Rajasthan High Court - Jodhpur
Balkishan vs Budh Singh on 5 April, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 222/2018
1. Balkishan S/o Sh. Pabu Singh, Aged About 78 Years, R/o
Mahamandir Crossing, Mandore Road, Jodhpur. (Raj.)
2. Ganpat Singh S/o Sh. Kune Singh, Aged About 77 Years,
R/o Mahamandir Crossing, Mandore Road, Jodhpur. (Raj.)
----Appellants
Versus
1. Budh Singh S/o Sh. Pabu Singh, R/o Mahamandir
Crossing, Mandore Road, Jodhpur. (Raj.)
2. Kan Singh S/o Sh. Bhanwarlal, R/o Mahamandir Crossing,
Mandore Road, Jodhpur. (Raj.)
3. Bharat Petrolium Corporation Ltd., Post Box No. 70,
Canaught Circle, Ece House, New Delhi.
4. Senior Divisional Manager, Bharat Petroleum Corporation
Ltd., Old Residency Road 22 Godown, Post Box No. 108,
Jaipur.
----Respondents
Connected With
S.B. Civil Second Appeal No. 4/2019
1. Senior Divisional Manager, BPCL, Old Residency Road, 22
Godown, Post Box No. 108, Jaipur
2. Bharat Petroleum Corporation Limited, P.o. Box No. 70,
Caugnat Circle E.c.e. House, New Delhi.
----Appellants
Versus
1. Budh Singh S/o Sh. Pabusingh, R/o Mahamandir Crossing,
Mandore Road
2. Kansingh S/o Sh. Bhawarlal, R/o Mahamandir Crossing,
Mandore Road
3. Balkishan S/o Sh. Pabusingh, R/o Mahamandir Crossing,
Mandore Road
4. Ganpatsingh S/o Kunneysingh, R/o Mahamandir Crossing,
Mandore Road
----Respondents
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(2 of 13)
S.B. Civil Second Appeal No. 6/2019
1. Senior Divisional Manager, B.P.C.L., Old Residency Road,
22 Godown, Post Box No. 108, Jaipur.
2. Bharat Petroleum Corporation Limited, P.O. Box No. 70,
Caugnat Circle, E.C.E. House, New Delhi.
----Appellants
Versus
1. Budh Singh S/o Sh. Pabu Singh, R/o Mahamandir
Crossing, Mandore Road.
2. Kansingh S/o Sh. Bhawarlal, R/o Mahamandir Crossing,
Mandore Road.
3. Balkishan S/o Sh. Pabusingh, R/o Mahamandir Crossing,
Mandore Road.
4. Ganpatsingh S/o Kunneysingh, R/o Mahamandir Crossing,
Mandore Road.
----Respondents
For Appellant(s) : Mr. N.K.Rastogi in CSA No.222/2018
Mr. Amit Tatia in CSA Nos. 4/2019 &
6/2019
For Respondent(s)- : Mr. Jitendra Chopra.
Plaintiffs
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 05/04/2021 These appeals are directed against the judgment & decree dated 4/10/2018 passed by the Addl. District Judge No.2, Jodhpur (Metro), whereby, the appeals filed by the appellants-defendants against the judgment and decree dated 6/5/2014 passed by the Addl. Civil Judge (Sr. Div.) No. 7, Jodhpur (Metro) have been dismissed.
The suit was filed by the plaintiffs - Budh Singh and Kan Singh against Bharat Petroleum Corporation Limited ('BPCL') and (Downloaded on 05/04/2021 at 08:48:21 PM) (3 of 13) its Senior Divisional Manager for mandatory injunction and for making changes in the dealership record.
It was inter alia indicated in the suit that plaintiffs and Bal Kishan & Ganpat Singh were partners in the firm Jaman Singh Pabu Singh; the firm was created in 1957, which at the relevant time was dealer of M/s Burma Shell Oil Storage & Distributing Company of India Limited; the firm established a petrol pump at Sumerpur; on 4/11/1975 a fresh partnership deed was executed and the same was registered on 7/5/1976 with the Registrar of Firms, Jaipur; at the relevant time there were six partners i.e. Pabu Singh, Bal Kishan, Budh Singh, Kunney Singh, Ganpat Singh and Kan Singh. On 27/7/1976, Pabu Singh died and in his place his wife Smt. Ganga Devi was inducted as partner. Whereafter, another partner Kunney Singh died on 3/8/1983 and Smt. Ganga Devi took retirement. Since 1983 there were only four partners. It was alleged that BPCL, which is successor of M/s Burma Shell, in its dealership agreement indicated only Bal Kishan and Ganpat Singh as partners of the firm Jaman Singh Pabu Singh and left the names of Budh Singh & Kan Singh, however, all the four partners are operating the petrol pump at Sumerpur.
It was submitted that only on account of names of two partners having been indicated in the dealership agreement, there were disputes arising between the partners as to whether the firm had four partners or two partners, which lead to police case between the partners and their family members on 27/10/1994, and a compromise dated 28/10/1994 was executed between the four partners, whereby, the partners agreed that all the four partners were entitled to operate petrol pump, BPCL also accepted the same in its letter dated 1/11/1994.
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(4 of 13) Submissions were also made that on behalf of the firm, the plaintiffs wrote many letters to the company for indicating their names also for avoiding any future dispute, however, needful was not done. It was indicated that the cause of action arose on 17/10/1994 when the dispute arose between the partners for operating the petrol pump. It was prayed that defendants BPCL & its officer be directed to record the names of Budh Singh and Kan Singh as partners of the firm M/s. Jaman Singh Pabu Singh.
It may be noticed here that during the pendency of the suit, Bal Kishan and Ganpat Singh were impleaded as parties to the suit and the plaint was amended.
The defendants, BPCL and its officer filed written statement to the amended plaint and denied the averments made in the plaint and indicated that the dealership agreement was with two partners i.e. Bal Kishan and Ganpat Singh. The petrol pump was operated by Bal Kishan and Ganpat Singh and not by Budh Singh and Kan Singh. The company was not bound by any compromise between the parties. Averments made by the plaintiffs were against the law and no relief can be sought from the company. No cause of action has arisen.
Replication was filed by the plaintiffs further clarifying the averments made in the plaint and seeking that the suit be decreed.
Written statement was filed by Bal Kishan inter alia claiming that with the death of Kunney Singh and retirement of Smt. Ganga Devi, the existing firm was annulled and a new firm through partnership deed dated 16/8/1983 with the same name M/s. Jaman Singh Pabu Singh was formed in which partners were Budh Singh, Kan Singh, Bal Kishan & Ganpat Singh. As the new (Downloaded on 05/04/2021 at 08:48:21 PM) (5 of 13) firm was not registered, the suit was not maintainable and as the BPCL entered dealership agreement only with Bal Kishan and Ganpat Singh and not with the firm M/s. Jaman Singh Pabu Singh, the plaintiffs were not entitled to any relief.
Submissions were also made that from the beginning the dealership was not in the name of all the partners and the same was in the name of few partners and at no stage any objection was raised and, therefore, the plaintiffs were not entitled to any relief. It was also claimed that the suit was barred by limitation and that the partnership firm stood dissolved with the death of a partner in the year 1976 and 1983 and on that count also, the plaintiffs were not entitled to any relief.
Defendant no.4, Ganpat Singh, remained ex- parte. Based on the pleadings of the parties, the trial court framed 13 issues. On behalf of the plaintiffs, two witnesses were examined and 43 documents were exhibited. On behalf of the defendants, three witnesses were examined.
After hearing the parties, the trial court came to the conclusion that it was proved that the firm M/s. Jaman Singh Pabu Singh had Bal Kishan, Ganpat Singh, Budh Singh and Kunney Singh as partners, the dealership agreement has been executed with the firm M/s. Jaman Singh Pabu Singh by BPCL, therefore, the plaintiffs are also entitled to get their names indicated. It was found that the suit was within limitation as the cause of action arose in the year 1994 and the suit was filed in the year 1997. It was also found that the plaintiffs were working throughout as partners of the firm and as such, there was no question of any estoppel. The suit was not liable to be dismissed for non- compliance of Order XXX Rule 1 CPC. Ultimately, defendant nos. 1 (Downloaded on 05/04/2021 at 08:48:21 PM) (6 of 13) and 2 i.e. BPCL and its officer were directed to include the names of plaintiffs as partners of firm M/s. Jaman Singh Pabu Singh.
Feeling aggrieved, the defendants i.e. Bal Kishan and Ganpat Singh filed appeal and BPCL and its officer also filed appeal.
The first appellate court after thoroughly examining the findings on four 'points for determination', came to the conclusion that the decree passed by the trial court did not call for any interference and upheld the judgment & decree passed by the trial court.
It is submitted by learned counsel for the appellants, Bal Kishan and Ganpat Singh, that both the courts below fell in error in decreeing the suit and dismissing the appeal.
Submissions were made that the suit was ex-facie barred by limitation inasmuch as even as per the documents exhibited by the plaintiffs i.e. Ex.4 to Ex.6, the dispute arose in the year 1985 and the suit was filed in the year 1997, however, the two courts below by wrongly accepting the date 27/10/1994 on which the cause of action arose has held the suit within limitation, which is incorrect. It is submitted that the claim made by the plaintiffs that they became aware of the fact that their names were not entered as partners in the dealership agreement in the year 1994 only, is baseless, which aspect is fortified from the notices given by the plaintiffs and their counsel, Ex.4 and Ex.6, indicating that the dispute arose in the year 1985 and, therefore, the suit was liable to be dismissed as barred by limitation. It was also submitted that the partnership deed has not been produced by the plaintiffs, which is the foundational document and in absence of the partnership deed, no relief could have been granted by the trial court.
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(7 of 13) It is submitted that the two courts below wrongly relied on Ex.3, which is only a copy of entry of Register of Firm for arriving at a finding pertaining to the existence of the firm in the name of M/s. Jaman Singh Pabu Singh. It was submitted that the partnership in fact came to an end with the death of two partners i.e. Pabu Singh on 27/7/1976 and Kunney Singh on 3/8/1983 and with the retirement of Smt. Ganga Devi on 3/8/1983, therefore, no relief could have been granted to the plaintiffs.
It was also submitted that the issue no.2, which pertain to the fact of effect of order of the High Court dated 23/3/2000 passed in the revision petition has also been wrongly decided as the appellants were not parties to the said revision petition. It was submitted that the aspect that suit was ex-facie barred by limitation gives rise to substantial question of law and, therefore, the appeal be admitted.
Learned counsel appearing for the BPCL made submissions that the trial court and the first appellate court fell in error in directing the company to incorporate the names of the plaintiffs. It was submitted that based on some inter se dispute the plaintiffs cannot seek induction of their names in the dealership agreement only on account of their allegedly being partners in the firm as the same was entered into by the company with two partners and, therefore, the decree passed in his regard directing the appellant BPCL to induct the names of plaintiffs deserves to be set aside.
Further submissions were made that even pursuant to the decree, though the appellants complied with the decree dated 6/5/2014 and indicated that in the record of the company for firm M/s Jaman Singh Pabu Singh, instead of two partners there are four partners, all the four partners were not presenting (Downloaded on 05/04/2021 at 08:48:22 PM) (8 of 13) themselves for signing the DPSL agreement with documents and on that count also the decree deserves to be set aside.
Learned counsel appearing for the respondents vehemently opposed the submissions. It was submitted that the entire submissions of the appellants Bal Kishan and Ganpat Singh are ex-facie against the voluminous evidence which have been placed on record, which has been considered by both the courts below, wherein, throughout the plaintiffs have been working as partners of the firm in so much so the appellant Ganpat Singh himself has filed an affidavit in the appeal arising from the temporary injunction application indicating the plaintiffs as partners of the firm and after the death of Kunney Singh and retirement of Ganga Devi, plaintiffs along with Bal Kishan and Ganpat Singh remained partners of the firm and that all of them continued to be partners, which affidavit was signed on 29/7/1999.
Further submissions were made that the appellant No.1 malafidely by claiming that the firm stood dissolved in the year 1983, filed a suit for dissolution and accounts and for mandatory injunction, which suit stood dismissed on 20/4/2011 (Ex.31) and no appeal was filed against the said judgment, which fortifies the malafides on the part of the appellants.
It was emphasized that throughout, the plaintiffs have been acting as partners of the firm even while dealing with BPCL and reliance has been placed on documents, Ex. 15 to 21, which pertain to various inspection notes, wherein, both the plaintiffs have signed the inspection notes as partners of the firm. It was submitted that even the Income Tax returns, which specifically indicate the plaintiffs as partners of the firm along with their share in the firm, have all been produced and marked as exhibits. (Downloaded on 05/04/2021 at 08:48:22 PM)
(9 of 13) Further, defendant Bal Kishan was confronted with the said documents during the cross examination, who has admitted all the documents and contents thereof and, therefore, nothing remains on merits of the dispute, wherein, the plaintiffs have all along been acting and were being treated as partners of the firm during the entire period right upto the point of time when the dispute arose in the year 1994.
Attention was drawn the the assessment order dated 17/8/1993 passed by the ACIT, Circle Jodhpur (Ex.36), in relation to firm M/s. Jaman Singh Pabu Singh, wherein, the plaintiff Budh Singh had attended the hearing on behalf of the firm and in the assessment order, names of partners with their ratio of profit was indicated.
It was submitted that the plea of limitation sought to be raised has no substance inasmuch as all along the plaintiffs have been treated as partners and only in the year 1994, the dispute arose, which is reflected in the compromise (Ex.1/A) dated 27/10/1994 and, therefore, the suit having been filed within three years was well within limitation.
Further submissions were made that alleged non-filing of partnership deed is of no consequence as the document (Ex.3), clearly supports the case of the plaintiffs.
Submissions were also made that insofar as impleadment of appellants as parties to the suit and issue of limitation is concerned, the plaintiffs had not sought any relief in the suit against them. Only by filing written statement, they contested the relief claimed against BPCL, which is decided by the court and as the suit filed by Bal Kishan in respect of their contention already stood dismissed, nothing more is required qua the said (Downloaded on 05/04/2021 at 08:48:22 PM) (10 of 13) defendants-appellants and, therefore, entire plea regarding the suit being barred by limitation is ex-facie baseless and is based on distortion of Ex.4 and Ex.6.
Regarding the plea of BPCL, it was submitted that the appeal filed by them has no substance as the company has already complied with the decree and that once the repetitive requests made by the plaintiffs were not acceded despite the fact that they were partners in the firm, the decree to include their names, based on the fact that they were partners in the firm, could very well be granted and has rightly been granted by the trial court and upheld by the first appellate court and, therefore, the submissions made by BPCL also do not give rise to any substantial question of law.
It was prayed that the appeals be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
Both the courts have concurrently found that the plaintiffs were partners of the firm M/s. Jaman Singh Pabu Singh, based on numerous documents, which were filed and exhibited. The defendant Bal Kishan was confronted and he had also admitted the said documents. The large number of documents produced i.e. Ex. 15 to 21 (inspection reports of the retail outlet at Sumerpur by BPCL bearing signatures of either of the plaintiffs as partner of the firm during the period 27/8/1994 to 18/2/1998), Ex. 33 (Account opening form of Pali Central Cooperative Bank Ltd., Branch - Sumerpur, bearing signatures of plaintiffs), Ex.34 (Communication of Pali Central Cooperative Bank Ltd. dated 24/4/1997 indicating that Current Account in the name of M/s. Jaman Singh Pabu Singh with plaintiffs also as partners was opened on 28/8/1986 and was (Downloaded on 05/04/2021 at 08:48:22 PM) (11 of 13) in operation), Ex. 35 [Computation of total income for accounting year 1/4/1997 to 31/3/1998 for Assessment Year 1999 - 2000 coupled with form No. 3 CD (Ex. 44) indicating the plaintiffs as partners], Ex. 36 (Assessment order dated 17/8/1993 for Assessment Year 1991-1992 for the firm passed by ACIT, Circle - Jodhpur indicating the plaintiffs as partners), Ex. 37 (Affidavit filed by plaintiff Ganpat Singh in the present suit) and Ex. 38 (Judgment dated 27/3/1998 in a suit for partition filed qua the firm by Madho Singh s/o erstwhile partner Pabu Singh, wherein, plaintiffs were also impleaded as parties) do not leave any manner of doubt that the plaintiffs are partners of the firm in question.
Attempts made by the appellants, Bal Kishan and Ganpat Singh, to have formed new partnership firm with the same name and seek relief against the plaintiffs based on the same, came to a naught by dismissal of their suit vide judgment (Ex.31) and decree (Ex. 32), which have become final.
Submissions made regarding the suit being barred by limitation is primarily based on the documents Ex.4 and Ex.6, which are notices issued by the plaintiffs and their counsel. The relevant portion reads as under:
"5. You are well aware that on account of the letter dt.15.5.85 serious dispute arose between the partners in as much as some criminal cases were also filed. Damage was also caused to the petrol-pump by some of the partners and their family members. The dispute was however resolved by the area sales officer Udaipur when he intervened in the matter and pacify the partners. Since then the petrol-pump is being run by all the four partners."
Notice (Ex.4) was given on 8/1/1997 and notice (Ex.6) was given on 9/6/1997 and if the above averment is read in the context of compromise between the parties (Ex.1), the same only refers to a letter dated 15/5/1985 and indicates that the dispute (Downloaded on 05/04/2021 at 08:48:22 PM) (12 of 13) arose between the partners on account of letter dated 15/5/1985, which resulted in some criminal cases and damage to the petrol pump and further refers to the dispute having been resolved by the Area Sales Manager when he intervened in the matter. The said indication made in the notice nowhere indicates that the letter of the year 1985 was in the knowledge of the plaintiffs. The only reference is that the said letter led to dispute and though no material is available on record, the entire criminal aspect also appeared in the year 1994 only. Therefore, the reliance placed on the contents of documents (Ex.4 and 6) to claim that the cause arose in 1985 have apparently no substance.
The submissions made that in absence of partnership deed, only based on Ex.3, which is a copy of entry of Register of Firm, no relief could be granted, also has no substance inasmuch as Section 68 of the Partnership Act, 1932 reads as under:
"68. Rules of evidence. - (1) Any statement, intimation or notice recorded or noted in the Register of firm shall, as against any 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."
(emphasis added) Sub-section (2) of Section 68 clearly provides that a certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of registration of such firm/contents of any statement, intimation or notice recorded or noted therein. The said copy of entry (Ex.3) clearly indicates the status of the firm in the year 1976 having six partners including plaintiffs, changes on 20/12/1976 due to death of Pabu Singh and admission of Smt. Ganga Devi and further changes on 23/9/1992, whereby, (Downloaded on 05/04/2021 at 08:48:22 PM) (13 of 13) Smt. Ganga Devi retired and Kunney Singh died. The copy of entry has been issued on 18/11/1999, till the said date the firm did exist on the Register of Firms and, therefore, the entire plea sought to be raised that the firm stood dissolved in the year 1976 and/or in the year 1983, has apparently no substance, besides the fact that non-production of the partnership deed by itself cannot be a reason to hold against the plaintiffs.
In view of the above discussion, the plea sought to be raised by the appellants seeking to claim the suit as barred by limitation and other issues sought to be raised do not give rise to any substantial question of law.
So far as the submissions made by counsel for BPCL is concerned, the plea raised by BPCL regarding its insistence to continue with the partners, who have signed the dealership agreement dehors the status of the partnership, which since 1976 had the plaintiffs as partners, cannot be countenanced. The submission made that BPCL should not be directed by the civil court to include the names in the dealership agreement, is essentially questioning the jurisdiction of the civil court in granting such a direction based on the plea raised and proved in this regard, which submission apparently has no substance and the same also does not give rise to any substantial question of law. It is besides the fact that the appellant BPCL has already implemented the judgment & decree passed by the trial court.
In view of the above discussion, no substantial question of law arises in the present appeals. The same are, therefore, dismissed.
(ARUN BHANSALI),J baweja/-
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