Bangalore District Court
Udairaj (Since Dead vs Smt. Sajjankanwar on 31 October, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 31st day of October, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O. S. No.5356/2008
PLAINTIFFS: Udairaj (since dead, his Legal heirs)
1(a): U.Gautham S/o Udairaj
Aged about 59 years.
1(b): U.Subhasraj S/o Udairaj
Aged about 55 years.
1(c): U.Premchand S/o Udairaj
Aged about 51 years.
1(a) to 1(c) are R/at No.41,
Central Street, Bangalore- 1.
1(d): Smt. Leela
W/o Dr. S.Bikkamchand,
Aged about 58 years.
R/o No.5, Rukmini Colony,
A.M.Road Cross,
Bangalore- 560 042.
1(e): Smt. Nirmala,
W/o Ashokchand Luniya,
Aged about 53 years.
R/o No.63, Harwick
Cottage, Upper Bazaar,
2 O.S 5356/2008
Ootacamund-643001,
Tamilnadu.
1(f): Smt. Shoba
W/o Dr. Jitender Kumar,
Aged about 49 years.
R/o No.17, Thambuchetty
Road, Cot town,
Bangalore- 560 005.
1(g): Smt. Premila
W/o Chandmal Khatod,
Aged about 45 years.
III Floor, Arihant
Apartments, Shivan Chetty
Gardens, Bangalore- 560 042
(By Sri.Anilkumar Shetty, Advocate)
Vs.
DEFENDANTS: 1. Smt. SajjanKanwar,
W/o late Mohanlal,
Age dabout 66 years,
R/at No.73, Lakshmi Nivas,
1st Floor, VI Main,
57th Cross, 4th Block,
Rajajinagar,
Bangalore- 560 010.
2. Sri. J.Ashokchand,
S/o late Jawaharlal,
Aged about 48 years,
R/t No.234 [E-112],
Garudachar Complex,
Above Vijay Vihar Hotel,
Chickpet, Bengaluru-53.
3 O.S 5356/2008
(By Sri.A.Sampath, Adv. for D.1
By Sri.Adarsh Gangal, Adv. for D.2.)
Date of institution of the suit: 05.08.2008
Nature of the suit: Injunction suit
Date of commencement of 08.09.2010
recording of evidence:
Date on which Judgment was 31.10.2015
pronounced:
Duration: Days Months Years
25 02 07
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for permanent injunction restraining the 2nd defendant from running the business under the name and style of Central Electricals in Item No.1 of the schedule property and utilize item No.2 of the schedule property as godown and restraining him from using the assets and also goodwill of the firm; directing the 2nd defendant to render the account for the business he has done up to the date of the suit till 4 O.S 5356/2008 he closes the business and also for costs and such other reliefs.
2. a) The plaintiffs have stated that the plaintiff, his father Hiralal, his brothers Jawaharlal, Mohanlal and one Bhawarilal- nephew of the plaintiff constituted themselves into a partnership firm on 2.11.1960 under the name and style 'Central Electricals'. Copy of the document is also produced. According to the plaintiff, the said firm was registered with the Registrar of Firms under Section 69 of the Indian Partnership Act 1932 and copy of the registration certificate is also produced. They have stated that they started business initially at old poor house road, (OPH Road), Bengaluru. Later they opened a branch at Chickpet at premises No.223 (E-112), Garudachar Complex, above Vijaya Vihar Hotel, Bengaluru-53 and operationally shifted the business etc. The said business is 5 O.S 5356/2008 morefully described in item No.1 of the schedule. The said premises was obtained on lease from its owner by virtue of the lease deed dated 12.12.1977.
b) Plaintiffs further stated that on 15.4.1965 the firm was reconstituted and thereby Hiralal, Jawaharlal, Mohanlal and the plaintiff were continuing partners and Bhawarlal retired from the firm. Copy of the partnership deed is also produced. Plaintiffs further stated that once again they reconstituted the partnership firm on 16.1.1968 in which Hiralal, Jawaharlal, plaintiff and the 1st defendant and Prakash Chand were the continuing partners. Subsequently Hiralal, Prakash Chand, Mohanlal were died. Sajjan Kanwar wife of Mohanlal became the partner.
c) Plaintiffs further stated that the partnership continued with late Jawaharlal, plaintiff and 1st defendant. Jawaharlal died on 22.3.2000 as recorded 6 O.S 5356/2008 in the death certificate, which is produced. As per the terms of the partnership of the year 1968, Sub- Clause(j) of Clause-10 specifically stated that on the death of any partners, the partnership will not automatically dissolve, but it stands dissolved on the expiry of the financial year. So, in view of this clause, after the death of Jawaharlal, when he died on 22.3.2000, partnership stood dissolved on 31.3.2000. Thereafter, there was no any authority to continue any of the business of the firm or to run the business in the leasehold right of the partnership much less anybody has got to use the assets of the firm or goodwill of the firm for the business. According to the plaintiffs, the business should be closed and final accounting should be taken. Infact, the business at OPH road was stopped, but in the business, which was run in Chickpet in premises No.234, (E-112), Garudachar Complex, above Vijaya Vihar Hotel, 7 O.S 5356/2008 Chickpet, Bengaluru, the 2nd defendant without having any right, against the will of the remaining partners continued to run the business without even rendering the accounts to the other partners and later on the plaintiff came to know that by playing fraud and misrepresentation before the sales tax authorities, the 2nd defendant has registered himself as dealer claiming to be a proprietor. Similarly the go down at premises No.4, A.M.Road, Chickpet, Bengaluru, which is morefully sown in item No.2 of the schedule is also held by the firm on lease and is being misused by the 2nd defendant. The lease is in the name of the registered partnership firm and legal representative of the deceased partner has no right to continue the business after expiry of the financial year after the death of the original partner etc. Hence, his continuance of the business is without any authority. The 2nd defendant has no right to use the premises 8 O.S 5356/2008 belongs to the partnership or assets of the partnership, much less good will of the partnership. Hence it is just and necessary that the 2nd defendant should be restrained by way of permanent injunction as per Section 53 of the Partnership Act.
d) Plaintiffs further stated that after the death of Jawaharlal, plaintiff has been persuading the 2nd defendant to render final accounts, but the 2nd defendant closed the business at old poor house premises and promised to render the account and to close the business at Chickpet. It was also assured that to complete some of the contract, which is already entered into with the various authorities, the 2nd defendant continuing the business etc. Believing his representation to be true, the plaintiff allowed the 2nd defendant to run the business only for a particular purpose of completing the preexisting obligations. 9 O.S 5356/2008 Ultimately the 2nd defendant promised that he would close the business or render the final account on or before 31.3.2008, but he failed to do so. Hence, the plaintiff filed this suit.
e) Plaintiffs also pleaded cause of action in para-7 of the plaint and pray for decreeing the suit as prayed for.
3 The plaint schedule reads as follows:
SCHEDULE ;A; PROPERTY Item No.1:
All that piece and parcel of the premises under the name and style of 'Central Electricals' in premises No.234, (E-
112), Ground floor, Garudachar Complex, above Vijay Vihar Hotel, Chickpet, Bengaluru-560 053 and bounded on East by: Private property;
West by: Passage of same property;
North by: Road; and South by: Remaining portion of the complex.
10 O.S 5356/2008Item No.2:
All that piece and parcel of the godown bearing No.4, (Old No.13 & 14), A.M.Lane, Chickpet Cross, Bengaluru- 560 053 and bounded on:
East by: Road;
West by: Private property;
North by: Private property; and South by: Passage of same property.
4. a) The 1st defendant filed written statement denying all the plaint averments and further contended that it is true that the plaintiff, his father and his brothers and nephew by name Bhawarilal constituted the partnership firm on 2.11.1960 under the name and style 'Central Electricals'. The business was initially started at OPH Road. Subsequently a branch was opened at Chickpet at item No.1 of the suit property. The firm was reconstituted on 15.4.1965, wherein Bhawarilal was retired from the 11 O.S 5356/2008 firm etc. Thereafter the firm was reconstituted again on 16.1.1968. The 1st defendant was also inducted as a partner in the firm. Hiralal, Prakash Chand and Mohanlal, who were the partners, have died.
b) The 1st defendant further contended that the terms of the partnership as per the reconstitution deed of the year 1968 was clear to the effect that the firm would be dissolved by death of the partners. Jawaharlal who was the partner, died on 22.3.2000 and firm stood dissolved by the terms of the partnership.
c) The final accounting of the firm, which ought to have been taken, was not drawn. The 2nd defendant continued to use the goodwill and business of the firm and continued the business against the will of the other partners etc. and the 2nd defendant failed to render the accounts and by misrepresentation of 12 O.S 5356/2008 facts, the 2nd defendant claims to be the proprietor of the concern even though the other partners had not authorised. She also further stated that the 2nd item of the suit property was held by the firm on lease as go down, which is being misused by the 2nd defendant. Inspite of repeated requests to render the accounts, the 2nd defendant failed to render the account. According to the 1st defendant, the common well- wishers advised not to embark upon the litigation and to settle the matter amicably. The 2nd defendant taking advantage of the said fact continued to make illegal gains and failed to furnish the accounts. In view of the present suit, on accounting, the 1st defendant is also entitled to share in terms of the partnership, which may be ordered to be released in her favour and accordingly prays this Court to dispose off the suit accordingly.
13 O.S 5356/2008
5. a) The 2nd defendant field written statement denying all the plaint averments and further contended that this suit is filed by the plaintiff with a malafide intention for wrongful gain to the plaintiff and to cause wrongful loss to the 2nd defendant and to harass the 2nd defendant etc.
b) According to the 2nd defendant, after the death of Jawaharlal, the remaining partners of the erstwhile partnership firm i.e. Central Electricals took the goods of the firm available at three premises i.e. suit schedule properties and the property situated at No.459, OPH Road, Bengaluru and abandoned the business of Central Electricals etc. The remaining partners also apportioned amongst themselves what ever goods that were available in the said three properties. With the consent of the remaining partners and legal representatives of late Jawaharlal, 14 O.S 5356/2008 son of the plaintiff by name Subash Raj took exclusive possession of the property bearing No.459, OPH road, Bengaluru and carried on his business in the name and style Subash Electricals. The 2nd defendant started his business as proprietary concern in the name and style Central Electricals in property No.234 (E-112), Chickpet, Bengaluru and property bearing No.4, A.M.Lane, Chickpet, Bengaluru was used by the 2nd defendant as a go-down. Since 18.12.2000 the 2nd defendant is in possession of the suit property in his capacity as proprietor of the Central Electricals. The plaintiff never objected the 2nd defendant carrying on his proprietary concern in the name and style Central Electricals etc. in the suit property as his own son exclusively occupied another property belongs to the erstwhile firm i.e. at property No.459, OPH road, Bengaluru for carrying on his proprietary business in the name and style of Subhash Electricals. 15 O.S 5356/2008
c) The 2nd defendant also further contended that he has been running the business under Central Electricals since 18.12.2000 as proprietary concern without any let or hindrance from anybody. The plaintiff was also aware of the fact that the 2nd defendant has carrying on his proprietary business in the name and style Central Electricals since 18.12.2000. Accordingly the 2nd defendant also produced in proof of his being in exclusive possession of the schedule property since 18.12.2000 and carrying on his proprietary business in the suit schedule properties i.e.
1. Registration certificate dated 19.12.2000 issued by the Commercial Tax Department.
2. Godown certificate dated 19.12.2000 issued by the Commercial Tax Department.
3. Receipt dated 19.12.2000.
16 O.S 5356/2008
d) The 2nd defendant also stated that from that day, plaintiff's son has been exclusively carrying on business in the name and style of Subhash Electricals at shop No.459, OPH Road, Bengaluru and 2nd defendant is in the shop No.234 (E-112), Garudachar Complex, Chickpet, Bengaluru. The 2nd defendant started the said proprietary concern and also registered the same with Commercial Tax Office and today after years of his hard work, when proprietary concern is yielding good income, the plaintiff with a malafide intention is making wrongful gain for himself and the 1st defendant and to cause wrongful loss to the 2nd defendant, filed this frivolous suit. He also stated that the plaintiff and his son from their business at No.459, OPH road, Bengaluru are earning huge income from the said business. For the 2nd defendant and his family members, the source of income is only from his proprietary concern i.e. Central Electricals. 17 O.S 5356/2008
e) The 2nd defendant further stated that the plaintiff is in the habit of filing false and frivolous suit against Jawaharlal and his legal heirs with a malafide intention to harass them in O.S.2063/1997, Writ petition No.26591/2004 etc. He also reiterated the plaint averments and stated that it is a matter of record in his written statement at para-9 to para-12.
f) He also further stated that infact in the income tax returns of the erstwhile firm filed by the plaintiff during the years 1980 onwards, only the name of the plaintiff and Jawaharlal were shown as partners and the name of the 1st defendant and other partners are not shown as partners of the firm. These facts have been suppressed by the plaintiff with an ulterior motive. The plaint averment that the business should be closed and final accounting should be taken is false and misleading, as there was no business of erstwhile 18 O.S 5356/2008 firm. The plaint averment to the effect that the business at old poor house was stopped is also false and that business was continued in the name and style Subhash Electricals and GSP Enterprises etc.
g) The 2nd defendant also stated that he has obtained sales tax registration on 18.12.2000 for his proprietary concern i.e. Central Electricals. Therefore, the 2nd defendant could not have promised that he will close the business and render the final account on or before 31.3.2008. The plaintiff is making false statement on oath before this Court. The claim of the plaintiff is hopelessly barred by time and also barred by limitation. In view of suppression of material facts, the plaintiff is not entitled for equitable relief of permanent injunction. This Court has no jurisdiction to try this suit. The suit is bad for non-joinder of necessary parties and mis-joinder of parties etc. The 19 O.S 5356/2008 Court paid by the plaintiff is highly insufficient. Accordingly prays for dismissal of the suit with costs.
6. Based on the above pleadings of the parties, this Court has framed the following issues and additional issue:
1. Whether the plaintiff proves that he is in the possession of Item No.2 of the schedule property?
2. Whether the plaintiff is entitled for the relief of permanent injunction as sought in the plaint?
3. Whether the plaintiff is entitled for the accounts from the 2nd defendant?
4. Whether suit is maintainable?
5. What order or decree?
Additional Issue:
1. Whether the plaintiff further proves that the 2nd defendant is not entitled to run the business under the name and style 20 O.S 5356/2008 Central Electricals in Item No.1 of the plaint schedule property subsequent to 31.3.2000?
7. In support of the case of the plaintiffs, the GPA holder of the deceased plaintiff is examined as PW.1 and got marked Ex.P.1 to P.3. On 17.11.2014, the District Registrar appeared before the Court and produced attested copies of the documents pertaining to partnership concern of the plaintiff and defendants and those documents are again marked through PW.1 as Ex.P.4 to P.9 and accordingly closed the evidence of the plaintiff.
8. The 2nd defendant is examined as DW.1 and got marked Ex.D.10 to D.15 and Ex.D.14(a). However Ex.D.1 to D.9 are marked in the cross-examination of PW.1 by confronting those documents and accordingly closed the evidence of 2nd defendant. Though the 1st defendant appeared through her Advocate and filed 21 O.S 5356/2008 written statement, but she failed to adduce any evidence.
9. During the pendency of the suit, plaintiff also died and as per the orders in I.A.8, his legal heirs were brought on record and accordingly cause title is amended and amended plaint is also filed.
10. On 7.8.2014 learned counsel for the 2nd defendant submits that the 2nd defendant has no additional written statement and on the same day, additional statement of the 1st defendant is taken as not filed.
11. Heard the arguments of both sides and perused the records.
12. Learned counsel for the 2nd defendant also relied upon the following decisions:
22 O.S 5356/2008
1. (1985) 2 Supreme Court Cases 14 Mir. Abdul Khaliq (Dead) by Lrs. Vs. Abdul Gaffar Sheriff (Dead) by Lrs.
2. AIR 1974 Supreme Court 1094 Saligram Ruplal Khanna and Anr. Vs. Kanwar Rajnath.
3. Extract of Article 5 of Limitation Act 1963.
4. Extract of Section 41(g) and 41(i) of the Specific Relief Act 1963.
Perused the decisions and also perused the records.
13. My findings on the above issues are:
Issue No.1: Negative.
Issue No.2: Negative.
Issue No.3: Negative.
Issue No.4: Negative Addl.Issue No.1: Negative.
Issue No.5: As per the final order for the following;
REASONS
14. Issue No.1 to 3 and Addl. Issue No.1: Since all these four issues are interlinked with each other 23 O.S 5356/2008 and require common discussion of facts, so they have taken together for common discussion to avoid repetition of facts.
15. When the plaintiff pleads that he is in possession of the second item of the plaint schedule property and when the plaintiff further pleads that the 2nd defendant is not entitled to run the business in the name and style 'Central Electricals' in item No.1 of the schedule property subsequent to 31.3.2000, the initial burden is always on the plaintiff to prove issue No.1 and additional issue No.1. Similarly when the plaintiff sought the relief of permanent injunction and when the plaintiff sought for accounts from the 2nd defendant, he has to prove issue Nos.2 and 3 also.
16. In support of the case of the plaintiff, the power of attorney holder of the plaintiff is examined as PW.1 i.e. plaintiff No.1(c) and got marked Ex.P.1 to P.9. 24 O.S 5356/2008
17. Ex.P.1 is the General power of attorney executed by the deceased plaintiff Mr. Udairaj in favour of his son authorising him to do all deeds and things shown in the GPA Ex.P.1 and also authorised his son to depose in this case. The executant of GPA by name Udairaj is no more and he died on 13.5.2014. So from this, it is crystal clear that soon after the death of executant of Ex.P.1, Ex.P.1 ceases to operate from the date of death of Udairaj on 13.5.2014. It is also in view of the fact that PW.1 is cross-examined on 4.12.2014, which is much subsequent to the execution of Ex.P.1. Though Ex.P.1 is styled as General power of attorney, but the contents of Ex.P.1 and the intention of the executant was clear that Ex.P.1 is only a special power of attorney authorising the son of the plaintiff to depose in this case and for other purpose shown in Ex.P.1. It is also worth to mention that PW.1 deposed as GPA holder, but not in his individual 25 O.S 5356/2008 capacity. This is also in view of the fact that legal heirs of the deceased plaintiff appears to be not partners at Central Electricals. So, from this, it is also clear that the suit must fail on technicalities.
18. Ex.P.2 is Form-A i.e. Certificate of Registration issued from the office of the Registrar of Firms maintained Under Section 59 of the Indian Partnership Act 1932, which discloses the names of the partners and registration of the firm was from 23.12.1960 and the place of business is shown as No.21, OPH road, Bengaluru. From Ex.P.2, it is also clear that Hiralal, Jawaharlal (who is none other than the father of the 2nd defendant), Udairaj- the deceased plaintiff in this case, Mohanlal and Bhawarlal entered partnership firm with effect from 1.4.1960. However, Smt.Sajjan Kanwar, who is none other than the wife of late Mohanlal and H.Prakash Chand joined the partnership 26 O.S 5356/2008 firm with effect from 29.7.1967. Ex.P.2 also discloses that the other place of business of the partnership concern is at E-112, Chickpet, Bengaluru.
19. Ex.P.3 is the death certificate Jawaharlal, who is none other than the father of the 2nd defendant in this case, who died on 22.3.2000.
20. Ex.P.4 is the attested copy of the partnership deed dated 2.11.1960, which is the first partnership deed came into existence between the partners 1 to 5 as shown in Ex.P.2 and partnership firm was established as per the terms and conditions mentioned therein. This document is an incomplete document consisting of only three pages.
21. Ex.P.5 is one more partnership deed came into existence on 15.4.1965 between Hiralal, Jawaharlal, Udairaj and Mohanlal and the main business of the 27 O.S 5356/2008 partnership concern is to carry on the business in electrical goods under the name and style 'Central Electricals'. Condition No.(j) indicates the fact that in case of death of partners, the partnership shall not be deemed to be dissolved and the same shall be continued with the remaining partners till the end of that accounting year with the legal heirs of such deceased partners etc.
22. Ex.P.6 is reconstituted partnership deed dated 16.1.1968, which appears to be last partnership deed, came into existence between the parties, wherein this partnership came into existence between Hiralal, Jawaharlal, Udairaj, Sajjan Kanwar and Parakash Chand. This document also indicates that the head office should be at No.459, OPH road, Cantonment, Bengaluru and branch office at No.112, Chickpet, Bengaluru.
28 O.S 5356/2008
23. Partnership deeds Ex.P.5 and P.6 also indicate the fact that in case of death of any partners, partnership business shall not be deemed to be dissolved, but shall be continued with the remaining partners till the end of that accounting year with the legal heir or legal heirs of said deceased partners.
24. Ex.P.7 is the certificate issued by Registrar of Firms and the firm was registered on 23.12.1960 and the firm name is Central Electricals and place of business is at No.21, OPH Road, Bengaluru, which also indicates the very same fact as shown in Ex.P.2.
25. Ex.P.9 is Form-D i.e. Memorandum of acknowledgement receipt of document issued by Registrar of Firms on 5.3.1966. Ex.P.8 is Form No.1 issued by the Registrar of Firms indicating the names of partners, which is issued in pursuance of the first partnership deed Ex.P.4.
29 O.S 5356/2008
26. The defendant on the other hand relied upon Ex.D.1 to D.15.
27. Ex.D.1 is the certified copy of the plaint in O.S.4091/2009 filed by one Nagaraj against Udairaj the plaintiff in this case seeking eviction of the plaintiff in that suit from the suit property, which is none other than the premises No.459, OPH road, Bengaluru i.e. Old premises. It appears that the son of the plaintiff by name Subhash Raj- plaintiff No.1(b) is now doing very same business. Ex.D.2 is the certified copy of the compromise petition filed in O.S.4091/2009, wherein the plaintiff and defendant agreed and filed the compromise petition, wherein the said Udairaj agreed to quit and vacate the premises, wherein he was a tenant on or before 30.11.2010 and accordingly the said suit came to be decreed in terms of the compromise petition. Ex.D.3 is the certified copy of the order sheet in O.S.4091/2009.
30 O.S 5356/2008
28. Ex.D.4 to D.6 in this are important documents, which throws much light on the defence of the 2nd defendant. Ex.D.4 is the Registration Certificate issued from Commercial Tax Department in favour of J.Ashok Chand- the 2nd defendant in this case permitting the 2nd defendant to commence his business and to carry on the business under the name and style Central Electricals as a proprietary concern and this certificate was issued with effect from 18.12.2000. So from this, it is crystal clear that any business that is being carried on by the 2nd defendant in premises No.234, Garudachar complex, Chickpet, Bengaluru is proprietary concern of the 2nd defendant with effect from 18.12.2000.
29. Ex.D.5 is again Registration Certificate issued from the Commercial Tax Department, which is a godown certificate again issued in the name of the 2nd 31 O.S 5356/2008 defendant J.Ashokchand to have his place of business at No.234, Garudachar Complex, Bengaluru and this is shown to be the proprietary concern of the 2nd defendant with effect from 18.12.2000 and address of the godown is shown as No.4, A.M.Lane, Chickpet cross, Bengaluru with effect from 18.12.2000. This document again indicates the fact that the 2nd defendant is doing his business in proprietary concern under the name and style M/s. Central Electricals, but not under the partnership concern.
30. Ex.D.6 is again certificate issued from Commercial Tax Department in favour of 2nd defendant Ashokchand to do his business in proprietary concern under the name and style Central Electricals, which is in the same name Central Electricals and in the same premises No.234, Garudachar Complex, Chickpet, Bengaluru and this 32 O.S 5356/2008 certificate was issued for the period of one year and godown address is also shown as No.4, A.M.Lane, Chickpet Cross, Bengaluru with effect from 18.12.2000.
31. Ex.D.7 and Ex.D.15 both are one and the same documents, which are certified copies of the orders passed in O.S.2063/1997 dated 15.6.2003 filed by Udairaj- the deceased plaintiff in this case against the City Corporation and Jawaharlal- the father of the 2nd defendant and one Rameshchand, wherein I.A.2 filed by the said Udairaj Under Order 39 Rule 1 and 2 CPC came to be dismissed and consequently the interim order of temporary injunction granted stands vacated.
32. Ex.D.8 is the certified copy of the memo filed in O.S.2063/1997 again filed by Udairaj against Bengaluru City Corporation, wherein the said suit in O.S.2063/1997 got dismissed by filing the memo. 33 O.S 5356/2008 Ex.D.9 is the certified copy of the writ petition filed by the very same Udairaj against State of Karnataka and others, which again came to be got dismissed by filing a memo.
33. The documents Ex.D.7 to D.9 have been produced by the 2nd defendant just to establish before the Court that the deceased plaintiff Udairaj was chronic litigant and was in the habit of filing case against family members of 2nd defendant.
34. Ex.D.10 is the VAT Registration Certificate issued from Commercial Tax Department to 2nd defendant permitting the 2nd defendant to impose VAT in his business with effect from 1.4.2005.
35. Ex.D.11 is the certified copy of the objection statement filed in O.S.4706/1998, wherein that suit was filed by Jawaharlal against Udairaj. Ex.D.12 is the 34 O.S 5356/2008 certified copy of the decree in O.S.1839/2005 filed by one P.Vijayaraj Lunia against J.Ashokchand, wherein that suit was decreed against the defendant therein and the defendant therein was directed to quit, vacate and deliver the vacant possession of the suit property therein.
36. Ex.D.13 is the letter given by the 2nd defendant in this case to Assistant Commissioner of Commercial Taxes intimating the concerned authority that he has surrendered the original godown certificate as a building has been vacated and demolished as per the Court order dated 6.8.2008 and accordingly requested the concerned authorities to cancel the godown certificate as requested in Ex.D.13.
37. Ex.D.14 is an important document, which is dated nil and this letter has been issued by one of the legal heirs of deceased plaintiff by name Subhash Raj 35 O.S 5356/2008 addressed to the 2nd defendant in this case and accordingly the signature of the Subhash Raj is also marked as Ex.D.14(a). This document has been produced by the 2nd defendant for the limited purpose to establish before the Court that as per the oral agreement entered into between Udairaj and 2nd defendant, son of the deceased plaintiff by name Subhashraj started his business at No.459, OPH road, Bengaluru, which is the very same place where Central Electricals was established initially and 2nd defendant started his independent propriety concern at No.234, Garudachar Complex, Chickpet, Bengaluru and godown at No.4, A.M.lane, Chickpet cross, Bengaluru-53. Ex.D.14 has not been seriously questioned in the cross-examination of DW.1. There is no whisper anything about Ex.D.14 in the plaint filed by the deceased plaintiff. This document also establishes the fact that the son of the deceased 36 O.S 5356/2008 plaintiff by name Subhash Raj taken possession of the premises No.459, OPH road, Bengaluru, where initially Central Electricals started and doing his proprietary concern in the very same premises, but in the name and style Subhash Electricals and similarly the 2nd defendant stated his business as per proprietary concern, but in the name and style Central Electricals at No.234, Garudachar Complex, Chickpet, Bengaluru. Ex.D.14 in my opinion substantiates the defence of the 2nd defendant as per the defence taken at para-3 and para-5 of the written statement.
38. On careful perusal of the documentary evidence produced by the 2nd defendant as per Ex.D.4 to 6 clearly establishes the fact that he was carrying on his business under the name and style Central Electricals in the capacity as proprietor of the firm with effect 18.12.2000. So from these documents, it is crystal 37 O.S 5356/2008 clear that the 2nd defendant is entitled to run his business under the name and style Central Electricals i.e. in item No.1 of the plaint schedule property with effect from 31.3.2000 (as per Ex.D.4 to D.6, he was authorised to do business as proprietor with effect from 18.12.2000).
39. The GPA holder of the plaintiff has filed his chief examination affidavit, wherein he has reiterated the plaint averments. However PW.1 in the cross- examination admitted that Ex.P.4 is an incomplete document and also admitted that in the partnership dated 10.1.1968 as per Ex.P.6, plaintiffs 1(a) to (c) are not the partners. He also admitted the fact that after the partnership deed dated 10.1.1968 as per Ex.P.6, the partners have not entered into any other partnership deed. He also admitted the fact that the partners in Ex.P.6 i.e. Hiralal, Jawaharlal and Prakash Chand are no more and Udairaj is also no more. 38 O.S 5356/2008
40. A specific suggestion is made in his cross- examination by suggesting that Udairaj and Sajjan Kanwar have taken the assets and partitioned between themselves in respect of the partnership concern dated 31.3.2000 and this suggestion is denied by PW.1 in his cross-examination. It is worth to mention that Ex.D.14 letter is written by the brother of PW.1 and though Ex.D.14 was written by one Subhashraj, he has not disclosed as to from which date he started his business concern at No.459, OPH road, Bengaluru under the name and style Subhash Electricals. Though there is no document to evidence with regard to dissolution of partnership, but from the conduct of the partners, it can be inferred that the son of the deceased plaintiff has started independent business at No.459, OPH road, Bengaluru under the name and style Subhash Electricals in his individual capacity as proprietary concern and similarly the 2nd 39 O.S 5356/2008 defendant also started independent business, but under the same name and style Central Electricals, which was existed earlier at No.234, Garudachar Comple, Chickpet, Bengaluru with effect from 18.12.2000. PW.1 in his cross-examination admitted that he is also proprietor of GSB Enterprises, but goes to the extent of saying that he was doing that business at some other place and now that business is closed. But he goes to the extent of saying that he do not remember the door number where he was doing his business under the name and style GSB Enterprises. This also indicates the fact that he has suppressed the material fact and deposed before this Court by suppressing all the material facts.
41. A specific suggestion is also made in the cross- examination of PW.1 by suggesting that from 18.12.2000, the 2nd defendant is doing proprietary 40 O.S 5356/2008 concern business at No.234, Garudachar Complex, Chickpet to which he has pleaded his ignorance and this suggestion is not specifically denied by PW.1 in his cross-examination. One more suggestion is also made in his cross-examination by suggesting that the 2nd defendant is using the second item of the plaint schedule property as a godown to which PW.1 goes to the extent of saying that the second item of the property is being used as godown in respect of the partnership concern. This also in a way clearly indicates the fact that on account of the oral understanding between the son of the plaintiff and the 2nd defendant, both are doing their proprietary concern business at two different places. This in my opinion, substantiates the defence of the 2nd defendant as stated in para-3 and para-5 of the written statement.
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42. Very strangely PW.1 in his cross-examination admitted that the 2nd defendant has registered his firm before the Commercial Tax Office, Karnataka and obtained Registration Certificates and those documents have been admitted by PW.1 in his cross- examination as per Ex.D.4 to 6. He also specifically admitted in his cross-examination that he has no impediment to examine his brother Subhashraj as his witness, but PW.1 failed to examine his brother Subhashraj, who infact written the letter Ex.D.14. Non examination of Subhashraj in my opinion is also fatal to the case of the plaintiff.
43. The 2nd defendant on the other hand is examined as DW.1, wherein virtually he has reiterated the written statement averments. DW.1 in his chief examination affidavit at para-3 goes to the extent of saying that with the consent of the remaining partners 42 O.S 5356/2008 and legal representatives of late Jawaharlal, the son of the plaintiff Mr.Subhashraj took exclusive possession of the property bearing No.459, Old No.21, OPH road, Bengaluru and carrying on his business under the name and style Subhash Electricals and similarly he started his business as a proprietary concern under the name and style Central Electricals at bearing No. 234, Garudachar Comple, Chickpet, Bengaluru and also the godown at No.4, A.M.lane, Chickpet, Bengaluru. But he has not produced any documents. But as discussed earlier, the same can be gathered from the conduct of the parties and the event that occurred subsequent to issuance of documents as per Ex.D.4 to D.6 by the competent authorities.
44. DW.1 in his cross-examination admitted that Jawaharlal, who is the father of the 2nd defendant died 43 O.S 5356/2008 on 22.3.2000. DW.1 in his cross-examination admitted that with regard to Central Electricals partnership firm is concerned, the same is not dissolved as on today. A suggestion is also made in the cross-examination of DW.1 by suggesting that whether he has obtained any consent of the other partners to carry on the business under the name and style Central Electricals and to use the name of goodwill of the firm and assets, to which DW.1 has stated that he has obtained oral permission from the other partners. Similarly one more suggestion is made in the cross-examination of DW.1 by suggesting that whether DW.1 has obtained consent of other partners to convert partnership concern into a proprietary concern to which DW.1 has stated he has not obtained permission, but only obtained oral permission.
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45. Admittedly it is an undisputed fact that initially partnership firm was established in the year 1960 i.e. on 2.11.1960 at OPH Road, Bengaluru. Thereafter a branch office was also opened at No.234 (E-112), Garudachar Complex, at Chickpet, Bengaluru. The partnership firm was reconstituted on 15.4.1965 and also on 16.1.1968 and in the said process, some of the partners retired, some of the partners died and some of the partners have been newly inducted as per the recital found in Ex.P.2, Ex.P.4 to Ex.P.8.
46. It is the specific case of the plaintiff that the partnership firm i.e. Central Electricals should be closed or dissolved as on 31.3.2000 after the death of Jawaharlal.
47. The evidence available on record discloses the fact that the son of the plaintiff by name Subhashraj so also the 2nd defendant started their independent 45 O.S 5356/2008 business. Admittedly Ex.D.4 to D.6 are the public documents and those documents have not been questioned by the plaintiffs or any other partners. No suit has been filed by the plaintiffs or other partners seeking dissolution of the partnership and on the other hand, the plaintiffs, it appears, adopted shortcut method of restraining the 2nd defendant permanently from running the business under the name and style Central Electricals in item No.1 of the suit property and from utilizing the second item of the suit property as godown and from restraining the 2nd defendant from using the assets and goodwill of the firm and also seeking direction to the 2nd defendant to render the accounts of the business that he has done up to date at the suit property till the closure of the business etc. to which plaintiffs are not legally entitled to.
48. Though the plaintiffs have contended in para-5 of the plaint that in view of condition No.(j) found in the 46 O.S 5356/2008 partnership deed, after the death of Jawaharlal on 22.3.2000, partnership stood dissolved on 31.3.2000. When such being the case, the plaintiffs ought to have filed this suit within the period of three years as per Article 5 of the Limitation Act i.e. three years from the date of dissolution. As such the plaintiff ought to have filed this suit within three years from 2000 i.e. this suit ought to have been filed in 2003 as against the same, this suit has been filed in 2008. So, in this view also, this suit is barred by limitation.
49. Written statement averment filed by the 2nd defendant at para-4 has not been rebutted by the plaintiff by filing rejoinder or otherwise, wherein the 2nd defendant has discloses many of the documents said to have been obtained by the 2nd defendant to carry on his proprietary concern under the name and style Central Electricals.
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50. The evidence available on record also discloses the fact that the plaintiff has suppressed many of the material facts and has not approached this Court with clean hands and as such the legal heirs of the plaintiff are not entitled for equitable relief of permanent injunction. So, from the material available on record, the plaintiffs thoroughly failed to prove issue Nos.1 to 3 and Additional Issue No.1. Accordingly, I answer issue Nos. 1 to 3 and Additional Issue No.1 in the 'negative'.
51. Issue No.4: Plaintiffs failed to prove that the 2nd defendant is not entitled to run the business under the name and style Central Electricals at item No.1 of the suit property subsequent to 31.3.2000. Plaintiffs also failed to prove that he is entitled for the relief of permanent injunction. Plaintiffs also failed to prove that he is entitled for accounts from the 2nd defendant. 48 O.S 5356/2008 In addition to all these, the suit of the plaintiff is also barred by limitation. The plaintiff has not approached this Court with clean hands. The documents produced by the 2nd defendant as per Ex.D.4 to D.6 clearly demonstrate the fact that the 2nd defendant is doing his business as proprietary concern.
52. So in view of all these, this suit is not maintainable and accordingly I also answer issue No.4 in the 'negative'.
53. Issue No.5: In view of the findings on issue No.1 to 4 and additional issue No.1, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendant is hereby dismissed.49 O.S 5356/2008
Taking into consideration of the relationship of the parties, there is no order as to costs.
(Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 31st day of October, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: Prem Chand List of documents marked for the plaintiff:
Ex.P.1: Power of attorney. Ex.P.2: Form No.A issued by the Registrar of Firms. Ex.P.3: Death certificate Jawaharlal. Ex.P.4: Copy of Partnership deed dated 2.11.1960. Ex.P.5: Copy of partnership deed dated 15.4.1965. Ex.P.6: Copy of partnership deed dated 10.1.1968 Ex.P.7 & Attested copies of Form No.1 and Form-D. P.8: Ex.P.9: Progress report of the Bank.
List of witnesses examined for the defendants:
D.W.1: J.Ashok Chand.50 O.S 5356/2008
List of documents marked for the plaintiff:
Ex.D.1: Certified copy of the plaint in O.S.4091/2009. Ex.D.2: Certified copy of compromise petition filed in O.S.4091/2009.
Ex.D.3: Certified copy of order sheet in O.S.4091/2009. Ex.D.4 & Registration Certificates registered in D.5: Commercial Tax Office.
Ex.D.6: Registration certificate issued from Central Tax Office.
Ex.D.7: Certified copy of the orders passed on I.A.2 in O.S.2063/1997.
Ex.D.8: Certified copy of memo filed in O.S.2063/1997. Ex.D.9: Certified copy of the writ petition. Ex.D.10: VAT Registration certificate. Ex.D.11: Certified copy of the written statement filed in O.S.4706/98.
Ex.D.12: Certified copy of the decree in O.S.1839/2005. Ex.D.13: Letter written to Asst. Commissioner of Commercial taxes (subject to objection). Ex.D.14: Letter written by Subhas Raj. Ex.D.15: Certified copy of the order passed on I.A.2 in O.S. 2063/1997.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.