Bangalore District Court
Smt.Susmita Panigrahi vs M/S.Ransasias Biotech on 18 January, 2020
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 18th DAY OF JANUARY 2020
Present: Sri.Manjunatha.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.760/2014
Plaintiff : Smt.Susmita Panigrahi,
Aged about 33 years,
W/o.Sri.Dilip Kumar Choudhury,
Residing at G1-Block 2,
Parijatha Apartments,
Geenglen Layout, Beelandur,
Bangalore-560 037.
(By Sri.SSZ, Advocate)
-Vs-
Defendants : 1. M/s.RansAsias Biotech,
No.506, Silicon Towers,
209/1, 4th Cross,
Byrasandra, C.V.Raman Nagar
Post, Bangalore-560 093.
Represented by its Managing
Partner, Mr.Briji Mohan Vasishta,
S/o.Late Devaki Nandan Vasishta,
Aged about 67 years.
2. Mr.Brij Mohan Vasishta,
S/o.Late Devaki Nandan Vasishta,
Aged about67 years,
"Managing Partner"/Authorised
Signatory, Trans Asias Biotech,
Residing at No.506, Silicon
Towers, 209/1, 4th Cross,
Byrasandra, C.V.Raman Nagar
Post, Bangalore-560 093.
(Sri.MRS.,Advocate)
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Date of institution of the suit : 27-01-2014
Nature of the suit : Money suit
Date of commencement of
recording of the evidence : 28-08-2018
Date on which the judgment was : 18-01-2020
pronounced
Total duration : Years/s Month/s Day/s
05 11 21
(MANJUNATHA.G.A.)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
Plaintiff has filed this suit against the defendants for dissolution of Partnership Firm, for recovery of Rs.14,20,000/- (Rupees Fourteen Lakhs Twenty Thousand) with future interest at 24% p.a. and for Permanent Injunction.
2. In brief, case of plaintiff is as follows:-
Defendant No.1 is a Registered Partnership Firm. Defendant No.2 is the Managing Partner of the said Firm. The husband of plaintiff and defendant No.2 are good friends. Defendant No.2 sought 4 for financial assistance during 2008 with a promise to repay the amount with 30% interest per annum. Accordingly, the husband of plaintiff has paid a sum of Rs.23,50,000/-. Plaintiff was inducted as a Partner by way of Deed of Reconstitution on 1-6-2010. She has paid a sum of Rs.10,00,000/-. She has also paid the remaining amount on different dates. Now the defendants are liable to pay Rs.14,20,000/-.
The Deed of Re-constitution of Partnership has never seen the light of its day. The defendants have played fraud on the plaintiff. Defendant No.2 has misappropriated the funds. Then the plaintiff approached the Registrar of Firms on 25-10-2013. She came to know that she was made as a nominal Partner. Therefore, pleading cause of action to the suit at Para No.15 of the plaint, it is prayed to decree the suit.
3. Defendant Nos.1 and 2 have appeared through their Advocate and filed Written Statement admitting acquaintance with the husband of plaintiff. The husband of plaintiff paid a sum of Rs.23,50,000/- to defendant No.1 Firm is denied. The plaintiff has invested a sum of Rs.10,00,000/- as capital in the first Defendant Firm is denied. The plaintiff has paid a sum of Rs.10,00,000/- under the 5 Deed of Re-constitution of Partnership Deed dated 1-6-2010 is denied. The defendants agreed to pay interest at the rate of 24% p.a. is denied. The defendants are liable to pay the suit claim is denied. Rest of the plaint averments are denied as false. Accordingly, it is prayed to dismiss the suit with cost.
4. Based on the said pleadings, the following issues are framed:-
1. Whether the plaintiff proves that she is to be removed from partnership firm under dissolution of firm?
2. Whether plaintiff proves that she is a partner in Reconstitution of Firm on totally securing a sum of Rs.10,00,000/-?
3. Whether suit is bad for non-joinder of necessary parties?
4. Whether there is no cause of action for the suit?
5. Whether defendants prove Profits and Loss are proportionately made to partners?
6. Whether defendants prove the amounts standing in the credit of plaintiff is Rs.85,699/- as per Audit Report?6
7. To what relief (or) orders?
5. The husband of plaintiff is examined as P.W.1 on the strength of Ex.P.1 - Special Power of Attorney. In his evidence Exs.P.2 to P.19 + P.20 and P.21 are marked. The second defendant is examined as D.W.1. and got marked Exs.D.1 to D.11.
6. My findings to the above issues are as follows:-
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : Does not survive for
consideration
Issue No.4 : Does not survive for
consideration
Issue No.5 : Does not survive for
consideration
Issue No.6 : Does not survive for
consideration
Issue No.7 : As per final order for the
following:-
REASONS
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7. Issue Nos.1 and 2:- The plaintiff in her suit is seeking for dissolution of defendant No.1 - Partnership Firm. She is asking for recovery of a sum of Rs.14,20,000/- with interest at the rate of 24% p.a. from the date of suit till its realisation from the defendants and she has also sought for the relief of Permanent Injunction restraining the defendants from using her name as a Partner of first defendant - Firm. The defendants have appeared through their Counsel and have filed Written Statement. Accordingly, this Court has framed issues on 2-12- 2017. Accordingly, the matter was posted for recording evidence of plaintiff. Nearly six adjournments were granted to the plaintiff to commence her evidence. The Order sheet dated 18-7-2018 discloses that an adjournment application was filed seeking time to lead evidence. The same was allowed on cost of Rs.1,000/-. The suit was adjourned to 28-08-2018. On the said day, an application under Order 3 Rule 2 CPC was filed. The same was allowed. The husband of plaintiff Mr.Dilip Kumar Choudhury was permitted to adduce evidence on behalf of his wife Smt.Susmita. On 28-8-2000 itself, Mr.Dilip Kumar Choudhury is examined as P.W.1, Exs.P.1 to P.19 are marked. The suit was adjourned to 7-9-2018 for cross-examination. 8 On 7-9-2018, the Learned Counsel for the defendants cross-examined P.W.1 in part which reads like this:-
"It is true that verification of the plaint is signed by my wife. It is true that my wife is resident of the address mentioned in the cause title of the plaint. But witness says my and my wife are now residing at Gulf country. It is false to suggest that right now my wife is residing in the address mentioned in the cause title of the plaint. It is true that plaintiff is the partner with defendant No.1 partnership firm. But witness says I am also aware of the transactions to say about the subject matter of the suit. I am working from 2011 in Gulf country. It is true that I am come to Bangalore for once and stay in Bangalore 10-15 days in a year. It is false to suggest that I cannot have personal knowledge with regard to the transaction held in between the plaintiff and defendant No.1 in the rest of the year. I knew the defendant No.2 since year 2002. It is true that in the year 200 the defendant No.2 was the Director of Company called RMP Builders for constructions at Bangalore. It is true that at that time defendant No.2 was constructing apartment Silicon Towers at Bangalore C.V.Raman constructing apartment Silicon Towers at Bangalore C.V.Raman Nagar".
As could be seen from the above said cross-examination, P.W.1 was questioned in general. The facts of the case were never suggested to P.W.1. In all the questions involving the suit transaction, the dispute between the parties touching issue Nos.1 and 2 or other issues 9 were not at all put to P.W.1. As per the Order sheet dated 7-9-2018, the cross-examination was deferred on the request of the advocate for defendant. Thereafter, it appears P.W.1 was not present on 11-9-2018 and on 23-10-2018 Finally, it was adjourned to 19-11-2018 for further cross-examination.
8. The order sheet dated 19-11-2018 reads like this:-
"P.W.1 called out. Absent.
Hence, Cross-examination of P.W.1 is taken as nil. For defence evidence 18-12-2018".
As on 19-11-2018 further cross-examination of P.W.1 was taken as nil. Since 19-11-2018 till date no attempt is made by the Learned Advocate for plaintiff on record to keep P.W.1 present or plaintiff to complete evidence. On the other hand, the Learned Counsel for plaintiff simply participated in the day to day affairs for the suit. In fact, this suit was before Commercial Court. The same came to be transferred to this Court. None of the Advocates on record brought to the notice of the Court about non cross-examination of P.W.1. Only during the time of arguments, the Learned Advocate for 10 defendants pointed out this defect. But, the Learned Counsel for plaintiff was not ready to keep present P.W.1. On the other hand, he wanted to encash admissions given by defendant No.2 in his cross- examination.
9. Defendant No.2 is examined as D.W.1. In his evidence Exs.D.1 to D.11 are marked. At page No.13, D.W.1 has deposed like this:-
"It is true to suggest that in Ex.D.9 for the year 2013-14, as on 31-3-2014 capital amount of plaintiff is shown as Rs.13,85,799/- is correct. It is true to suggest that in Ex.D.10, the amount mentioned in Ex.D.9 is reflected i.e., Rs.13,85,799/-".
Emphasizing on this admission or this piece of evidence, the Learned Advocate for plaintiff prayed the Court to decree the suit. Plaintiff is not entitled for decree of the suit. Because, plaintiff has not faced the cross-examination from the defendants. Firstly, the plaintiff was expected to enter the witness box. She did not. However, her husband entered into the witness box to speak on behalf of his wife on the strength of Ex.P.1 - SPA. But, he never cared to 11 appear before the Court to face the complete cross-examination. His cross-examination on one particular day is full of general questions. Not even a single question is posed about the dispute involved in the present suit. Therefore, in all the probabilities it can be said that there is no evidence on the side of plaintiff. The Court ought to have examined this circumstance and would have dismissed the suit for lapses on the part of plaintiff. On the other hand, the Court posted the matter for recording evidence of defendants and now, the Learned Counsel for plaintiff who is not able to keep present P.W.1 for further cross-examination wants to take benefit of the evidence given by D.W.1. The same is not permissible. In strict sense, there is no evidence from the side of plaintiff on issue Nos.1 and 2. Accordingly, issue Nos.1 and 2 are answered in the negative.
10. Issue Nos.3 to 6:- In view of finding on issue Nos.1 and 2, there is no necessity of giving finding on these issues. Again there is no evidence of plaintiff on these issues also. Accordingly, issue Nos.3 and 4 does not survive of consideration.
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11. Issue No.7:- In view of findings on issue No.1 & 2, I proceed to pass the following:-
ORDER Suit of plaintiff is dismissed with cost.
Draw Decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 18 th day of January 2020) (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : SRI.dILIP Kumar Chudhury Witnesses examined on behalf of the defendants.
D.W.1 : Sri.Brij Mohan Vasishta 13 Documents marked on behalf of the plaintiff.
Ex.P.1 : Original SPA executed by the
plaintiff
Ex.P.2 : The summary accounts of ICICI Bank belongs to
SPA Holder 31-8-2010.
Ex.P.3 : The summary accounts of ICICI Bank belongs to
SPA holder 31-8-2010
Exs.P.4: Accounts extract of SBI (4)
to P.7
Ex.P.8 : Notarised copy of Accounts statement of
plantiff of ICICI Bank
Ex.P.9 : Accounts extract of plaintiff belongs to
ICICI Bank dated 31.5.2010
Ex.P.10: Application submitted before the District
Registrars of Firms dated 31-10-2013.
Ex.P.11: Telephone bill with call records (3 pages) Ex.P.12: Certified Copy of the Regsitrar Firms with regard to 1st defendant firm Ex.P.13: Certified copy of the partnership deed dated 16.5.2009 Ex.P.14: Certified copy of deed of recosntituion of partnerhsip firm dated 1-6-2010 Ex.P.15: Certified copy of the profit and loss account of the 1st defendant (2 pages) 14 Ex.P.16: Certified copy of the capital account of 1st defendant firm ending 31-3-2011 Ex.P.17: Certified ocpy of the capital account of 1st defendnat firm ending 31.3.2012 Ex.P.18: Certified copy of the capital account of 1st defendnat firm ending 31.3.2013 Ex.P.19: Certified copy of the capital account of 1st defendant firm ending 31.3.2014 (3 pages) Documents marked on behalf of the defendants.
Ex.D.1: Certified copy of the Partnerhsip Deed, dated 16-5-2009 Ex.D.2: Certified copy of balance sheet of first defendant firm for the year ending 31-3-2011 Ex.D.3: Certified copy of balance sheet for the year ending 31.3.2012 Ex.D.4: Certified copy of ITR of first defendant firm for the assessment eyar 2013 and 2014 Ex.D.5: Certified copy of balance sheet of first defendant firm for the year ending 31.3.2013 Ex.D.6: Certified copy of ITR of first defendant firm for the assessment year 2014 and 2015 Ex.D.7: Certified copy of balance sheet for the year ending 31-3-2014 Ex.D.8: Certified copy of ledger accounts Ex.D.9: Certified copoy of Ledger Account Extract 15 Ex.D.10: Certified copy of Ledger Account extract consisting Sri.Jeetendra Kumar another partner of 1st defendant firm Ex.D.11: Certified copy Ledger account extract relating to Sri.Zulfaquar Ail another partner of first defendant firm (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru.
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