Madras High Court
S. Sivapalani vs S. Muruvappan And M. Selvaraj Mudaliar on 20 February, 2002
Equivalent citations: (2002)2MLJ239
JUDGMENT A. Ramamurthi, J.
1. The first defendant in O.S.No.189 of 2001 on the file of Principal Subordinate Judge at Pondicherry has preferred the present appeal aggrieved against the order made in I.A.No.1238 of 2001 dated 21.06.2001.
2. The case in brief is as follows:- The plaintiff filed petition under Order 39 Rule 1 and Section 151 of Civil Procedure Code to pass an interim injunction restraining the 1st defendant and his men from in any way interfering with the day-to-day routine works connected with the control and management of the partnership business carried on under the firm name "MURUGANS" and the premises bearing door No.265, Jawaharlal Nehru Street, Pondicherry till the disposal of the suit. During 1978, the father / second defendant started a joint family business in textiles by name "Sarada Silk House" in partnership. During 1981, the 2nd defendant entered into partnership with the plaintiff and started another textile concern "Sarathas" in Jawaharlal Nehru Street, Pondicherry. The business was very successful and lucrative because of his sincere involvement. In 1984, all the brothers were inducted into the firm "Saradhas". By doing good business, many properties were purchased in the joint names of the plaintiff and his brothers. The 1st defendant, brother of the plaintiff was causing loss to the business. The 2nd defendant in consultation with the auditors advised the first four sons to get separated from the parent establishment "Sarathas" and start new business. Two Memorandum of Understanding deeds, one in 1993 and another in 1994 were executed between the partners of the parent establishment. The first four sons came out of the firm "Saradhas" and last two sons namely, Mohanasundaram and Saravanan are the partners running the parent establishment with the father. On the advice of the 2nd defendant, the plaintiff reluctantly accepted the 1st defendant as his partner and the business was started under the name "MURUGANS" on 06.03.1995. The properties bearing door Nos.10 and 265, Jawaharlal Nehru Street were allotted to the plaintiff and the 1st defendant jointly and the property bearing door No.265 was taken as partnership property. A showroom consisting of basement, ground floor, first floor and second floor was built over the said property. The MURUGANS showroom housed in a decorated four storeyed building with updated stock was a new kind in Pondy, different from the then existing textile shops. It became a popular and household name in and around the houses of Pondy State. The plaintiff was necessitated to go out of station very often to make purchase of stocks. As the business required large number of persons to supervise, the 1st respondent brought in his father-in-law for assistance. The 1st respondent also took initiative and follow up action to borrow more monies for the business and obtained overdraft facility from Nedungadu Bank.
3. During Deepavali season in 1996, difference of opinion between the plaintiff and the 1st respondent sprang up due to the misconduct of the 1st defendant's father-in-law and brother-in-law. They removed costlier variety of dress materials for their personal use. They also obtained cash from the persons known to them, brought them to the business premises and gave them textile goods equivalent to the money taken by them, but on records they showed the same as credit sales. The 1st defendant along with his brother-in-law formed a group and started teasing the plaintiff before others. They also removed some of the employees who refused to behave against the plaintiff in the manner they instructed. Originally the bank account was operated by either of the partners. The 1st defendant with the connivance of the Bank Manager made the cheques dishonoured that were issued by the plaintiff to third parties. The cash representing the sales during the absence of the plaintiff would not tally. If questioned, the 1st respondent would show a hard face and leave the place. In February 1997, the 1st respondent reported theft of cash of Rs.1,40,000/= . On probing, it was found that the 1st respondent, his father-in-law and his brother-in-law themselves had removed the cash by using the staff employed from Nellikuppam.
4. During June-July 1997 the 2nd defendant suggested that since the business requires more persons to supervise and the 1st defendant having such man power, it was better that the business given to him and the plaintiff can retire from the partnership. Without taking accounts and without evaluating the business values, the 2nd defendant suggested that he should accept payment of Rs.2 crores in full and final settlement and leave the business of the 1st defendant. The 2nd defendant being the father of the plaintiff and further since the partnership business was started upon his guidance and authority, he had to listen to his advice as proposed by his father. The 1st defendant required six months time to pay the sum of Rs.2 Crores. In the meantime, the attitude of the 1st defendant's father-in-law and his brother-in-law never changed. There was rampant swindling of materials and cash which drained the business. The 1st defendant expressed inability to pay the agreed sum of Rs.2 crores in February, 1998. Thereafter, the 2nd defendant suggested the alternative that the plaintiff should agree to pay Rs.2 crores to the 1st defendant and take the business to themselves. He expressed disbelief as how the plaintiff could pay such huge sum when the 1st defendant himself was not able to pay. The 2nd defendant suggested that let Rs.2 crores be a tentative amount and be paid in the joint names of both the respondents so that if on a later date it would be found as per accounts that the first defendant would be entitled to any amount less than Rs.2 crores, then the 2nd defendant would see that such difference in the amount returned to him. Since the father prevailed upon him and suggested the alternative, he had to believe to the alternative suggestion without even taking any other third parties opinion and even without evaluating the business values. The defendants obtained Rs.30 lakhs in single payment from the firm by Banker's pay order on 02.03.1998 and further obtained 34 cheques payable each at Rs.5 lakhs every month from April 1998 to January 2001 on the understanding that every month when the plaintiff would tender pay order for Rs.5 lakhs, the respective cheque for Rs.5 lakhs had to be returned to him. He was making monthly payment of Rs.5 lakhs and was obtaining return of the respective cheque. The position of the business was not as good as he expected and he had to borrow money. He was able to pay for 13 months only amounting to Rs.65 lakhs and totally paid Rs.95 lakhs. The 1st defendant after stoppage of payments from May 1999 started behaving violently. The 1st defendant removed valuable silk sarees and dress materials. One day he removed for himself the close circuit camera and accessories, accounts books, computer with accessories, etc. The 1st defendant also personally met various suppliers of the firm and prevented them from supplying goods on credit basis. He was bringing rowdies and scared the customers. He made unparliamentary speeches at the customers and drive them away from making purchases.
5. The wife of the plaintiff has been assisting him in the management of the business. Nedungadi Bank also filed a suit on the Debt Recovery Tribunal, Chennai against them and the 1st defendant remained ex parte. However, to save the firm from being appointed with the receivership, an amount of Rs.30,000/= per week is being paid to the Bank by the plaintiff. The conduct of the 1st defendant became worse day by day when he started teasing and abusing his wife who was assisting him in the business. The 1st defendant produced before the Bank Manager all the remaining 21 cheques on 26.06.2000 and reported that they would present them for collection on 27.06.2000. The 1st defendant presented 5 cheques for collection and obtained dishonour memo from the Bank and filed criminal complaints against the firm by impleading the plaintiff in STR No.5390 to 5394 of 2000 on the file of Judicial Magistrate-I, Pondicherry. One day, the 1st defendant threw a big almonard pedestal fan from the 2nd floor to the ground floor to scare the customers so that the plaintiff would come down to pay him more money. The 1st defendant also warns the customers to leave the place as there would be a big gallatta. On 15.03.2001 the 1st defendant opened the cash chest and removed bank pass books, cheque books, ration card and the cash available together with some invoices. He has been creating unpleasant atmosphere in the business premises and by so doing, he is driving the customers away. In the 4 storeyed showroom, now sale is done only in two floors. Unless the business is allowed to run peacefully, the firm will suffer heavy loss and ultimately become bankrupt. If the 1st defendant would be injected from interfering with the day-to-day business of the firm, the plaintiff has the confidence to pay all the liabilities of the firm and the situation will even become brighter for him. Being a partner the 1st defendant should not hinder the business of the firm and hence the petition.
6. The defendants filed a counter and denied the various averments. They also denied that the father-in-law and brother-in-law of the 1st defendant removed costly variety of dress materials for their personal use, obtained cash from the persons known to them, brought to them to the business premises and gave them textile goods equivalent to the money taken by them and on record they had shown the same as credit sales. They also denied the allegation that the 1st defendant on 15.03.2001 opened the cash chest and removed bank pass books, cheque books, ration card and the cash available together with some invoices. During 1993, it was found in the partnership firm "Sarathas" that the plaintiff had misappropriated enormous money of the firm for his personal use and had not accounted for the same. From the inception of the partnership, the initial contribution was fixed by the plaintiff as he was having only Rs.10 lakhs and requested his father to give Rs.10,50,000/=. Even though the 2nd defendant was not shown as partner in the concern, he had agreed for the execution of the partnership deed between the plaintiff and the 1st def3endant. The business is run in door Nos.263 to 265 of Jawaharlal Nehru Street, Pondicherry under the name and style of 'Murugans' under the sub heads of 'Murugan's Readymades, Murugan Textiles and Murugan Textiles in the same premises in the basement, first floor and second floor respectively. The plaintiff's wife and his brother-in-law in collusion with the plaintiff unnecessarily intervened in the business activities and used to receive huge money from the cash counter and used the same for purchasing properties and for their personal needs. The plaintiff had taken the charge of Cashier as prestige issue and further the plaintiff had informed the defendants that his wife wanted to sit as cashier in the shop and he will pay the monthly profit of Rs.2,50,000/= to each defendants per month. Believing the words, they handed over the cashier seat to the plaintiff's wife and started administering the day to day works, supervising the sales, go through the accounts and other business activities. Thereafter, the plaintiff and his wife started manipulating the accounts without their knowledge. They started fictitious concerns by name "New Murugans" maintained a secret and separate account, purchased and sold the materials on the name of the said fictitious concern. The plaintiff's wife claims to be the proprietrix of the alleged concern by maintaining a current account and also a personal account at the Indian Bank. They have been remitting the entire collection of "Murugans" in the personal account of the plaintiff and the current account of the alleged "New Murugans". The plaintiff has also not come forward to settle the approximate monthly income to them as per the understanding. Due to the consequent dishonour of the cheques, they were forced to give private complaints under section 138 of Negotiable Instruments Act. They also came to know that the plaintiff had not paid the overdue amount to Nedungadi Bank, Pondicherry, the income tax for the business and other payments. The turn over of the concern during the year 1997-98 and 99 is approximately at each year Rs.4 crores. The plaintiff wantonly undervalued the suit to avoid from paying the correct court fee. The plaintiff has not come forward with clean hands before this Court and wantonly concealed several facts. The plaintiff has no prima facie case and the balance of convenience is only in favour of the defendants.
7. The plaintiff himself had admitted in the affidavit that the defendants are also in the joint possession and enjoyment of 'A' schedule property dealing with the day-to-day activity of the business. He cannot claim either interim injunction or permanent injunction as against them. The plaintiff is concentrating on grabbing the partnership money by way of converting the same into the new account. The act of the plaintiff and his wife by creating a bogus account is not only cheating the defendants but also the Government machineries. They further stated that till today they are alone supervising the staff and the day-to-day affairs in 'A' schedule mentioned property and never demanded the plaintiff to retire from the partnership by suggesting the plaintiff to accept payment of Rs.2 crores in full and final settlement. The alleged banker's pay order on 02.03.1998 was the accrued income, share of the defendants for the month of September 1997 to February 1998 and not as alleged as the initial payment for the full settlement. No such letter dated 23.05.2000 was received by them. 'A' schedule mentioned property is a partnership business and the 1st defendant is responsible for each and every profit or loss and no individual with sound mind would destroy his business or chase away customers or to destroy the building jointly constructed by him. The 1st defendant is not having any other shop except this shop. If the defendants are restrained, the plaintiff would put the concern in heavy loss which cannot be compensated in any manner and the 1st defendant also would be responsible for third parties. The suit reliefs and the pleadings are contradictory and not maintainable. A person cannot be injected from his working place when he is a partner. There is no pre-suit notice prior to the filing of the suit. The suit as well as the applications were filed with a sole reason to give mental torture to the defendants and to divert the criminal cases against him. The allotment of cashier seat to the plaintiff's wife only in the category of the staff of the concern and not in the category of the partner's wife, she can be removed from that seat at any time considering the welfare of the firm and there may not be any order of injunction for keeping her in the seat.
8. The plaintiff filed a reply affidavit denying the various averments made in the counter affidavit.
9. The learned Subordinate Judge after hearing the parties and on the basis of the documents, allowed the application and aggrieved against this, the 1st defendant has come forward with the present appeal.
10. Heard the learned counsel for the parties.
11. The points that arise for consideration are (1)Whether the petitioner / plaintiff has got prima facie case and the balance of convenience is in his favour?
(2)Whether the order passed by the court below is proper and correct ?
(3)To what relief ?
11. Points: It is admitted that the plaintiff and the 1st defendant are the brothers and the 2nd defendant is their father. It is also not in dispute that the property bearing door No.265, Jawaharlal Nehru Street was taken as partnership business. The plaintiff and the 1st defendant are partners in doing the business in textiles under the name and style MURUGANS at Pondicherry in door No.265. A showroom consisting of basement, ground floor, first floor and 2nd floor was built over the property and it appears to be a popular shop in Pondicherry State. According to the plaintiff, during Deepavali season in 1996 difference of opinion arose among them due to the misconduct of the father-in-law and brother-in-law of the 1st defendant alleging that they have removed costlier varieties of dress materials as well as cash. Due to the misunderstanding between the brothers, it appears that there was a suggestion by the 2nd defendant directing the 1st defendant to pay a sum of Rs.2 crores to the plaintiff, so that he can retire from the partnership. After six months, the 1st defendant is said to have pleaded his inability and therefore, the 2nd defendant suggested to the plaintiff to pay Rs.2 crores to the 1st defendant and take the business from themselves. It is not in dispute that the plaintiff paid Rs.30 lakhs in single payment on 02.03.1998. 34 cheques payable each at Rs.5 lakhs every month fromApril 1998 to January 2001 were also issued on the understanding that every month when the plaintiff would tender pay order for Rs.5 lakhs, the respective cheque for Rs.5 lakhs had to be returned to him. Accordingly, he has made payment at Rs.5 lakhs for 13 months amounting to Rs.65 lakhs. Totally the plaintiff had parted with a sum of Rs.95 lakhs, but stopped payment of the further amount. It is only because of this, according to the plaintiff, the 1st defendant removed valuable silk sarees dress materials, close circuit camera and accessories, account books, etc. Moreover, the 1st defendant also personally met various suppliers of the firm and prevented them from supplying goods on credit basis and used unparliamentary words against the wife of the plaintiff, who was working as a Cashier and looking after the business. The 1st defendant also presented 5 cheques given by the plaintiff for collection in the bank and as they were dishonoured, filed criminal complaints under section 138 of Negotiable Instruments Act and they are admittedly pending in STR.No.5390 to 5394 of 2000 on the file of Judicial Magistrate I, Pondicherry. Unless and until the 1st defendant is restrained from interfering with the day-to-day business of the firm, the plaintiff cannot carry on the business and he may not be in a position to clear the loan obtained from the bank and others.
12. The defendants filed a counter denying the averments made by the plaintiff. However, the court below based upon the documents and after hearing the parties, allowed the application filed by the plaintiff and granted an order of injunction. Aggrieved against this, the 1st defendant has come forward with the present appeal. Learned counsel for the appellant / 1st defendant mainly contended that the issue before the court below is when the dissolution of the partnership firm is sought for, whether it would be open for one partner to carry on business in exclusion of the other partners. There is also provision for arbitration under the partnership agreement. Moreover, there had been a settlement of dispute between the parties, in which the plaintiff agreed to pay a sum of Rs.2 crores to the 1st defendant. As a matter of fact, a sum of Rs.95 lakhs has been paid and what remains to be paid is only Rs.1,05,00,000/=. Ignoring the said fact and compromise reached between the parties, the present suit has been filed for dissolution of the partnership firm as well as injunction. The plaintiff is disentitled to claim the relief in equity as the plaintiff had not come to court with clean hands. There cannot be an order of injunction as against the other partners in view of the fact that one is the agent of others and, as such, there cannot be any injunction as against the other partners from participating in running of the business. The plaintiff having opted for dissolution of partnership firm and sought for rendition of profit and loss account of the business of the firm shall not be entitled to run the business since the affairs of partnership will come to an end the moment one partner desires to disassociate himself from the business of the partnership firm and the running of the business is outside the purview. Section 41 of the Specific Relief Act has not been considered. When an alternative, effective and efficacious relief is available, the litigant can only seek for that relief in law and cannot seek for mandatory injunction directing the appellant to return of cheques which have been issued by the 1st respondent for legally enforceable debt. The plaintiff has no prima facie case and the balance of convenience is not in his favour. When the partnership is at will, the moment the suit for dissolution and rendition of accounts has been filed it may not be proper to allow the parties to do business. Now, the plaintiff is trying to wriggle out of contract and avoid the payment of money to the appellant.
13. Learned Senior Counsel for the plaintiff mainly contended that the order passed by the court below is proper and correct in the given circumstances. Even assuming that there was a compromise between the parties, whereby the plaintiff agreed to give Rs.2 crores and the 1st defendant having received a sum of Rs.95 lakhs, the only remedy available to him is to proceed against the plaintiff for recovery of the amount and not coming to the shop and interfering in the day-to-day affairs of the company and also preventing the customers and teasing the wife of the plaintiff, who was working as a Cashier. There is already a liability on the part of the plaintiff to Nedungadi Bank and proceedings are pending before the Debt Recovery Tribunal and because of this, the plaintiff is paying Rs.30,000/= per week to settle the liability. No doubt, new account has been opened in the name of "New Murugans"; but whatever business carried on in the shop MURUGANS alone are dealt with in the new account and there is no reason to suspect or to secrete any income from the reach of other persons. Since the suit has been filed for dissolution of the partnership, a Chartered Accountant can be appointed as Commissioner to look into the accounts and the relief available to the appellant can be worked out. The arbitration clause also cannot be now enforced by the appellant for the simple reason that the appellant had already filed written statement and participated in the proceedings, thereby indicating that even if any such right is available, it is deemed to have been waived under law. Admittedly, the plaintiff continues to be in possession of the said textile business and, as such, the appellant has to be restrained by an order of interim injunction as otherwise, the entire business would be affected and ultimately will end in loss.
14. Learned senior counsel for the plaintiff relied on the decision reported in NITYA KUMAR CHATTERJEE ..vs.. SUKHENDU CHANDRA under section 34 of Arbitration Act, wherein it is observed that "no stay when there are serious allegations of fraud and a prima facie case of fraud is proved. Desirable that matter should have trial in Court". Similar view has also been reiterated in UDAY CHAND MAHATAB ..vs.. TIRTHA NATH BASU (AIR 1955 N.U.C.1025) that arbitration clause did not prohibit the parties from going to Court for a dissolution of the partnership, for it only directed that disputes between the parties during the continuance of the partnership should be settled by arbitration. It has also been held in Narinder Singh Randhawa ..vs.. Hardial Singh Dhillon that mere filing of suit for dissolution of partnership, the partnership does not stand dissolved on that account. Question of rendition of accounts must be decided by Court and not by arbitrator. These decisions are applicable to the case on hand. Under the circumstance, I am of the view that there is no force in the contention of the learned counsel for the appellant that in view of the arbitration clause provided in the partnership agreement, the plaintiff has to seek for arbitration.
15. Learned senior counsel for the plaintiff relied on Suresh Kumar ..vs.. Amrit Kumar (AIR 1982 Delhi 131) that the jurisdiction to grant preventive relief may primarily rest upon contractual obligations between the partners, the violation of which will be prevented to avoid irreparable injury and vexatious or interminable litigation.
16. Reliance is also placed on The Proctor & Gamble Company ..vs.. Christian Hoden (India) Pvt. Ltd. (1989-1 L.W.54) that the appellate court not to interfere with discretion of trial court declining to grant injunction.
17. It has also been held in Wander Ltd. and another ..vs.. Antox India P. Ltd. (1990 (Supp) SCC 727) that the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. A similar view has also been reported in Champalal Jain ..vs..Thattikunda Rajamannar Trust (1995 I MLJ 589). There is no dispute about the principles enunciated in the aforesaid decisions and the applicability of the same but it depends upon the facts and circumstances in each case.
18. The plaintiff filed the suit directing the dissolution of the partnership business firm between the plaintiff and the 1st defendant by deed of partnership dated 06.03.1995 duly registered under the Trade and Merchandise Marks, appointing a Chartered Accountant Commissioner to take the accounts of the firm, permanent injunction restraining the 1st defendant and his men from in any manner interfering with the partnership business carried on under firm name MURUGANS and the premises bearing door No.265, Jawaharlal Nehru Street, Pondicherry and also mandatory injunction directing the 2nd defendant to return the nine blank signed bond papers along with 10 blank signed cheques drawn on Nedungadi Bank and Andhra Bank, Pondicherry to the firm.
19. Admittedly the plaintiff and the 1st defendant are the partners of the firm. The partnership business is one at will and, as such, anyone of the partners can withdraw from the partnership. The charges and counter charges levelled by the plaintiff and the 1st defendant clearly established that there was no smooth sailing between them and, as such, the situation has come when the business could not be carried on smoothly. Now, the plaintiff would blame that the brother-in-law and father-in-law of the 1st defendant were interfering with the administration of the business, whereas the 1st defendant / appellant would blame the plaintiff that his brother-in-law as well as his wife are interfering with the affairs of the business. No doubt, the plaintiff had levelled number of charges against the 1st defendant alleging interference in the partnership business. It is seen from the plaint as well as from the affidavit that the 1st defendant came to the shop, threaten the customers, teased the wife of the plaintiff, removed silk sarees and valuable articles, computer, pass books, etc. It is necessary to state that there is no record to show that any complaint was given by the plaintiff against the unnatural conduct of one of the partners. Moreover, no pre-suit notice was also given to the appellant. When once it is admitted that the appellant is also a partner, there may not be any necessity for him to come to the shop and create a scene and drive away the customers, who had come there to purchase the articles. If really the occurrence as alleged by the plaintiff had taken place in the shop, naturally the plaintiff could have filed affidavit from anyone of the employees or from the neighbouring shop owners accusing the conduct of the 1st defendant. Admittedly, nothing has been done by the plaintiff for reasons best known to him. It was also stated that cash of more than Rs.1,00,000/= had been removed by the men of the 1st defendant and for which also, there is no police complaint. When once it is conceded that the plaintiff and the 1st defendant are partners of the business, the burden is heavily upon the plaintiff to show that there is any imminent threat on the part of the 1st defendant so as to prevent him from interfering with the day-to-day work. It is settled position of law that normally one partner is not entitled to restrain the other partner from looking after the affairs of the business except under extraordinary circumstances.
20. The court below relied upon decision in that it is not illegal to grant even ex parte temporary injunction on some partners on the ground of hostile activities which might adversely affect the partnership business and it would bring it to a standstill. There is no dispute about the principle; but the burden is only upon the plaintiff to show that a situation had arisen for interference by a court of law. When the firm had borrowed money from financial institutions, there is a duty cast on the partners to clear the dues and if there was any default, naturally the bank would institute the proceedings before the Debt Recovery Tribunal and it is the duty of the partners to settle the claim. Further more, considering the main relief, namely, dissolution of partnership has been sought for by the plaintiff, it is not known how the plaintiff wants to continue the business excluding the participation of the 1st defendant and if that be so, if an order of interim injunction is granted to him, then it would virtually encourage him from carrying on the business as he pleases, so that it will create an opportunity for him to siphon of funds from the firm and ultimately, show the loss account. There are enough circumstances in the case to come to a conclusion that the plaintiff has not come to Court with clean hands and the application has been filed with an ulterior object.
21. It is admitted by the plaintiff that on the advice of his father, namely, the 2nd defendant, the plaintiff had agreed to pay a sum of Rs.2 crores to the 1st defendant, so that he can retire from the partnership. Now, the plaintiff would contend that without looking into the financial position and without hearing any advice from the third parties, he had agreed for the proposal mooted out by his father. The conduct of the plaintiff that he had already paid the sum of Rs.30 lakhs in one stroke on 02.03.1998 and subsequently paid at the rate of Rs.5 lakhs for 13 months would clearly establish that the plaintiff was honouring the agreement entered into between the parties. For a period of nearly 13 months, the plaintiff has not doubted about the settlement between the parties. When once the plaintiff agreed to pay Rs.2 crores and having parted with Rs.95 lakhs, he is bound to pay the balance of Rs.1,05,00,000/=. It is also seen from the records that 5 cheques given by the plaintiff were presented by the appellant in the bank and they were dishonoured and for which only, criminal complaints under section 138 of Negotiable Instruments Act have been filed by the appellant and they are pending before the Court. It is apparently clear that the plaintiff in order to get rid of the debt payable to the 1st defendant had now come forward with the suit in the name of dissolution of the firm and at the same time, prevented the trial of the case being carried out in the criminal court in the name of the interim injunction. Unfortunately, the trial court had lost sight of many aspects and granted the order of interim injunction based solely on the ground that the plaintiff alone is incharge of the business. Since the plaintiff has come forward with the suit for dissolution, it means that the plaintiff had not agreed to the retirement of the 1st defendant as a partner on payment of Rs.2 crores. When there was a settlement between the parties in the presence of their father and the plaintiff having parted with substantial amount, it can be safely concluded that the partnership had come to an end and, as such, the only remedy available to the plaintiff is to pay the balance amount to the 1st defendant / appellant, so that once for all he can be retired from the business. I am unable to agree with the contention of the learned senior counsel for the plaintiff that the remedy of the appellant is only to file a suit for recovery of the balance amount. The plaintiff having accepted to make the payment of Rs.2 crores for the retirement of the appellant from the business, is bound to honour the same. The plaintiff having failed to honour the commitment, is not entitled to claim the relief of interim injunction restraining the appellant and under the name of injunction, the plaintiff can carry on the business and appropriate the income to the detriment of the other persons. In short, the plaintiff cannot take advantage of his own wrong by defaulting to pay the amount and at the same time under the guise of interim injunction, he cannot be made to any unjust enrichment and defeat the right of the other partner. It is also admitted that now personal account has been opened by the plaintiff under the name of "New Murugans". No doubt, some excuse is stated for opening account in the name of "New Murugans" in the name of the plaintiff as well as his wife. Now, admittedly, the entire transaction is carried on only in the new account opened by them, thereby establishing that there is possibility to siphon of the funds from the shop to the new account, so that the appellant can be kept in darkness. Even assuming that the bank manager was acting hand and glove with the appellant, the plaintiff is not justified from opening a new account in the name of "New Murugans". If the plaintiff had acted bona fide, he could have opened another account in a different bank in the name of MURUGAN itself. The opening of a bank account under a different name only throws suspicion about the conduct of the plaintiff. Hence, I am of the view that the plaintiff is also equally placed with the appellant and one cannot overthrow the other except under due process of law. When the partners are similarly placed, one partner cannot prevent the other partner from interfering into the shop to see the actual business carried on.
22. The plaintiff also filed CMP No.409 of 2002 for reception of 12 documents as additional documentary evidence in the appeal. Learned senior counsel for the plaintiff stated that documents 1 to 11 were already filed before the trial court and only 12th document alone is filed before this Court and mark the same. However, learned senior counsel for the appellant / 1st defendant contended that when the plaintiff had come forward with an application for reception of additional documents under Order 41 Rule 27 of Civil Procedure Code, it is just and necessary that the order passed by the trial court is liable to be set aside and the matter has to be remitted back to the trial court for disposal in accordance with law. In support of his contention, learned counsel relied upon M/S.BEACH ESTATES, REP.BY PARTNERS ..VS.. M/S.LAKSHMI HOLDINGS LIMITED REP.BY MANAGING DIRECTOR , wherein it is stated as follows: "The Appellate Court has to examine validity, correctness and proprietary of order granting temporary injunction and such order can be reserved only on finding that discretion exercised by trial court on material placed before it was either perverse, arbitrary or capricious. The order of Appellate Court based on documents received at appellate stage which was not produced before Trial Court cannot be sustained. The District Judge committed error in receiving additional documents in miscellaneous Appeal challenging discretionary order granting injunction. The District Judge ought to have remitted the matter to trial court along with additional documents after setting aside order passed by Trial Court with direction to dispose of injunction application afresh".
The principle in this decision can be made applicable to the case on hand also.
23. Learned Senior counsel for the plaintiff, however, contended that the additional documents filed now need not be considered and orders may be passed on the documents already marked before the trial court and if that be so, it is not necessary to remit the same to the trial court. But the decision cited by the learned counsel for the appellant only indicates that if and when the additional documents are filed before the appellate court, it is just and proper to set aside the order passed by the trial court and remit the entire matter before the trial court. Now, documents 1 to 11 are said to have been filed in the trial court, but they have not been marked and considered. Only when these documents are absolutely necessary to consider the case of the parties, they have been now pressed into service. Taking into consideration of the entire material, I am of the view that the court below has failed to consider material aspects before passing an order of interim injunction in favour of the plaintiff. The oral assertion made on behalf of the plaintiff had been given much credence and an impression is created as if the appellant had trespassed into the shop and committed illegal acts. There is absolutely no material to come to such a conclusion. The plaintiff having failed to honour his commitment by not paying the balance of Rs.1,05,00,000/= and faced the criminal prosecution filed under section 138 of Negotiable Instruments Act, has come forward with the suit and application only to prevent the appellant from exercising his right as a partner and also to prevent him from realising the amount legally due to him. When the plaintiff has not come to court with clean hands and having paid money for a period of 13 months, it is no longer open to him to question the same at this belated hour and such a person cannot be granted the relief of interim injunction. If the order of interim injunction is granted, then the plaintiff will merrily carry on the business and he will siphon of the funds to the new account and there is also a possibility for secreting the income from the reach of the other persons, who are legally entitled to collect the same. By granting an order of interim injunction, the plaintiff alone will be benefited to a larger extent and at the same time, the irreparable loss and hardship that will be caused to the appellant will be much more and, as such, the order of interim injunction granted by the court below has to be necessarily set aside. In my view, the balance of convenience is also only in favour of the appellant and, as such, the points are answered accordingly.
24. For the reasons stated above, the appeal is allowed and the order passed by the court below dated 21.06.2001 is set aside and I.A.No.1238 of 2001 is dismissed. The defendants have already filed the written statement and, as such, the trial court is directed to dispose of the suit in a period of three months. The parties are directed to maintain status quo which prevailed prior to the filing of the suit. No costs. Consequently, CMPs.No.14662 of 2001 and 409 of 2002 are closed.