Bangalore District Court
Sri.V.M.Kumar vs M/S.Muthu Metal Industries on 12 August, 2020
IN THE COURT OF THE LXI CITY CIVIL &
SESSIONS JUDGE: BENGALURU CITY (CCH-62)
Dated this the 12 th day of August, 2020
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bengaluru City.
ORIGINAL SUIT NO.6614/2017
PLAINTIFF: Sri.V.M.Kumar
S/o.Late V.Muthuswamy Chettiar
Aged about 76 years
R/a.N.18, 5th Cross, 2nd Main Road
P.S.R. Silks Shop road
Saraswathipuram
Mysore-570 009.
(By Sri.R.Nagaraj, Advocate.)
.V/s.
Defendant/s : 1. M/s.Muthu Metal Industries
A firm of Partners
No.6, 4th Main Road
West of Chord Road
Rajajinagar Industrial Town
Bangalore-560 044.
2. Smt.A.Pushpa
W/o.Late V.M.Anatharaju
Aged about 68 years
3. Sri Gopinath A Muthu
S/o.Late V.M.Anatharaju
Aged about 47 years
4. Sri Durairaj A Muthu
S/o.Late V.M.Anatharaju
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Aged about 43 years
5. Smt.Bhuvaneshwari.S
D/o.Late V.M.Anatharaju
Aged about 44 years
6. Smt.V.Sangeetha
D/o.Late V.M.Anatharaju
W/o.Sri K.Venkatesh Kumar
Aged about 40 years
No.2 to 6 are R/a.No.23, 2nd Cross, 3rd Main
Road, Nagarabhavi Main Road, Kalyan Nagar,
Bangalore-72.
7. V.M.Padmaraj
S/o.Late V.Muthuswamy Chettiar
Aged abut 63 years
R/a.No.1, HVS Apartments, Flat NO.5E
5th Floor, Edward Park, Off. Queen's Road
Bangalore-52.
8. V.M.Venkatesh @ SriV.M.Venkataraju
S/o.Late V.Muthuswamy Chettiar
Aged about 61 years
R/a.No.31, Narayana Krupa
25-RV Apartment, 2nd Floor, Flat No.302, 4th
Main, 11th Cross, Malleshwaram,
Bangalore-03.
9. Sri.V.M.Krishnamurthy
S/o.Late V.Muthuswamy Chettiar
Aged about 70 years
R/a.No.82, 2n Cross, Cauvery Layout,
Nagarbhavi Main Road
Bangalore-560 040.
10. Sri.V.M.Thiruvengadam
S/o.Late V.Muthuswamy Chettiar
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OS No.6614/2017
Aged about 58 years
R/a.No.89/1, 1st Floor
1st Stage, Gruhalakshmi Layout
Basaveshwaranagara
Bangalore-560 079.
11. V.M.Murugesh
S/o.Late V.Muthuswamy Chettiar
Aged about 56 years
R/a. No.280, 2nd Main,
3rd Phase Manjunath Nagar
Bangalore-10.
12. Raghavendra V Muthu
S/o.Sri V.M.Vekatesh @ Sri V.M.Venkataraju
Aged about 30 years
13. Sri Rajiv V. Muthu
S/o.Sri V..Venaktesh @ Sri V.M.Venkataraju
Aged about 27 years
No.12 and 13 are R/a.No.31, Narayana Krupa
RV-25, Flat No. 302, 2nd Floor, No.25, RV
Apartments, 4th Main, 11th Cross,
Mallehswaram, Bangalore-560 003.
14. V.M.Bhagyammal
W/o.Late V.Muthuswamy Chettiar
Aged about 77 years
R/a.No.82, 2nd Cross, Cauvery Layout
Nagarbhavi Main Road,
Bangalore-40.
(Defendant No.11 - By Sri. S.V.G., Adv.,)
(Defendant No.1 to 10, 12 to 14 - Exparte)
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J UD GM E N T
This is a suit filed by the plaintiff for the relief of
declaration to declare that the alleged GPA dated
20.11.2008 and the alleged reconstitution deed dated
16.04.13 are non-nest factum and are null and void and
not binding on the rights of the plaintiff and
consequently the alleged dissolution of the firm w.e.f.
28.03.16 is illegal and plaintiff continues to be the
partner of the 1st defendant firm, to direct the office to
send a copy of the decree to the Registrar of Firms,
Rajajinagar, Registration District, Bangalore with a
direction to cancel the entry regarding the deletion of
the name of the plaintiff and to enter the name of the
plaintiff as a partner of the 1st defendant firm in their
registers, to award costs and to pass such other
relief/relief's as deem fit in the interest of justice and
equity.
2. The brief facts of the plaintiff's case is as under;
The plaintiff No.1 to 14 are the partners of the
partnership firm M/s.Muthu Metal Industries by virtue
of the partnership deed dt.21.02.2004 and the same
was registered with the firms of Registrar on
15.03.2014. The said partnership firm continued in the
name and style of M/s.Muthu Metal Industries. The
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partnership firm has authorized that the 9th defendant
and plaintiff have been authorized to handle the bank
transactions on behalf of the firm. It is further
contended that in the month or in the year 2004 the
plaintiff was not keeping good health as he was
suffering from severe heart ailment and he was admitted
to Apollo BGS Hospital and during that time the
brothers of the plaintiff were visiting to the hospital and
obtained signature on several printed forms and blank
papers stating that they were required for immediate
management affairs of the firm.
The 1st defendant firm was having industrial site
at West of Chord Road bearing No.6, which was
acquired by the partnership firm. But on account of
financial constrainments it was decided to alienate that
property in favour of one N.Sampath. As the defendants
firm failed to execute the sale deed even after executing
the agreement infavour of N.Sampath, Sampath.N has
filed a suit in OS No.5079/2009 in which this plaintiff
has filed a written statement and contested the suit
contending that the amount received on behalf of the
firm has been received by all partners according to their
shares.
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But surprisingly it came to the knowledge of the
plaintiff that after filing written statement of 8th
defendant in the above suit, wherein he has took up a
contention in that written statement that the power of
attorney was executed by the plaintiff in favour of the
10th defendant and on the basis of the said power of
attorney a re-constitutional deed dated 16.04.2013 was
made by deleting the name of the plaintiff as the partner
of the firm and to that effect form 'D' was also
submitted. After coming to know of the fact the plaintiff
has also received a communication from other partners
of the firm about the re-constitutional deed and he was
shocked and surprised about the said document. At no
point of time, the plaintiff has executed GPA authorizing
the 10th defendant to put signature on behalf of the
plaintiff for the re-constitutional deed and it is only after
that point of time the plaintiff came to know about the
fraud committed by the defendants to deprive the right
of the plaintiff in the partnership firm. Hence, this suit
has been filed for the relief of declaration as claimed in
the suit.
3. After service of summons, the defendants
appeared before the court but they have not filed any
written statement as contested the suit.
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4. Inorder to prove the case of the plaintiff, PW-1
was examined and got marked Ex.P.1 to Ex.P.19. No
cross-examination was done by the defendants. The
plaintiff counsel has submitted written arguments
inspite of sufficient chance given. The defendants have
not submitted their arguments. hence, the case was set
down for judgment.
5. Inview of COVID-19 lock down the judgment
could not be pronounced hence, I am pronouncing this
judgment today.
6. As per the evidence of PW-1 and the documents
got marked by the plaintiff and as per submissions of
written arguments of the plaintiff now the following
points arise for my consideration;
1. Whether the plaintiff prove
that the alleged GPA which
is marked as Ex.P.16 is a
fraudulent document?
2. Whether the plaintiff further
proves that in pursuance of
Ex..16 the reconstitution
deed executed on
dt.16.04.2013 which is
marked as Ex.P.15 is not
binding on the plaintiff?
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3. Whether the plaintiff is
entitled for the relief of
declaratory relief ?
4. What Order or Decree?
7. My findings to the above points are as under:
Point Nos.1 to 3 : In the Affirmative.
Point No.4 :As per the final order for the
following:
R E A S ON S
8. POINT No.1 TO 3:- Inorder to avid the
repetition of facts, circumstances and evidence as the
defendants have not contested the suit, I am discussing
all these points together.
9. This suit has been filed by the plaintiff on the
allegation that the power of attorney which is marked as
Ex.P.16 was a fraudulent one and that document was
not executed by the plaintiff at any point of time and it
is a fraudulent document. AS a consequence of a
fraudulent document the re-constitutional partnership
deed alleged to have been executed on 16.04.2013
which is marked as Ex.P.15 is a non existing document
and by virtue of non existence of that document the
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original partnership deed which was executed between
the partners dt.21.01.2004 is still in existence.
10. In order to prove the existence of a partnership
firm, the plaintiff has produced the Ex.P.1 which is the
certified copy of the partnership deed entered between
the partners dated 21.01.2004 and accordingly the said
firm was registered as Ex.P.2. To corroborate the
acquisition of the Industrial site the Ex.P.3 is also
produced. Further, it is the contention of the plaintiff
that on account of financial constrainments the said
industrial site which is sold in favour of partnership
firm was agreed to sell in favour of N.Sampath and as
the partnership firm failed to perform its promise he
filed a suit is OS No.5079/2009 which is marked as
Ex.P.4. By perusing Ex.P.4, it can be noticed that a
specific performance suit has been filed in which this
plaintiff has filed a written statement and contended
that an agreement of sale was executed in favour of
N.Sampath and that suit has been contested and in that
suit it has been contended by this plaintiff that he is
ready to execute the sale deed so far as the share of the
partnership firm in the schedule property and also
liable to receive the share of this plaintiff. This written
statement is filed on 17.10.2012. Later on the 8th
defendant has filed written statement in that suit and in
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that suit it has been specifically stated that is not liable
to execute a sale deed on the other hand he is entitled
for refund of earnest money and this written statement
was filed to the court. By perusing the entire written
statement no where in the written statement it has been
stated about the retirement of his plaintiff and also
about the re-constitution of the deed. Ex.P.7 is a
document where in as a Managing Partner of the firm
plaintiff has executed with all the signature of the
partners with regard to the sale deed to be executed.
Now, this being the state of affairs when the plaintiff
continued as a partner of the firm if at all the plaintiff
was intended to retire from the partnership firm and if
he desires so, he has to issue a notice to all the partners
intimating his desire of retirement and he must
specifically execute a document with regard to the re-
constitution of the firm. On the other hand the re-
constitution of the firm has been executed by the other
partners excluding the plaintiff and it has been stated
that as a power of attorney holder of the plaintiff the
10th defendant has signed that document. Now, if at all
the re-constitution of the deed will have a binding effect
on the plaintiff then the power of attorney which was
executed in favour of 10th defendant will have to be
established by the defendants in a satisfactory manner
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and it has to be convincingly established that the power
of attorney was executed by the plaintiff.
11. Whereas in this case the plaintiff is contending
that the power of attorney and re-constitution of deed is
a fraudulent document. It is a well established principle
of law that wherever in a suit a fraud has been alleged
a mere say of fraud and averment made in the plaint
will not be sufficient to consider the fraud. In addition to
that the plaintiff must established independently and
convincingly how the fraud has been committed with
the plaintiff by using that document or with the
document alleged to have been created by way of a
fraud. For that purposes a clear and unequivocal
documentary evidence along with the oral evidence will
have to be placed before the court for considering that
aspect.
12. Now, in this case if at all there was a re-
constitution of deed as contended on 16.04.2013 that
could have been find a place in the written statement
filed in OS No.5079/2009 filed by defendant counsel.
But no such finding has been noticed in the plaint and
it is the specific case of the plaintiff that somewhere in
the year 2004 he was suffering from heart ailment
which is corroborated by Ex.P.19 and it is also the
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contention of the plaintiff that even though according to
the plaintiff the re-constitution deed has been made in
the year 2013 he has received his share which is
mentioned in Ex.P.18. Now, it is also to be noted
according to the power of attorney alleged to have been
executed by the plaintiff on a stamp paper of Rs.10/-
which is marked as Ex.P.16 wherein the stamp paper
was purchased in the year 1995 and this document was
executed on 20.11.2008. In the said document it has
been specifically stated that the 10th defendant has
been appointed as a attorney of the plaintiff and in that
document it has been specifically stated that the
attorney has authorized to sign the re-constitution deed
also. Now, as rightly contended by the plaintiff counsel,
this document has been valuated by paying a stamp of
Rs.200/- on 23.09.2013 that is after the gap of five
months from the date of re-constitutional deed. By
looking into this document it can be safely held that as
on the date of re-constitution of the deed the power of
attorney was not a valid document for executing the re-
constitution deed on behalf of the plaintiff. It is only an
after thought of the 10th defendant this act has been
committed behind the back of the plaintiff. Though in
the re-constitutional deed it has been stated that a re-
constitutional deed was reconstituted between the
partners it has been stated that this plaintiff was a
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Managing Partner of the firm is acting determental to
the partnership firm and with draw the power of
management to this plaintiff and it is stated that the
plaintiff has expressed his intention to retire from the
partnership and there by this re-constitutional deed has
been made. In such a event the obtaining of signature of
the plaintiff to this document is necessary. But no such
signature has been obtained. Besides this it is also to be
noted a notice was issued by the other partners to the
plaintiff in the year 2016 stating that though the
document of re-constitution of deed was made on
16.04.2013 the firm was dissolved on 23.08.2016 and
this was as per the clause III of the re-constitutional
deed. But clause III of the re-constitutional deed states
only about the continuation of the firm at Will. Though
according to the plaintiff he has not executed power of
attorney he has been made to retire from the firm on the
basis of an invalid document and on the basis of
signature submitted by a person who is not competent
to put his signature on the document.
13. Now, inview of all these above circumstances
now this court has to consider whether any fraudulent
act has been committed by the defendants or not. No
doubt the partnership firm can be re-constituted at any
point of time by the partners of the firm. But in this
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case the re-constitutional deed has been made keeping
out of plaintiff and on the contrary obtaining a
signature of a person who is not competent to sign on
behalf of the plaintiff that too on a invalid document.
Upon coming to know of that situation the power of
attorney was revalidated after lapse of five months from
the date of execution of the date of re-constitutional
deed. By looking into these documents and by
considering the circumstances narrated by the plaintiff
by way of evidence both oral and documentary evidence,
I am of the opinion that the contention of the plaintiff
that a fraud has been committed with the plaintiff has
been convincingly established before the court not only
by way of a oral evidence of the plaintiff, allegation made
in the paint and also by way of an independent evidence
through a convincing document. The Ex.P.18 also
establishes about receiving of money as a partner of the
firm. If at all really there was a re-constitution of the
firm and resolution of firm as per intimation received
by the plaintiff after service of summons the defendants
could have contested the suit and establish the fact of
the execution of power of attorney as well as the re-
constitutional deed. But though the summons has been
served on the defendants and they were presented by
Advocates, they have not contested the suit and made
an attempt to establish the fact that a contention taken
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by the plaintiff that the document on which the
defendants are lying is a fraudulent document could
have been disproved. No doubt the weakness of the
defendant cannot be a trump card for the plaintiff to get
the relief as claimed in the plaint. But on the other
hand the plaintiff must independently prove his case
with respect to the act of fraud contended in the plaint
otherwise the plaintiff is not entitled for any of relief as
claimed in the plaint. It is also a well established
principle of law that whenever an allegation has been
made against a party and that allegations has been
came to the knowledge of that person and if he is not
answered to that allegation, then an adverse inference
has to be drawn against that person holding that the
allegation made by the party is an admitted fact. In
this case though the plaintiff has claimed the relief on
account of fraudulent act of the defendants they have
not come forward to contest the suit and to establish
their defence. In the absence of any defense of the
defendants and by virtue of the corroborative
documentary evidence of the plaintiff to establish his
case as stated in the plaint I am of the opinion that the
plaintiff has successfully established his case before the
court. Hence, I have no hesitation to answer point No.1
to 3 in the 'Affirmative'.
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14. POINT No.4:- Having regard to my above
observations and finding on above point No.1 to 3 in the
affirmative, I hold that plaintiffs are entitled for the
reliefs claimed in this suit. In the result, I proceed to
pass the following:
O R DE R
The suit of the Plaintiffs is hereby decreed
declaring that the GPA dated 20.11.2008 and
alleged re-constitutional deed dated 16.04.2013 is
a non existing document and null and void and
not binding on the rights of the plaintiff and
consequently the alleged dissolution of the firm
w.e.f. from 28.03.2016 is illegal.
Draw Decree accordingly.
(Typed to my dictation on computer by Stenographer, transcript
corrected, signed and then pronounced by me in the open Court on this
the 12 th day of August, 2020).
(S.R.MANIKYA)
LXI Addl. City Civil & Sessions Judge,
Bangalore.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
THE PLAINTIFF:
PW.1: V.M.Kumar
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LIST OF DOCUMENTS EXHIBITED ON BEHALF OF
THE PLAINTIFF:
Ex.P.1 Certified copy of the Partnership Deed
dtd:21.01.2004
Ex.P.2 Certified copy of the Form 'A' issued by the
Registrar of Firm
Ex.P.3 Certified copy of the Registered Sale Deed
dtd:27.06.2008
Ex.P.4 Certified copy of the Plaint in
O.S.No.5079/2009
Ex.P.5 Certified copy of the Written Statement
filed by plaintiff in O.S.No.5079/2009
Ex.P.6 Certified copy of the Written Statement
filed by Defendant in O.S.No.5079/2009
Ex.P.7 Original Commitment document
dt:24.08.1998
Ex.P.8 Certified copy of the Objection Statement
filed by the defendant No.10 to I.A.No.7 in
OS No.5079/2009
Ex.P.9 Certified copy of the Communication
dtd:23.08.2016 sent by Defendant No.8 to
the plaintiff along with Postal Cover
Ex.P.10 Certified copy of the Communication
dtd:23.08.2016 sent by Defendant No.9 to
the plaintiff along with Postal Cover
Ex.P.11 Certified copy of the Communication
dtd:23.08.2016 sent by Defendant No.11
to the plaintiff along with Postal Cover
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Ex.P.12 Certified copy of the Communication
dtd:23.08.2016 sent by Defendant No.12
& 13 to the plaintiff along with Postal
Cover
Ex.P.13 Certified copy of the Form D issued by
Registrar of Firms, Rajajinagar
Registration District, Bengaluru.
Ex.P.14 Certified copy of the Form V dt:10.09.2013
Ex.P.15 Certified copy of the Alleged Re-
constitution of Partnership Deed
dtd:16.04.2013
Ex.P.16 Certified copy of the Alleged GPA
dtd:20.11.2008
Ex.P.17 Certified copy of the affidavit of defendant
No.10, issued by Registrar of Firms,
Rajajinagar, Bengaluru
Ex.P.18 Pass Book
Ex.P.19 Medical document
LIST OF WITNESSES EXAMINED AND DOCUMENTS
EXHIBITED ON BEHALF OF THE DEFENDANTS:
NIL
(S.R.MANIKYA)
LXI Addl. City Civil & Sessions Judge,
Bangalore.
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12.08.2020
P-RN
D1-10 - Exparte
D12 to 14 - Exparte
D-11 - SVG
JUDGMENT PRONOUNCED IN OPEN
COURT VIDE SEPARATE TYPED
ORDER
The suit of the Plaintiffs is hereby decreed declaring that the GPA dated 20.11.2008 and alleged re-constitutional deed dated 16.04.2013 is a non 20 OS No.6614/2017 existing document and null and void and not binding on the rights of the plaintiff and consequently the alleged dissolution of the firm w.e.f. from 28.03.2016 is illegal. Draw Decree accordingly.
(S.R.MANIKYA) LXI ACC & S Judge Bangalore.