Kerala High Court
Johnson Stephen vs M/S.Mcees Trading on 5 March, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942
Arb.A.No.54 OF 2020
AGAINST THE ORDER/JUDGMENT IN CMA(Arb) 766/2020 OF
PRINCIPAL SUB COURT,ERNAKULAM
APPELLANT/APPLICANT:
JOHNSON STEPHEN, AGED 50 YEARS
S/O.LATE P.A.STEPHEN, THE THEN PARTNER,
M/S.MCEES TRADING, DOOR NO.34/767 A, GESIMA,
KRRA-78, KANNANTHODATH ROAD, EDAPPALLY P.O.,
KOCHI-682 024, PRESENTLY RESIDING AT PALLICKA
HOUSE, KOTTAMAM, KALABATTUPURAM ROAD, KALADY,
ERNAKULAM DISTRICT, PIN-683 574.
BY ADVS.
SRI.JOHN MATHEW (THEREZHATH)
SRI.N.N.SUGUNAPALAN (SR.)
RESPONDENTS/RESPONDENTS:
1 M/S.MCEES TRADING
DOOR NO.34/767 A, GESIMA, KRRA-78,
KANNANTHODATH ROAD, EDAPPALLY P.O.,
KOCHI-682 024.
2 ANOOP UNNIKRISHNAN,
THE THEN PARTNER, M/S.MCEES TRADING, DOOR
NO.34/767 A, GESIMA, KRRA-78, KANNANTHODATH
ROAD, EDAPPALLY P.O., KOCHI-682 024.
3 SUNIL KUMAR T.K.,
THE THEN PARTNER, M/S MCEES TRADING, DOOR
NO.34/767 A, GESIMA, KRRA-78, KANNANTHODATH
ROAD, EDAPPALLY P.O., KOCHI-682 024.
4 THE AXIS BANK,
EDAPPALLY BRANCH, VITHAYATHIL BUILDING NELSON
MANDELA ROAD, EDAPPALLY, ERNAKULAM,
PIN-682 024.
5 THE FEDERAL BANK LTD.,
Arb.Appeal No. 54 of 2020
-:2:-
ERNAKULAM BYE PASS BRANCH, HIGHWAY HEIGHTS,
N.H.BYPASS PUTHIYA ROAD, ERNAKULAM, PIN-682 032.
6 BANK OF BARODA,
PALARIVATTOM BRANCH, 1ST FLOOR, 34/1860 A,
PALARIVATTOM-EDAPPALLY ROAD, MAMANGALAM,
EDAPPALLY, ERNAKULAM, PIN-682 565.
R1-3 BY ADV. SRI.VIZZY GEORGE KOKKAT
R1-3 BY ADV. SRI.C.HARIKUMAR
R1-3 BY ADV. SRI.V.V.SADANANDAN(SREEMOOLANAGARAM)
R1-3 BY ADV. SRI.RENJITH RAJAPPAN
R4 BY ADV. SRI.PREMCHAND M.
R5 BY ADV. SRI.BINOY DAVIS
R5 BY ADV. SRI.REJI GEORGE
THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 04-
03-2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:
Arb.Appeal No. 54 of 2020
-:3:-
"C.R."
JUDGMENT
Dated this the 5th day of March, 2021 The main question to be considered in this appeal is whether the order passed by the Commercial Court (Principal Sub Court) at Ernakulam on 22.12.2020 in CMA (Arb) No.766 of 2020, dismissing the application and declining the reliefs sought by the applicant under Section 9 of the Arbitration and Conciliation Act, 1996 is legal, proper and correct. The applicant had sought for the following reliefs in CMA (Arb) No.766 of 2020:
"I. To appoint a Receiver under Section 9(1) (II)(d) of the Arbitration and Conciliation Act, 1996 to take the possession and for the administration and management of the assets and the business of the 1st respondent firm, to realize the income from the business of the firm, to preserve the properties of the subject firm and also to maintain its accounts for the time being till the appointment of the Arbitrator.
II. To Freeze the relevant bank accounts of the subject firm maintained with the 4th respondent Bank of Edppally Branch as A/c No.919030046197357 of IFSC Code UTIB0003197, 5th respondent Bank of Ernakulam By-pass Branch as A/c No.16085500000065 of IFSC Code FDRL0001608 and the 6th respondent Bank as A/c Arb.Appeal No. 54 of 2020 -:4:- No.37450200000025 of IFSC Code BARBOPALARI and to interdict the respondent banks 4, 5 and 6 from transferring or disbursing any amounts lying in those subject accounts by the respondents 2 and 3 and to maintain the status quo with respect to those subject bank accounts for the time being till the appointment of the arbitrator.
III. To pass an Ad interim order of Injunction restraining the respondents 2 and 3 from alienating, encumbering and from dealing with the assets of the 1 st respondent firm in any manner prejudicial to interest of the Applicant till the appointment of the Arbitrator.
IV. Pass such other orders which this Hon'ble Court may deem fit and necessary for the facts and circumstances of the case."
2. The disputed facts of the case as disclosed from the pleadings of the parties are summarised hereinbelow:-
The appellant and respondents 2 and 3 were partners of the 1 st respondent firm. The 1st respondent firm was originally constituted in the year 2002 with the appellant and respondents 2 and 3 and registered with the Registrar of Firms as "Partnership at Will" on 14.05.2014 with registration number 1475/2014. True copy of the relevant extract of the 1st respondent firm maintained with the Registrar of Firms at Thiruvananthapuram as Form A dated 25.06.2020 is produced alongwith the appeal memorandum as Annexure A2. The Firm was engaged in the business of trading and servicing of generators and other allied industrial products. The Arb.Appeal No. 54 of 2020 -:5:- Firm was constituted by virtue of partnership deed executed on 14.09.2002. True copy of the deed of partnership executed on 14.09.2002 is produced alongwith the appeal memorandum as Annexure A1. The profit and loss of the firm was agreed to be shared equally among the partners in the ratio 1:1:1 as per terms incorporated in Annexure A1 partnership deed. Since from the date of inception of the Firm itself the appellant had been actively engaged in the day to day affairs of the Firm and continued as such, till its dissolution on 01.09.2020. The 2 nd respondent had been duly authorised by the partners to perform numerous activities of the firm, to operate the relevant bank accounts of the Firm, to affix seal and signature for and on behalf of the Firm and its partners and to file the tax returns of the Firm. Originally each partners had contributed Rs.5,00,000/- towards capital. Thereafter various sums have been advanced by the appellant to the Firm towards capital contribution.
3. The 1st respondent Firm made remarkable progress in its business from the date of its inception itself and since the appellant had been actively involved in the marketing and promotion of the Firm and its products, he had been paid a monthly remuneration by the firm, since its inception. The shares in the profits accrued from Arb.Appeal No. 54 of 2020 -:6:- the business carried out by the Firm were not received by the appellant and other partners but have been invested into the Firm itself based on a mutual arrangement among the partners for the well being and expansion of the Firm. The 1st respondent Firm had paid monthly remuneration to the appellant till middle of the year 2017 and to establish the factum, true copy of the bank statements of the appellant for the period from 2014 to 2017 are produced alongwith the Appeal Memorandum as Annexure A3. Thereafter it was proposed to the appellant by the 2nd respondent that prospective salary payable to him will be kept in abeyance for the time-being, in view of the ongoing projects involving huge investments. The proposal was accepted by the appellant and other partners for the best interest of the Firm. The 2 nd respondent assured the appellant that salary arrears outstanding will be settled in due course. Thereafter, the appellant had developed a preliminary marketing wing within the Firm under his leadership during the years 2012 to 2017 and thereafter sub-delegated his works and activities to a Marketing Manager namely Mr.Rajesh Nair. The appellant on the request of the other partners then decided to focus exclusively on the expansion proposal of the Firm which includes merger and acquisition, overseas expansion and fresh Arb.Appeal No. 54 of 2020 -:7:- investment prospects. Therefore, he had been actively engaged in several meetings and discussions to fructify the new agendas of the Firm.
4. Facts being so, the 1st respondent Firm failed to pay monthly remuneration to the appellant from the middle of 2017. Since the salary was in arrears for more than three years, the 2 nd respondent attempted to convince the appellant that the Firm is presently slashing down its other heads in the wake of increased liabilities including loans and overdrafts. Since the appellant was not convinced, he demanded for the balancesheet of the 1st respondent Firm. The 2nd respondent informed the appellant that the balancesheet for the Firm for the financial year 2018-19 is due for submission and that a draft will be shared to the appellant prior to submission. But to the utter dismay of the appellant, he came to know later that the balancesheet demanded by him was submitted without sharing a draft to him. The appellant became aggrieved by the non co-operation of respondents 2 and 3. He was of apprehension that respondents 2 and 3 in collusion, would take hasty attempts to oust him from the Firm without due process. The appellant was also denied access to relevant documents and accounts maintained by the Firm. In the above context, the Arb.Appeal No. 54 of 2020 -:8:- appellant was constrained to dissolve the 1 st respondent Firm by issuing notice as contemplated under Section 43 of the Indian Partnership Act, 1932, which provision is applicable to dissolution of a 'Partnership at Will'. True copy of the dissolution notice dated 19.08.2020 is produced alongwith the appeal memorandum as Annexure A4. Annexure A4 notice of dissolution was also intimated to the Registrar of Firms and publication of the same in the newspaper was also made. True copy of the notice for dissolution dated 07.09.2020 issued by the appellant to the Registrar of Firms under Section 63(1) of the Indian Partnership Act, 1932 and copy of the paper publication dated 21.10.2020 made by the appellant in Deshabhimani newspaper are also produced alongwith the appeal memorandum as Annexures A5 series. On dissolution of the Firm in the manner aforesaid, respondents 2 and 3 are bound to take steps to settle the accounts with the appellant in due process. But effective measures were not taken by them till date for settlement of the accounts. It was learnt by the appellant that hasty attempts are being taken by respondents 2 and 3 to divert the funds lying in the accounts of the Firm and also to alienate the assets of the Firm prejudicial to his interest. In the above circumstances, the appellant was constrained to invoke Clause 14 of Annexure A1, the Arb.Appeal No. 54 of 2020 -:9:- arbitration clause, which is extracted hereunder :
"In the event of any dispute arising among the partners, the same shall be referred to the Arbitration of a Single Arbitrator agreed upon among the partners unanimously and the arbitrator's award shall be final."
5. The statutory notice mandated while proposing to appoint an Arbitrator under Section 11 of the Arbitration and Conciliation Act,1996 was also issued by the appellant to respondents 2 and 3 and true copy of the notice and the relevant postal receipts to establish the service of notice on the respondents are also produced alongwith the appeal memorandum as Annexure A6. Despite receipt of Annexure A6, respondents 2 and 3 were not willing to co-operate with the proposed appointment of arbitrator and therefore the appellant was constrained to file Arbitration Request No.111 of 2020 before this Court seeking for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.
6. The 1st respondent Firm is maintaining current accounts with respondents 4, 5 and 6 and an approximate sum of Rs.2 Crores is lying in the said accounts. It is submitted that if respondents 2 and 3 withdraw the amount lying in the account of the Firm and if Arb.Appeal No. 54 of 2020 -:10:- the subject assets of the Firm were alienated by the respondents before settlement of the accounts with the appellant, the arbitration proposed will be a futile exercise and the appellant will not be able to realise his dues. In the above circumstances, application was moved by the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 seeking for interim reliefs as stated above.
7. Respondents 1 to 3 had filed counter affidavit in the above application. The 2nd respondent had sworn to in the counter affidavit for himself and for and on behalf of the 1 st and 3rd respondents. It was contended that material factums have been suppressed by the appellant in the application filed by him seeking for interim reliefs and therefore his approach to the Court is without clean hands and for the reason, the reliefs sought are liable to be declined. The formation of the partnership originally on 14.09.2002 by Annexure A1 partnership deed executed among the appellant and respondents 2 and 3 is revealed from Annexure A2, the extract of the particulars of the 1st respondent Firm maintained with the Registrar of Firms and also not denied by them. The mutual agreement to share the capital profits and losses of the Firm in 1:1:1 proportion was also not denied. It was contended that by virtue of a reconstitution deed executed on 24.12.2008, one Arb.Appeal No. 54 of 2020 -:11:- Mr.Anilkumar G was inducted into the partnership for availing overdraft facility for the Firm by pledging the property offered. Thereafter, in the year 2014 the newly inducted Anilkumar G and the appellant expressed their desire to retire from the partnership Firm. Thereupon the property of Anilkumar G was released from the pledge. The accounts of the appellant was settled and the amount due to him was transferred to the loan account in his favour. Another reconstitution deed was executed on 08.10.2014 by virtue of which Mr.Anilkumar G and the appellant got retired from the 1st respondent partnership Firm. Consequently respondents 2 and 3 continued in the 1st respondent Firm as equal partners. Though the reconstitution of the Firm and execution of the reconstitution deeds on 24.12.2008 and 08.10.2014 are matters having relevancy in the context of the case, those have been conveniently suppressed by the appellant. With the execution of reconstitution deeds, Annexure A1 partnership deed dated 14.09.2002 relied on by the appellant and incorporated within it the arbitration Clause, lost its effect and significance and the petition filed under Section 9 ought to have been dismissed by the court below as not maintainable.
Arb.Appeal No. 54 of 2020-:12:-
8. It is false to state that the 2 nd respondent was appointed as managing partner of the Firm to carry out the daily affairs, to operate bank accounts and to affix seal and signature on behalf of the Firm. The affairs of the Firm after its reconstitution was managed jointly by the remaining partners, who are none other than respondents 2 and 3. After 2010 the role of the appellant was confined only to provide business leads. Monthly remuneration was paid to the appellant as well as the other partners and the shares of the profit of the partners were credited to their capital account. The amounts accumulated to the capital account of the appellant and the amount due to him on settlement of the accounts after his retirement from the partnership Firm was transferred to the loan account of the appellant by crediting a sum of Rs.38,25,600/- into his bank account during December, 2015. Therefore the loan account of the appellant was closed by the 1st respondent Firm. Though the above matters are relevant for consideration of the application on hand, the appellant had suppressed those in the application seeking interim reliefs only to project that he was continuing in the 1st respondent partnership Firm as a partner. It is indicated from the GST registration of the 1st respondent Firm that only 2nd and 3rd respondents are partners of the 1st respondent Firm. Arb.Appeal No. 54 of 2020 -:13:- The appellant withdrew from the day to day affairs of the Firm in the year 2010 and lateron started a real estate business, on his own. He continued as partner only for the purpose of business leads. Even after retirement of the appellant from the partnership in the year 2014, he was retained in the Firm for transacting the business leads of the 1st respondent and was paid monthly remuneration for the services rendered by him. The said arrangement continued up to March 2017 and in the event of the appellant revealing his plans to start a business, competing the 1 st respondent Firm, the payment of remuneration was stopped. On the request of the appellant, mobile number was also transferred from the 1st respondent's closed user group connection to his personal name in the month of September 2017. A private limited company named M/s.Energeniq Sales and Services Pvt. Ltd was started to do business in the same line of business conducted by the 1st respondent Firm. The appellant himself was the Managing Director of the new company incorporated by himself and other Directors namely Mr.Jibi Bhaskar, Saneesh Surendran and Sumesh P., all of whom were employees of the 1st respondent Firm. Therefore, the averment of the appellant that the 2nd respondent had proposed to keep the salary of the appellant in abeyance and Arb.Appeal No. 54 of 2020 -:14:- abstained from accounting the outstanding salary arrears are denied by the respondents, being devoid of basis.
9. The averment of the appellant that he had developed a parallel marketing wing and has sub-delegated his works to one Mr.Rajesh Nair was also denied. The claim of the appellant that for the purpose of expansion of business of the 1st respondent Firm, he had actively taken part in meetings and discussions is also denied. There was no assistance from the appellant's side towards business promotion of the 1st respondent since April 2017, and therefore, the 1st respondent Firm is not liable to make any payment to him. The averments of the appellant that certain payments to him was withheld for three years and despite the assurance given by the 2 nd respondent on his demand to share the balancesheet of the Firm for the year 2018-19 to him was not given, are denied. There is no scope for any apprehension for the appellant, since he has retired from the 1st respondent partnership Firm by virtue of the reconstitution deed dated 08.10.2014. After 08.10.2014, the appellant has no subsisting interest in the 1st respondent Firm and what is claimed is without basis. Since he got retired from the 1 st respondent partnership on 08.10.2014, he has no right to dissolve it as claimed by him. Whatever interests the appellant had with the Arb.Appeal No. 54 of 2020 -:15:- 1st respondent Firm were settled in terms of the reconstitution deed dated 08.10.2014. The averment of the appellant that dissolution notice dated 07.09.2020 has been served on the Registrar of Firms to get the Firm dissolved is against truth. Toyota Altis diesel car No.KL07 CB 1170 given to the appellant by the 1 st respondent Firm was retained by him after retirement from the Firm promising to remit the monthly installments towards loan availed for its purchase. But, the appellant failed to do so after April 2017 and thereupon the 1st respondent was constrained to meet the loan dues. The appellant recently had contacted the 2nd and 3rd respondents requesting for NOC and sale letter for transfer of the car on making an assurance that the amounts outstanding towards the loan for the car will be settled by him. 2 nd and 3rd respondents had received registered letters from the appellant with sale letter and those are now pleaded by him as dissolution notice. The appellant cannot invoke an arbitration clause incorporated in an agreement which was replaced by a reconstitution deed executed at the time of retirement of the appellant in the year 2014. It is false to state that Rs.2 Crores is available in the accounts maintained by the 1st respondent in various banks. Overdraft facility for Rs.2.5 Crores was availed by the 1st respondent against security of Arb.Appeal No. 54 of 2020 -:16:- immovable properties of the 2nd respondent and his wife Reshmi and therefore currently a debit balance of Rs.1 Crore is there. Sales Tax claims worth Rs.1 Crore are there to be meted out. Therefore there is no merit in the averments of the appellant that hasty attempts are being taken to withdraw the amount available in credit in the banks and attempted to alienate the assets of the Firm. 6 years have also been elapsed after dissolution of partnership and therefore, the claims of the appellant are liable to be discarded as devoid of merits. The appellant has approached the Court with unclean hands since material facts were suppressed deliberately. The reliefs sought are devoid of any basis. The interim orders sought to be granted, if allowed, would undoubtedly prejudice the day to day conduct of business of the 1 st respondent Firm. It would only result in detriment to the respondents. Therefore, the interlocutory application seeking for interim reliefs aforequoted is only liable to be dismissed.
10. The Principal Sub Court, Ernakulam, after evaluating the pleadings and appreciating the documentary evidence adduced by either parties, had passed an order primarily granting the interim relief prayed for by the appellant in I.A. No.3 of 2020 for freezing the bank accounts of the Firm in favour of the appellant. Notice Arb.Appeal No. 54 of 2020 -:17:- was issued to the respondents and on entering appearance, they pressed for lifting of the interim order. After evaluating the evidence adduced by either parties, the court has passed the impugned order lifting the interim order passed in I.A. No.3 of 2020.
11. Sri.N. Sugunapalan, the learned Senior Counsel and Sri.C. Harikumar argued on the basis of their respective contentions stated above, on behalf of the appellant and the respondents respectively. The learned Senior Counsel has relied on Adhunik Steels Ltd v. Orissa Manganeese and Minerals (P) Ltd. [(2007) 7 SCC 125] to rest his contention that the well recognised principles applicable to exercise of general power to grant interim relief including specific injunctive relief under Order XXXIX CPC and the Specific Relief Act, would be applicable also to exercise of power under Section 9 of the Arbitration and Conciliation Act, 1996. Chrisomar Corporation v. MJR Steels Private Ltd. [AIR 2017 (SC) 5530] is relied on by the learned Senior Counsel to rest his contention that only when a contract is altered, rescinded or substituted by a fresh contract, the performance under the original contract will come to an end. When parties to a contract alter a contract, the question that has to be answered is as to whether the Arb.Appeal No. 54 of 2020 -:18:- original contract is altered in such a manner that performance under it is at an end. It is also held in the case relied on by the learned Senior Counsel that if modifications in the original contract do not go to the very route of the original contract and do not change its essential character, it has no independent contractual force, no meaning and content separately from and independently of the original contract. In such circumstances, it cannot be held that with the modifications the parties do not intend to rescind the contract. The original terms continue to be part of the modified contract except to the extent that they are inconsistent with the modifications made. M/s.Purbanchal Cables & Conductors Pvt Ltd. v. Assam State Electricity Board and another [2012 (4) Supreme 369] was also relied on by the learned Senior Counsel to contend that novation or alteration of contract is a mixed question of facts and law and therefore should be raised before the court of first instance. Kalianna Gounder v. Palani Gounder and another [AIR 1970 SC 1942] is relied on by the learned Senior Counsel to contend that the effect of making a material alteration in a document, without the consent of the party bound by it, is exactly the same as that of cancelling the deed. Indian Explosives Ltd. v. Coal India Ltd. [(2019) 16 SCC 258] has also been relied on by Arb.Appeal No. 54 of 2020 -:19:- the learned Senior Counsel to base his contention that unilateral insertion of a supplementary clause in a contract between the parties will not amount to novation of contract, since that will act to the prejudice of the party not consented to the insertion.
12. Sri.C. Harikumar, the learned counsel for the respondents has relied on Dalpatkumar and another v. Prahlad Singh and others [(1992) 1 SCC 719] to contend that in cases wherein interim injunction was sought, existence of a prima facie case, irreparable injury and balance of convenience in favour of the person claiming it must be established. The learned counsel has also relied on Wapcos Limited v. Salma Dam Joint Venture and another [(2020) 3 SCC 169] to rest his contention that once the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the arbitration clause. In the decision cited, it was held that it is open to the parties to terminate the previous contract and substitute in its place a new contract or alter the original contract in such a way that it cannot subsist and in those cases since the entire contract is put an end to, the arbitration clause, which is a part of it, also perishes alongwith it. Wander Ltd and another v. Antox India Arb.Appeal No. 54 of 2020 -:20:- P. Ltd [1990 (Supp) SCC 727] was also relied on by the learned counsel to contend that the appellate court will not interfere with the discretion of the court of first instance and substitute its own discretion except where the discretion was 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.
13. C.M. Application filed under Section 9 of the Arbitration and Conciliation Act, 1996 was heard and dismissed by the impugned order passed on 22.12.2020. While passing the impugned order, the court below had appreciated Exts.A1 to A14 and Exts.B1 to B29 marked in evidence respectively by the appellant and the respondents. The respondents had not disputed Exts.A1 and A2. Therefore, the 1st respondent partnership Firm was originally constituted on 14.09.2002 with the appellant and two other partners namely, Sri.Anoop Unnikrishnan and Sri.Sunil Kumar T.K. It is clear from Ext.A2 that the Firm constituted in the year 2002 was registered with the Registrar of Firms in the name 'M/s.MCEES Trading' on 14.05.2014 as a Partnership at Will with registration No.1475/14, with the appellant, Sri.Anoop Unnikrishnan and Sri.Sunil Kumar T.K., as its partners. Therefore, if the Firm was Arb.Appeal No. 54 of 2020 -:21:- reconstituted with the induction of Sri.G.Anilkumar and a deed of reconstitution was executed on 24.12.2008 as Annexure A7, as contended by the respondents, while applying for registration, the name of Mr.G.Anilkumar must also be shown in the application. With the induction of Anilkumar G, a change occurrs in the constitution of the registered firm and therefore, as contemplated under Section 63(1) of the Partnership Act, 1932 the incoming, continuing or outgoing partner or the agent of any such partner or persons specially authorised in their behalf shall give notice to the Registrar, of such a change specifying the date of it and a record of the notice shall also be made by the Registrar in the entry relating to the Firm, already there in the Register of Firms at the time of registration and the notice shall be incorporated alongwith the above statement relating to the firm filed under Section 59. Likewise, if there was retirement of the appellant and Mr.G.Anilkumar from the 1st respondent Firm and Annexure A8 was executed on 08.10.2014 as reconstitution deed as alleged by the respondents, necessarily the said factum must also have been intimated to the Registrar of Firms by notice and an entry relating to that is caused to be made therein and the notice itself must be incorporated by the Registrar of Firms with the Register of Firms Arb.Appeal No. 54 of 2020 -:22:- maintained by him. It is pertinent to note that, despite the changes that allegedly occurred in the 1st respondent Firm with the induction of Mr.G Anilkumar and retirement of Mr.G.Anilkumar and the appellant from the Firm respectively on 28.12.2008 and 08.10.2014, the respondents failed to produce the certified copies of the extract of the entry of the Register of Firms maintained by the Registrar of Firms with reference to those and marked in evidence before the court below.
14. In the above context, certain provisions of the Indian Partnership Act, 1932 being relevant are extracted hereunder:
"58. Application for registration.--
(1) The registration of a firm may be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated, a statement in the prescribed form and accompanied by the prescribed fee, stating,--
(a) the firm name,
(b) the place or principal place of business of the firm,
(c) the names of any other places where the firm carries on business,
(d) the date when each partner joined the firm,
(e) the names in full and permanent addresses of the partners, and
(f) the duration of the firm. The statement shall be signed by all the partners, or by their agents specially authorised in this behalf.
(2) Each person signing the statement shall also verify it in the manner Arb.Appeal No. 54 of 2020 -:23:- prescribed.
(3) A firm name shall not contain any of the following words, namely:
-- "Crown", "Emperor", "Empress", "Empire", "Imperial", "King", "Queen", "Royal", or words expressing or implying the sanction, approval or patronage of 1[Government], except 2[when the State Government] signifies 3[its] consent to the use of such words as part of the firm name by order in writing". Clause (d) of sub-section (1) of Section 58 states that in the application for Registration, the date when each partner joined the Firm must be shown. In the case on hand, the Firm though originally constituted in the year 2002, registration was applied for only in the year 2014. If the claim of the respondents was that Mr.G.Anilkumar was inducted into the Firm on 24.12.2008, and he became a partner in addition to the appellant, Mr.Anoop Unnikrishnan and Mr.Sunilkumar T.K. the original partners, his name must also be shown in the application with the date of joining the firm. Annexure A2, does not incorporate the name of Mr.G.Anilkumar. The appellant's stand was of denial of execution of reconstitution deed as Ext.A7, and affixture of signature therein. According to him, Annexuture-A7 is only a forged document and non production of the certified copy of the extract evidencing the entry in the Register of Firms would only defeat the purpose. Rather than producing the certified copies of the statement, intimation or notice recorded or noted in the Register of Firms, copies of Arb.Appeal No. 54 of 2020 -:24:- reconstitution deeds allegedly executed among the parties, the very execution itself of which was denied by the appellant, are produced. This Court is not bound to adjudicate on the propriety and genuineness of Exts.A7 and A8 reconstitution deeds, the application under consideration being one seeking interim reliefs under Section 9 of the Arbitration and Conciliation Act, 1996. As per Section 68 of the Indian Partnership Act, 1932, the certified copies of the extract of the relevant entry in the Register of Firms alone will prove conclusively the contentions of the respondents that Mr.G.Anilkumar was inducted into the Firm on 24.12.2008 and Mr.G.Anilkumar and the appellant were retired from the Firm on 08.10.2014. Ext.B3 to B29 being documents pertaining to transactions of the 1 st respondent Firm subsequent to the alleged retirement of the appellant in terms of the reconstitution deed executed as Annexure A8 and prepared at the instance of the partners claimed as continuing in the Firm and the very authenticity of which is doubtful in view of the dispute raised by the appellant against, are only to be ignored.
15. Section 68 of the Partnership Act reads:
"68. Rules of evidence-(1) Any statement, intimation or notice recorded or noted in the Register of firm shall, as against any Arb.Appeal No. 54 of 2020 -:25:- persons by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact there in stated (2) A certified copy of any entry relating to a firm in the Registrar of firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statements intimation or notice recorded or noted therein".
Section 68 provides that a statement, intimation or notice relating to any change in the firm or consequent to dissolution of a firm signed by or for and on behalf of a person in the Register of Firms can be proved by producing an extract of the entries regarding those from the Register of Firms. It also provides that a certified copy of an entry relating to a Firm in the Register of Firms will be proof of the factum of registration of such firm with the changes and of the contents of any statements, intimation or notice recorded or noted therein. It is postulated by the above provision that once the firm is registered, that registration will be there for all practical purposes of the firm and there is no need for the firm to be further registered in the event of any changes occurred in the Firm in the future. The only thing mandated by the Act in case of changes of the nature is to bring an entry about that in the Register of Firms.
16. When the certified copy of the extract of the Register of Firms from the Registrar of Firms being conclusive proof of evidence Arb.Appeal No. 54 of 2020 -:26:- of the statement, intimation or notice forwarded thereto regarding the necessary changes in the firm name and principal place of business as per Section 60 of the Act, discontinuation of business or opening of new branches as per Section 61 of the Act, or changes in the names and addresses of partners as per Section 62 of the Act or relating to an entry, continuance or exit of any partners as per Section 63(1) of the Act, withdrawal of a minor from the firm on attainment of the age of majority as per Section 63(2) of the Act, rectification of mistake in order to bring entry in the Register of Firms relating to any firm in conformity with the documents relating to that firm as per Section 64 of the Act, are not produced, the above changes can only be considered as not occurred in the firm as it originally constituted.
17. Section 63 of the Act provides as follows :
"63. Recording of changes in and dissolution of a firm -
(1) When a change occurs in the constitution of a registered firm any incoming continuing or outgoing partners and when a registered firm is dissolved any person who was a partner immediately before the dissolution or the agent of any such partner or 'person specially authorised in this behalf may give notice to the Registrar of such change or dissolution specifying the date thereof and the Registrar shall make a record of the notice in the entry relating to the firms in the Register of Firms, and shall file the notice in along with the statement relating to the firms files under section 59. 2) Recording Arb.Appeal No. 54 of 2020 -:27:- of withdrawal of a minor - When a minor who has been admitted to the benefits of partnership in a firm attains majority and elects to become or not to become a partner, and the firm is then registered firm; he, or his agent specially authorised in this behalf, may give notice to the Registrar that he has or has not become a partner, and the Registrar shall deal with the notice in the manner provided in sub section (1)."
18. Therefore, if any change occurred in the constitution of a registered firm by any incoming, continuing or outgoing partners, notice shall be issued to the Registrar of Firms specifying the date of that change, and the Registrar may make a record of the notice in the entry relating to the firm in the Register of Firms and shall also file the notice, statement or intimation given, alongwith the statement relating to the firm already filed under Section 59. Therefore, it is incumbent upon any incoming, continuing or outgoing partner or his agent or person specifically authorised in that behalf to give notice to the Registrar of Firms, about such changes and the Registrar is bound to make a record of that with the date of it, in the entry relating to the Firm maintained by the Register of Firms and shall also file the notice alongwith the statement relating to the firm, already there.
19. The claim that a partner is newly inducted into the firm or that he has been retired from the firm, after the registration of the firm shall be proved by obtaining and producing a certified copy of Arb.Appeal No. 54 of 2020 -:28:- the entry relating to those changes in the Register maintained by the Registrar of Firms and that is conclusive proof regarding the registration of the firm with the newly inducted partners and in exclusion of the ones, retired. In the case on hand as observed earlier, the respondents failed to produce certified copies of the entries relating to the changes occurred in the constitution of the Firm with the induction of Mr.G. Anilkumar on 24.12.2008 and retirement of Mr.G. Anilkumar and the appellant on 08.10.2014. Therefore, conclusive proof to establish the above alleged changes are not available and therefore the those can only be considered as not taken place. When the Act insists that the induction of a new partner and retirement of existing partners must be in accordance with the procedure provided therein, parties cannot deviate from doing so and insist the court to act upon the documents produced by them to take a view that changes alleged by them in the constitution of the firm have taken place. In the case on hand, the partners allegedly induced and retired have disputed the execution of the reconstitution deeds and they even denied to have affixed signatures therein. The court below was convinced upon perusal and scrutiny of the admitted signatures of the appellant available before it that those have semblance with the signatures found in Arb.Appeal No. 54 of 2020 -:29:- the alleged reconstitution deeds. This Court has no hesitation to say that the observation of the court below is wrong, since the difference in signature can even be made out by a layman.
20. The appellant has contended that the shares of the profit has not been taken by him but was credited into the capital of the firm for the future welfare of the firm. According to him, the profits of shares of others are also credited into the accounts of the firm for the welfare of the firm. Admittedly of the respondents, the shares of the profits are not disbursed either to the appellant or to other partners. In the absence of conclusive proof as contemplated under Section 68, about retirement of the appellant and Mr.G. Anilkumar from the firm, the contention of the respondents on settlement of accounts with them, cannot be taken for granted. The appellant on the contrary produced Annexures A4, A5 and A5(a) which are nothing but true copies of dissolution notice issued by him to respondents 2 and 3 along with postal receipts, notice of dissolution issued by the appellant to the Registrar of Firms under Section 63(1) of Indian Partnership Act, 1932 alongwith the receipts obtained by him and paper publication made by the appellant in Deshabhimani Daily relating to dissolution of the subject firm. It is made clear from Exts.A4, A5 and A5(a) that notices of dissolution of Arb.Appeal No. 54 of 2020 -:30:- the firm were sent by the appellant to respondents 2 and 3 and also to the Registrar of Firms respectively on 9.08.2020 and 09.09.2020 and a publication to that effect was also made in a newspaper namely Deshabhimani on 27.10.2020. As already stated, Section 63(1) of the Act contemplates issuance of notice by a person, who was a partner immediately before the dissolution of the Firm or his agent or person authorised in that behalf, to the Registrar about dissolution, specifying the date thereof. The Registrar on receipt of the notice, shall make a record of the notice relating to the firm in the Register of Firms and shall file the notice alongwith the statement relating to the firm filed under Section 59 of the Act. Admittedly of the respondents, salary was stopped to be paid to the appellant for the reason that he had formed another firm namely "M/s.Energeniq Sale & Services Pvt. Limited" for conduct of a business similar to the one carried out by the 1 st respondent firm during continuance as a partner in the said firm. According to the respondents, as per the terms of Ext.A2 partnership deed, the appellant was restrained from doing business similar to the one carried out by the firm in which he was a partner at the relevant time. According to the learned counsel, business being carried out by 1st respondent firm, on issuing an order to freeze the accounts, Arb.Appeal No. 54 of 2020 -:31:- the conduct of the business would be stalled and payment of salary to its employees would be in difficulty. According to them, the appellant's intention while pressing for interim reliefs is to get his new business flourished.
21. The 1st respondent firm is a partnership at Will. Section 43 of the Act provides for dissolution of the Firm by notice of Partnership at Will. A partnership at Will gets dissolved by a partner, on the date shown in the notice issued to other partners expressing his intention to dissolve the firm, or in case date is not mentioned in the notice, the date on which it is communicated. In the case on hand, the notice incorporates the date of dissolution as 01.09.2020 and therefore the Firm will get dissolved from that date.
22. An argument was also advanced by the learned counsel for respondents 2 and 3 that with the execution of the reconstitution deeds as Exts.A7 and A8, Ext.A2 gets substituted and therefore, the arbitration Clause contained in Ext.A2 is at an end. Or in other words, the argument was that there was novation of the original partnership deed by the reconstitution deeds marked as Exts.A7 and A8. Novation means the extinguishment of the terms of an earlier contract and the creation of another between new persons atleast one of whom was a Arb.Appeal No. 54 of 2020 -:32:- stranger to the original contract and it is essential for the principle of novation to apply that there must be mutual consent of the all parties concerned. For that argument to be given force, the respondents must convince the court firstly on mutuality of the parties to the reconstitution deed to substitute Ext.A2 with Ext.A7 and Ext.A8. In the case on hand the parties are at variance on execution of Ext.A7 and A8 and therefore novation pleaded by the respondents cannot have any basis. Novation contemplated under the Contract Act, 1872 involves annulment of one debt and creation of another with the consent of the creditor. Therefore, novation means wiping out the original contract. The principle of novation cannot be drawn into the case on hand for the reason that on the basis of Ext.A2, the 1 st respondent Firm stands registered and the changes that allegedly occurred in the reconstitution subsequently were not evidenced as incorporated into the Register of Firms by any the partners constituting the firm or their agents or person specially authorised. Supersession of partnership registered on the strength of Ext.A2 by a new partnership deed is impossible, if all partners did not consent to it. The Apex Court has held in Chrisomar Corporation supra that performance under original contract will come to an end only when it is altered, rescinded or substituted by a fresh contract. Novation or alteration of a contract being a mixed question of fact and law should also be raised by the Arb.Appeal No. 54 of 2020 -:33:- party before the court of first instance as held by the Apex Court in M/s.Purbanchal Cables & Conductors Pvt. Ltd. Supra. It is found that a plea on novation was not raised in the counter affidavit filed in the C.M. Application and an argument based on that was not addressed before the court below. Therefore argument now advanced on novation will not sustain for the reasons and is discarded as untenable.
23. Sharad Vasant Kotak and others v. Ramniklal Mohanlal Chawda and another [1998 KHC 721] was cited by the learned counsel for the respondents herein before the court below and it was relied on by it to hold that for non-compliance of a mandatory provision warranting to furnish information to the Registrar of Firms about any changes in the constitution of the firm, penalties provided in the Act alone are attracted and that will not lead to a situation of cessation of registration of the firm. The decision as above was rendered by the Apex Court on the basis of proviso to Clause (a) of Sub-Section (1) of Section 69 of the Act applicable particularly to the State of Maharastra. The provision is not applicable to Kerala. Therefore, compliance of Section 63 of Partnership Act, 1932 is mandatory and non-compliance cannot be met with payment of penalty. The court below failed to apply its mind to the factual context Arb.Appeal No. 54 of 2020 -:34:- of Sharad Vasant supra while relying on it and applying it to the context on hand.
24. From the materials available as Annexure A5 it can prima facie be drawn that the appellant had served notice on the other partners and also on the Registrar of Firms about his intention to dissolve the firm with effect from 01.09.2020. Receipt issued by Registrar of Firms evidencing communication of notice is also produced. Therefore, there is every basis for this Court to take a view prima facie that the Partnership at Will was dissolved at the instance of the appellant on 01.09.2020. In the absence of conclusive proof regarding substitution of the terms in Annexure A2 with the alleged reconstituted deeds, as Annexure A7 and A8, Annexure A2 alone will prevail. Since Annexure A2 incorporates Clause 14, which provides for reference of disputes relating to settlement of accounts of the 1 st respondent Firm, to a sole arbitrator there is every basis for the appellant to apply for appointment of a sole arbitrator. This Court is convinced from the pleadings that an application is already filed under Section 11 of the Arbitration and Conciliation Act, 1996 as Arbitration Request No.111 of 2020 and the same is pending consideration of this Court.
Arb.Appeal No. 54 of 2020-:35:-
25. From the above discussion this Court is convinced that the appellant as petitioner was successful in making out a prima facie case for him. He was also successful in convincing the court below prima facie that the partnership got dissolved on 01.09.2020. The respondents by production of Exts.B3 & B4, the statements of accounts from appellant's bank that Rs.38,25,600/- had been credited there on 28.12.2015. Appellant had admitted the above factum, but contended that the said amount was deposited for the purpose of transacting the business of the firm and not towards settlement of accounts as contended by the respondents. According to the respondents, the appellant got retired from the Firm on 08.10.2014, and his accounts with it are settled on the day itself by executing a reconstitution deed as Ext.A8. Clause 4 of Ext.A8 reads :
"The accounts of the firm had been settled by the partners and whatever amount due to the retiring partners had been settled by the continuing partners. The retiring Partners had no right or claim on the assets of the Firm after 08.10.2014."
In the above context, there cannot be any settlement of accounts by crediting a sum of Rs.38,25,600/- on 28.12.2015, a date much later to 08.10.2014. A glance at Ext.A3 statement of Arb.Appeal No. 54 of 2020 -:36:- accounts revealed that the appellant was paid salary by the 1 st respondent till 05.04.2017. According to the respondent, even after retirement the appellant was permitted to continue in the firm only to provide business leads. But Ext.A8 does not incorporate in itself a term to the above effect. Admittedly of the appellant the above said sum was found credited into his account as per Ext.A3 statement of accounts but it was not towards settlement of his accounts with the firm as alleged by the respondent but meant for utilising in the business leads of the firm. The respondents' plea is improbable when viewed in the light of Clause 4 of Annexure A8. Thus the appellant has successfully brought in a case that the Firm got dissolved on 01.09.2020 and his accounts with the Firm were not settled, despite repeated requests made by him. Therefore, balance of convenience also stands in favour of him.
26. Therefore, it follows from the discussion above that appellant has made out a prima facie case before the court below. Since Ext.A7 and A8 are stoutly denied by the appellant, there is no merit in the respondents' contention that the appellant had approached the court with unclean hands by suppressing those and therefore disentitled for the interim reliefs sought. Annexure-R2(m) makes it clear that the appellant had started a new business in Arb.Appeal No. 54 of 2020 -:37:- partnership with some others in the name and style M/s. Energeniq Sales and Services Pvt.Ltd. The contention of the 1 st respondent that conduct of an allied business while continuing as a partner in the 1 st respondent Firm and while being an active participant in the business conducted by it is in violation of the terms of the partnership itself is devoid of any merits since such a term is not found incorporated in Annexure A2.
27. Dissolution of the firm being established, it is the right of the partner at whose instance the firm was dissolved, to get his accounts settled with the firm. If the accounts are not settled by referring the disputes of the parties to a sole arbitrator in terms of Clause 14 of Annexure A1 partnership deed, irreparable injuries will be resulted to the appellant. Therefore, the appellant has successfully established the three vital ingredients for grant of interim injunction in his favour, as held by the Apex Court in Dalpatkumar and Adhunik Steels Ltd supra. The application filed by the appellant was found dismissed by the court below on pure misconception of facts, law and evidence on record and therefore is liable to be set aside.
In the result, Arbitration Appeal is allowed. The impugned order is set aside. CMA(Arb.) No.766/2020 stands allowed and an Arb.Appeal No. 54 of 2020 -:38:- ad-interim order of injunction is passed under Section 9(1)(III)(b) of the Act restraining the 1 st respondent, its partners and agents or persons acting under them from alienating, encumbering and dealing with the assets of it in any manner prejudicial to the interest of the appellant till the arbitration proceedings are initiated before an Arbitrator, appointed by this Court in an application filed under Section 11 of the Act pending and pending consideration as Arbitration Request No.111 of 2020.
Sd/-
MARY JOSEPH, JUDGE ttb Arb.Appeal No. 54 of 2020 -:39:- APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE TRUE COPY OF THE PARTNERSHIP DEED DATED 14.09.2002 OF THE 1ST RESPONDENT FIRM EXECUTED BY AND BETWEEN THE APPLICANT AND THE RESPONDENTS 2 AND 3 AS ITS PARTNERS.
ANNEXURE A2 THE TRUE COPY OF THE RELEVANT EXTRACT OF THE 1ST RESPONDENT PARTNERSHIP FIRM MAINTAINED WITH THE REGISTRAR OF FIRMS AT THIRUVANANTHAPURAM UNDER SECTION 59 OF THE INDIAN PARTNERSHIP ACT, 1932 AS FORM A DATED 25.06.2020.
ANNEXURE A3 THE TRUE COPY OF THE RELEVANT BANK
STATEMENTS OF THE APPELLANT SHOWING THE
TRANSFER OF SALARY BY THE 1ST RESPONDENT
FIRM DURING THE YEARS BETWEEN 2014 TILL
2017.
ANNEXURE A4 THE TRUE COPY OF THE RELEVANT DISSOLUTION
NOTICE DATED 19.08.2020 ISSUED BY THE
APPELLANT TO THE RESPONDENTS 2 AND 3 AND
THE RELEVANT POSTAL RECEIPTS THERETO.
ANNEXURE A5 THE TRUE COPY OF THE NOTICE OF
DISSOLUTION DATED 07.09.2020 ISSUED BY
THE APPELLANT TO THE REGISTRAR OF THE
FIRMS UNDER SECTION 63(1) OF THE INDIAN
PARTNERSHIP ACT, 1932, THE RELEVANT
RECEIPT ISSUED THERETO.
ANNEXURE A5(a) THE TRUE COPY OF THE PAPER PUBLICATION
DATED 27.10.2020 MADE BY THE APPLICANT IN
THE DAILY NEWSPAPER OF DESHABHIMANI WITH
RESPECT TO THE DISSOLUTION OF THE SUBJECT
FIRM.
ANNEXURE A6 THE TRUE COPY OF THE STATUTORY NOTICE
DATED 14.11.2020 ISSUED BY THE APPLICANT
TO THE RESPONDENTS 2 AND 3 UNDER SECTION
11 OF THE ARBITRATION AND CONCILIATION
ACT, 1996 AND THE RELEVANT POSTAL
RECEIPTS THERETO.
Arb.Appeal No. 54 of 2020
-:40:-
ANNEXURE A7 THE TRUE COPY OF THE ABOVE SAID IMPUGNED
DEED OF RECONSTITUTION DATED 24.12.2008
ALLEGEDLY EXECUTED AMONG THE PARTNERS.
ANNEXURE A8 THE COPY OF THE IMPUGNED DEED OF
RETIREMENT DATED 08.10.2014 ALLEGEDLY
EXECUTED AMONG THE PARTNERS.
ANNEXURE A9 THE TRUE COPY OF THE KVAT CANCELLATION
CERTIFICATE ISSUED BY THE KERALA
COMMERCIAL TAXES DEPARTMENT TO THE 1ST
RESPONDENT FIRM.
ANNEXURE A10 THE TRUE COPY OF THE RELEVANT EXTRACT OF
AUDIT REPORT OF THE 1ST RESPONDENT FIRM
FILED DURING THE PERIOD BETWEEN
01.04.2014 TO 31.03.2015.
ANNEXURE A10(a) THE TRUE COPY OF THE RELEVANT EXTRACT OF
THE TAX REPORT OF THE 1ST RESPONDENT FIRM
FILED DURING THE PERIOD BETWEEN
01.04.2014 TO 31.03.2015.
ANNEXURE A11 THE TRUE COPY OF THE ABOVE SAID
ACKNOWLEDGMENT DATED 27.11.2020 ISSUED BY
THE HDFC BANK OF PALARIVATTOM BRANCH
ANNEXURE A12 THE TRUE COPY OF THE APPLICATION DATED
01.08.2015 FILED BY THE RESPONDENTS 2 AND
3 TO THE 5TH RESPONDENT FEDERAL BANK.
ANNEXURE A13 THE TRUE COPY OF THE ABOVE SAID LETTER
DATED 05.12.2014 ISSUED BY THE 1ST
RESPONDENT FIRM TO THE FEDERAL BANK.
ANNEXURE A14 THE TRUE COPY OF THE ABOVE CMA FILED BY
THE APPELLANT.
ANNEXURE A14(a) THE TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENTS 1 TO 3 IN THE
INTERLOCUTORY APPLICATION IN THE CMA.
ANNEXURE A14(b) THE TRUE COPY OF THE REPLICATION TO THE
OBJECTION FILED BY THE APPELLANT IN THE
ABOVE CMA.
Arb.Appeal No. 54 of 2020
-:41:-
RESPONDENTS' EXHIBITS :
ANNEXURE R2(a) THE TRUE COPY OF REQUEST FILED BY THE 1ST
PETITIONER DATED 08.10.2012 FOR
ENHANCEMENT OF ODCC LIMIT OF RS.45L TO
RS.100L BEFORE THE 3RD RESPONDENT BANK.
ANNEXURE R2(b) THE TRUE COPY OF APPLICATION FILED BY THE
1ST PETITIONER FOR ENHANCEMENT OF
OVERDRAFT/CASH CREDIT/BILL DISCOUNTING
FACILITY WITH THE 3RD RESPONDENT BANK
DATED 15.11.2012.
ANNEXURE R2(c) THE TRUE COPY OF SINGLE COUNTER GUARANTEE
DATED 15.11.2012 PROVIDED BY THE THEN
PARTNERS OF THE 1ST PETITIONER FIRM
AGAINST BANK GUARANTEE FACILITY TO THE
3RD RESPONDENT BANK
ANNEXURE R2(d) THE TRUE COPY OF CONSENT LETTER ISSUED BY
THE ANILKUMAR G DATED 16.11.2012 TO THE
3RD RESPONDENT BANK AGAINST RETENTION OF
TITLE DEEDS DEPOSiTED ON 27.01.2009.
ANNEXURE R2(e) THE TRUE COPY OF REQUEST BY 1ST
PETITIONER BEFORE 3RD RESPONDENT BANK
DATED 05.12.2014 FOR RELEASE OF
COLLATERAL SECURITY PROVIDED BY
SHRI.ANILKUMAR G AND SANCTION LETTER
THEREOF BY THE 3RD RESPONDENT BANK DATED
06.12.2014.
ANNEXURE R2(f) THE TRUE COPY OF STATEMENT OF ACCOUNT FOR
THE PERIOD 28.12.2015 TO 28.12.2015 OF
ACCOUNT NO.16085500000065 MAINTAINED BY
1ST PETITIONER WITH THE 3RD RESPONDENT
BANK
ANNEXURE R2(g) THE TRUE COPY OF STATEMENT OF ACCOUNT FOR
THE PERIOD 01.12.2015 TO 31.12.2015 OF
ACCOUNT NO.05208320000023 MAINTAINED BY
1ST PETITIONER WITH HDFC PALARIVATTOM
BRANCH
ANNEXURE R2(h) THE TRUE COPY OF CERTIFICATE DATED
01.12.2020 ISSUED BY THE AUDITOR OF THE
1ST PETITIONER
ANNEXURE R2(i) THE TRUE COPY OF AUDITED BALANCE SHEET OF
1ST PETITIONER FOR ASSESSMENT YEAR 2015-
16
ANNEXURE R2(j) THE TRUE COPY OF AUDITED BALANCE SHEET OF
1ST PETITIONER FOR AY 2016-17
ANNEXURE R2(k) THE TRUE COPY OF GST REGISTRATION
CERTIFICATE IN FAVOUR OF 1ST PETITIONER
FIRM DATED 21.09.2017
Arb.Appeal No. 54 of 2020
-:42:-
ANNEXURE R2(l) THE TRUE COPY OF POLICE COMPLAINT FILED
BY THE APPELLANT DATED 02.12.2020
ANNEXURE R2(m) THE TRUE COPY OF CERTIFICATE DATED
02.12.2020 BY PRABIN & MIDHUNKUMAR
ASSOCIATES, COMPANY SECRETRARIES
REGARDING THE CONSTITUTION OF ENERGENIQ
SALES AND SERVICES PRIVATE LIMITED.
//TRUE COPY//
P.S. TO JUDGE