code which states as follows:-“ Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.” 18/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
24(a) A perusal of clause(1) of Order I Rule 10 of Civil Procedure Code would show that in the event if a suit has been instituted in the name of the wrong person as plaintiff, the Court can at any stage, if it is satisfied that there was a bona fide mistake while arraying the parties to the suit it can substitute with the other person as plaintiff.
25. In the present case, the Firm is not in existence. However, the suit was filed in the name of the Firm. Admittedly, it was filed in the name of wrong person. Now, the issue to be decided is as to whether it is a bona fide mistake or not?
26. The Firm was converted into Company in the year 2009 under the name and style of M/s Sri Narasu's Coffee Company Limited. When such being the case, it is wrong on the part of the plaintiff to file a suit in the name of the Firm. The Court should also look into the aspect of whether there is any intention behind to file the suit in the name of Firm. If there is any intention, the mistake claimed by the plaintiff cannot be treated as bona fide. According to the plaintiff, the mistake was committed by oversight.
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27. The Firm is not in existence. It is an admitted fact that the respondents have not mentioned that the Firm is in existence. If it is in existence, the Court can decide about the bonafides of the plaintiff in filing the suit in the name of the Firm. While it is not in existence, the plaintiff is not going to be benefited by virtue of filing the suit in the name of non-existent Firm, even if any decree is going to be passed, it is only a paper decree and it cannot be executed. Therefore, I do not find any ulterior motive other than the bona fide mistake committed by oversight on the part of the plaintiff by wrongly filing the suit in the name of the Firm instead of filing in the name of Company.
28. At any cost, the suit cannot be continued in the name of a non- existent person and the same has been brought to the knowledge of the Court for the substitution of right person. The Court below also considered this aspect and allowed the amendment. Therefore, I do not find any irregularity in the fair and decreetal order with respect to the allowing to amend the cause title.
29. In the amendment petition, the plaintiff also sought for 20/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
amendment of pleadings as well as prayer. The suit was filed by the plaintiff claiming right over 27 items of the suit schedule properties. At the time of filing suit, all 27 items have been mentioned as suit schedule properties. No amendment was sought for adding or deleting the suit schedule properties. Ultimately, the Court has to decide the entitlement of the plaintiff in the suit schedule properties.
30. Initially, the plaintiff claimed 22.5% right in the suit schedule properties. Now, the claim of the plaintiff is 100% in the suit schedule property. The reason for changing the plaintiffs entitlement from 22.5% to 100% is subsequent to the validation of Memorandum of Understanding dated 10.08.2006 by this Court as well as Apex Court. According to the plaintiff, as per the Memorandum of Understanding Mr.P.Sivanantham is liable to pay a sum of Rs.26.5 crores towards the final settlement to the retirement of all the revision petitioners as well as Mahalakshmiammal Trust. If at all there is any obligation on the part of either of the parties, it is their duty to perform the same. In the absence of performance of any of the terms and conditions by either of the parties, it is for the respective parties to claim their right in the manner known to law.
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31. Now, the plaintiff's contention is that 27 items of properties in the suit schedule were purchased out of the funds of the Firm. The properties are in the name of the individual etc. They are holding the properties in trust on behalf of the Firm when it was in existence. Once the Firm is converted into Company, these properties are automatically vested in the name of the Company, if it is in the Firm's name. But in the present case, a claim was laid that the Firm purchased some of the properties in the name of individuals and some properties in the name of the other Firm and in that case, the Company has no other option but to file a suit for declaration when the holder of property deny the title of the firm/Company.
32. The plaintiff originally claimed right over 27 items of the suit schedule property. Against the said suit schedule properties alone, the plaintiff is claiming the rights by virtue of amending the pleadings. The Court, ultimately is going to decide the right of the parties to the suit, in the 27 items of the suit schedule property even without amending and subsequent to the amendment also, the Court will decide the same. As long as when the Court is not going to decide the right against any of the 22/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
properties not mentioned in the suit schedule, it would not amount to bringing a new case to change the character, nature and basic structure. In the present case, no such right is going to be decided against the properties which are not mentioned in the original suit schedule properties before the amendment. Therefore, the amendment of the pleadings is not going to change the character, nature and basic structure of the suit.
33. As far as the argument that the properties lying in the name of individuals, partnership firm other than parties to the Memorandum of Understanding shall continue in the name of the Firm are concerned, whether the said clause will apply and cover only the parties to the agreement or otherwise would attract the other parties, the same cannot be decided in an application for amendment of pleadings. Whether the terms and conditions would bind only to the parties to the agreement or beyond the scope of the agreement, would be decided only after letting the parties to present evidence. The claim of the revision petitioners is that by virtue of clause no.2(l) of Memorandum of Understanding, the plaintiff is entitled to the properties mentioned therein alone. On the other hand, the respondent contended that the agreement will apply only 23/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
to the parties to the agreement. If the properties purchased in the name of any other individual and Firm etc., who are not parties to the Memorandum of Understanding would not bind the plaintiff, in which case, the plaintiff is entitled to take appropriate action to recover the possession of the property. Obviously it is an important issue which has to be decided by the Court below not at the stage of the amendment of the pleading, but it can be decided only after full fledged trial. Therefore, it is for the Court below to decide and frame appropriate issue if so desired by the parties.
34. Even this Court is of the view that the right claimed by the plaintiff in the suit is not proper. Subsequent to the amendment of pleadings only, it would be proper. Initially, one of the partners viz.,P.Sivanantham claimed that he is entitled for 22.5% shares in the Firm and therefore the said share should come to the Company. This way of laying the claim is not proper.
35. Bestowing my thoughtful consideration to these aspects, this Court is of the considered view that a Firm/Company cannot file a suit for partition on behalf of one of the partners to claim his share and 24/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
thereafter to treat it as firm/company property. The Firm/Company can file suit to determine its right in the properties but not the right of partner in the firm's/company's property. The partner's right in the firm/company will accrue only in the event of dissolution of the Firm or he will get dividend for his share in the Company in the event of dissolution of the Company. No such situation that arose in the present case. Thus, the suit was originally not filed in a proper manner. Now, by virtue of amendment, the plaintiff is not going to introduce any new plea, but by ignorance, the suit was filed and same has to be corrected legally. Further, without amendment, the right of the parties cannot be adjudicated in a proper manner and allowing this amendment will no way prejudice the right of any of the parties of the suit. Therefore, this Court feel that the amendment in the pleadings is necessary to adjudicate the rights of the parties.
36. As stated above, the amendment sought for in the relief is only for declaration to declare the suit schedule properties as properties of the plaintiff. This is the consequential relief. This Court does not find any irregularity in allowing this relief and with the amendment of pleading and the prayer, the Court can render complete justice to the parties. 25/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
Accordingly, the amendment is necessary.
37. When question of limitation was raised before the Court below, the Court below, instead of considering the limitation on merit, it has simply rejected the plea of the revision petitioners stating that the plea of limitation would be considered at the time of trial. As far as this finding is concerned, this Court does not find any error.
38. On the other hand, it has held that Benami Transactions (Prohibition) Act, 1988 will not apply. As far as this finding is concerned, this Court is not agreeing with the finding of the Court below. In an amendment petition, the Court below cannot come to the conclusion whether Benami Transactions (Prohibition) Act,1988 will apply or not without allowing the parties to let in evidence. Therefore, the finding of the Court below with respect to the claim of the plaintiff would not be affected in view of Section 4(9)(b)(2) of amended Benami Transactions (Prohibition) Act,1988 is set aside and the same can be decided by the trial Court by framing appropriate issue and decide the same in accordance with law after allowing the parties to let in evidence. Therefore, the finding of the Court below on the aspect of non- 26/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
application of Benami Transactions (Prohibition) Act,1988, alone is set aside.
39. With regard to all other aspects, this Court does not find any error in the fair and decreetal order passed in I.A.No.141 of 2004 in O.S.No.50 of 2012 on the file of II Additional District Court, Salem and the same stands confirmed.
40. In the result, Civil Revision Petition is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.
27.04.2021 Index: Yes Internet:Yes Speaking order sr To The II Additional District Court, Salem 27/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
28/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
KRISHNAN RAMASAMY,J.
sr Pre-Delivery Common Order in CRP (PD)No.568 of 2018 .04.2021 29/30 http://www.judis.nic.in CRP (PD)No.568 of 201828.
Pre-Delivery Order in CRP (PD) No.568 of 2018 To The Hon'ble MR.Justice KRISHNAN RAMASAMY Most respectfully Submitted S.Revathi,P. 30/30 http://www.judis.nic.in