Madras High Court
Dr.Nabaneeta Padhy vs Dr.V.Munuswamy @ Thomas on 25 July, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :25-07-2012
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
O.A.Nos.869 to 874 of 2011
and
Application Nos.5205, 5206 to 5208 of 2011
Dr.Nabaneeta Padhy : Petitioner
vs.
Dr.V.Munuswamy @ Thomas : Respondent
Prayer in O.A.No.869 of 2011: Petition filed under Order XIV Rule 8 of O.S. Rules r/w section 9 of Arbitration and Conciliation Act, 1996 to grant an order of injunction restraining the respondent, his men, servants, agents or anyone claiming under or through him, from in any manner interfering with the applicant exercising her rights as partner of the firm 'CHENNAI FERTILITY CENTRE' and having its operations both at the Firm's Fertility Centre at No.1 & 2, SBI Officers Colony, Arumbakkam, Chennai-600 106 and the Firms' Training Centre at No.22/6, Razak Garden Road, Arumbakkam, Chennai pending final disposal of Arbitral proceedings.
O.A.No.870 of 2011: Petition filed under Order XIV Rule 8 of O.S. Rules r/w section 9 of Arbitration and Conciliation Act, 1996 to grant of order injunction restraining the respondent his men, servants, agents or anyone claiming under or though him, from employing or continue to employ any person as the medical practitioner, Doctor or Gyneacologist of the firm CHENNAI FERTILITY CENTRE pending final disposal of the above O.A.
O.A.No.871 of 2011:- Petition filed under Order XIV Rule 8 of O.S. Rules r/w section 9 of Arbitration and Conciliation Act, 1996 for an order of injunction restraining the respondent his men, servants, agents or any one claiming under or through him from making any further appointments to the employment of the firm CHENNAI FERTILITY CENTRE without applicant's knowledge and consent pending disposal of the above O.A.
O.A.No.872 of 2011:- Petition filed under Order XIV Rule 8 of O.S. Rules r/w section 9 of Arbitration and Conciliation Act, 1996 for an order of injunction restraining the respondent his men, servants, agents of any one claiming under or through him from running any training course either at its Fertility Centre at No.1 & 2 SBI Officers Colony, Arumbakkam, Chennai 600 106 or at the firm's Training Centre at No.22/6, Razak Garden Road, Arumbakkam, Chennai in the name of 'EMBRYOGENESIS' or any other name pending final disposal of the above O.A.
O.A.No.873 of 2011: Petition filed under Order XIV Rule 8 of O.S. Rules r/w section 9 of Arbitration and Conciliation Act, 1996 for an order of injunction restraining the respondent his men, servants, agents or anyone claiming under or through him from operating the bank account of the firm CEHNNAI FERTILITY CENTRE, namely Account No.0493250000627 of HDFC Bank, Mogappair Branch, Chennai, without the applicant's joint signature for such operation pending final disposal of the above O.A.
O.A.No.874 of 2011: Petition filed under Order XIV Rule 8 of O.S. Rules r/w section 9 of Arbitration and Conciliation Act, 1996 for an order of mandatory injunction directing the respondent his men, servants, agents or anyone claiming under or through him, to deposit all amounts collected by the firm CHENNAI FERTILITY CENTRE at its Fertility Centre at No.1 & 2 SBI Officers Colony, Arumbakkam, Chennai 600 106 in the account of the firm maintained in State Bank of India, Jai Nagar branch, bearing Account No.31450948257 pending final disposal of the above O.A.
For Applicant/Petitioner : Mr.T.V.Ramanujan
Senior Advocate
for Mr.Manoj Sreevalsan
For Respondent : Mr.A.Palaniappan
COMMON ORDER
The petitioner/applicant filed the above applications seeking for the relief of injunction, both prohibitory and mandatory and for the appointment of herself as 'Party Receiver' and also for the appointment of an Advocate Commissioner to take inventory of the articles found in the premises of the partnership firm.
2.The case of the petitioner/applicant is that she and the respondent started a partnership firm under the name and style 'Chennai Fertility Centre and Research Institute' and a Deed of Partnership was executed on 20.08.2010. The partnership is one at Will of both the parters, namely the petitioner/applicant and the respondent and both of them are having equal share. The partnership firm rented out a premises in 'Appasamy Medicare Centre Private Limited' and the firm was run by the partners in that premises.
3.It is also stated that the firm borrowed a sum of Rs.65,00,000/- from State Bank of India for the Centre and the firm also purchased various machineries, equipments and instruments for running the Centre as stated in paragraph 10 of the affidavit filed in support of the applications filed by the petitioner/applicant. Further, having realised the successes of the partnership firm, the petitioner/applicant and the respondent have decided to start a Training Centre for imparting training to conduct IVF procedure and hired a premises at 22/6, Razak Garden Road, Arumbakkam, Chennai, for establishing the Training Centre and a Training Centre was also established, which started its operations in February 2011 and three batches have successfully completed the training and received their certificates from the Training Centre of the firm till October 2011.
4.It is further stated that the firm invested about Rs.43,00,000/- in setting up the Training Centre at 22/6, Razak Garden Road, Arumbakkam, Chennai and the firm purchased various machineries, equipments and instruments as stated in paragraph 13 of the affidavit filed by the petitioner/applicant. The firm opened two current accounts in two banks in the name of the firm and one bank is State Bank of India, Jai Nagar Branch, Chennai and the other account is opened in HDFC Bank, Mogappair Branch, Chennai, which are used mainly for transactions concerning the Training Centre.
5.It is further submitted that the money received from the patients of the Fertility Centre was also routed through HDFC Bank account. It is further submitted that S.B.I account is operated by the petitioner/applicant and the respondent is operating HDFC Bank Account. The EMI for the loan taken by the firm is also being paid from the account of the firm with State Bank of India. It is further submitted that till 3rd week of October 2011, both the Fertility Centre and the Training Centre were running smoothly and in the last week of August 2011, the respondent informed the petitioner/applicant, his interest to take over the business of the firm to the exclusion of the petitioner/applicant and thereafter, difference of opinion started between the partners.
6.It is further stated that towards the end of September 2011, the respondent has directed the staff of the firm not to deposit the collections of the Fertility Centre of the firm into the State Bank of India and the collections are deposited into HDFC Bank account maintained by the respondent. Further, the respondent also appointed Doctor Ramya, a Gyneacologist, without the knowledge and consent of the petitioner/applicant to work in the Fertility Centre and according to the petitioner/applicant, the said Dr.Ramya was appointed only to take the role of the petitioner/applicant. Further, the respondent also informed the petitioner/applicant on 25.10.2011 not to attend the Fertility Centre and practically prevented the petitioner/applicant from participating in the management of the firm.
7.Further, the respondent started a Training Centre under the name and style 'EMBRYOGENESIS' in the rented building of the firm at No.22/6, Razak Garden Road, Arumbakkam, Chennai and the respondent has no right to start a new business in the premise taken on lease by the firm and the respondent is also using the machineries, equipments and instruments for his own business, namely 'EMBRYOGENESIS'. In these circumstances, the petitioner/applicant has filed these applications for various reliefs, namely:-
(a)for injunction restraining the respondent from interfering with the applicant exercising her right as partner of the firm 'Chennai Fertility Centre' and having its operation, both at Nos.1 & 2, SBI Officers Colony, Arumbakkam, Chennai 600 106 and at No.22/6 Razak Garden Road, Arumbakkam, Chennai.
(b)for injunction restraining the respondent from employing or continue to employ a person as Medical Practitioner or Doctor or Gyneacologist of the Firm 'Chennai Fertility Centre' pending final disposal of the Arbitral Proceedings.
(c).for an order of injunction restraining the respondent from giving any other appointment in the employment of the firm 'Chennai Fertility Centre' without the knowledge and consent of the petitioner/applicant pending disposal of the application.
(d).Injunction restraining the respondent from running any training course, either at its Fertility Centre at Nos.1 & 2, SBI Officers Colony, Arumbakkam, Chennai or at the firm Training Centre at No.22/6, Razak Garden Road, Arumbakkam, Chennai, in the name of 'EMBRYOGENESIS.
(d).for injunction restraining the respondent from operating the bank account of the firm 'Chennai Fertility Center' bearing Account No.04932560000527 maintained with HDFC Bank, Mogappair Branch, Chennai.
(e).Mandatory injunction to deposit all the amounts collected by the firm 'Chennai Fertility Centre' at its Center at Nos.1 & 2 SBI Officers Colony, Arumbakkam, Chennai 106, into the account of the firm maintained in SBI, Jai Nagar Branch, Chennai bearing Account No.31450948257.
(f).directing the respondent to deposit all the amounts collected by him for training in the name of 'EMBRYOGENISIS' or otherwise for training such candidates in the premises of the firm 'Chennai Fertility Centre.'
(g).Mandatory injunction directing the respondent to furnish true copies of all the accounts and other financial and administrative documents and records of all amounts collected by the respondent for training programs and other purposes in the name of the firm and in the name of 'EMBRYOGENISIS.' and appointing an Advocate Commissioner to note down and make an inventory of all the movables properties of the firm 'Chennai Fertility Centre' at both places and appointing the applicant as 'Party Receiver' to oversee and supervise overall the functioning of the affairs and business of the firm 'Chennai Fertility Centre.'
8.The respondent filed a detailed counter denying various allegations made in the affidavit. Nevertheless, the respondent admitted the partnership agreement entered into by the petitioner/applicant and the respondent under the name of 'Chennai Fertility Centre and Research Institute' as stated by the petitioner/applicant. But the respondent stated that the machineries, equipments and instruments, which are listed in Annexure-1 to the counter affidavit were purchased from out of the loans availed by the firm from the State Bank of India and and the machineries, equipments and instruments listed in Annexure-II belongs to him absolutely and they are placed by him for the operation of the firm and the firm has no right in these equipment, machineries and other articles.
9.He further blamed the applicant about her performance as a partner and also alleged that the applicant has misappropriated various amounts of the firm and he also made various allegations, which are not relevant for deciding these applications. Therefore, I have not adverted to such allegations in this common order.
10.He further submitted that the applicant left the firm on 30.10.2011 and she has not performed as a partner, as per the partnership deed and she is running the 'Chennai Fertility Centre. He further submitted that the premises at 22/6 Razak Garden Road, Arumbakkam, Chennai was rented for the purpose of collecting semen from the patients for the purpose of IVF process, as the patients were complaining that the hospital ambiance is totally not conducive for them to collect and handover semens. Therefore, a small flat premises at 22/6 Razak Garden Road, Arumbakkam, Chennai was taken on lease for the purpose of augmenting income and to provide privacy to the patients for the aforesaid purpose. He further stated that an idea of starting an Institute for training the Embryology Assistance and other professionals in the field of Embryology was solely his exclusive one and the training program was commenced by him and it was his brain child and the applicant cannot claim any right or share in the Training Centre. The Training Centre was not part of the activities of the firm and the firm has nothing to do with the Training Centre. He further stated that after the expiry of the lease period in respect of the premises at 22/6, Razak Gardan Road, Arumbakkam, Chennai, the respondent wanted to continue the training program started by him and he is continuing the same under the name and style of 'International School of Embryology' at the aforesaid premises and it is his independent and separate venture and the partnership firm has nothing to do with that. He also complained that the petitioner left the firm on 30.10.2011 and also removed some substantial records as stated in paragraph 26 of the counter affidavit. In short, the respondent claimed exclusive right in respect of the Training Centre and denied any role or any right to the applicant in respect of the Training Centre. Therefore, the respondent submitted that the petitioner/applicant, having left the partnership firm on 30.10.2011, cannot ask for any injunction restraining the respondent from interfering with the right of the petitioner as partner of the firm 'Chennai Fertility Centre' at both premises and the petitioner/applicant is not entitled to the relief of injunction. He further submitted the the Training Centre is his exclusive business and the petitioner has no right or claim over the same and therefore, the petitioner cannot seek any relief in respect of the Training Centre and also stated that the petitioner cannot be appointed as 'Party Receiver', as she already left the firm and the activities of the firm is being carried out by the respondent only and therefore, the petitioner cannot claim any relief prayed for.
11.Mr.T.V.Ramanujan, the learned Senior counsel appearing for the petitioner/applicant reiterating the averments made in the affidavit, submitted that admittedly the firm started 'Chennai Fertility Centre' and it is also admitted that the firm had taken the premises at No.22/6 Razak Garden Road, Arumbakkam, Chennai for imparting training on lease and the same is evidenced by the website of the said Centre and therefore, it cannot be contended by the respondent that the Training Centre has nothing to do with the partnership firm. He further submitted that the accounts produced by the applicant would also prove that the rents for the premises at 22/6, Razak Garden Road, Arumbakkam, Chennai, was paid by the firm and the respondent, having admitted the lease of the said premises by the firm, cannot contend that the Training Centre is run by him exclusively and the applicant has no right over the same.
12.He further submitted that both the activities of Chennai Fertility Centre and Research Institute at Appusamy Medicare Private Centre at Arumbakkam and at 22/6, Razak Garden Road, Chennai are the activities of the firm and as per the partnership firm, the applicant is having equal right in both the establishments and as a partnership firm and she cannot be prevented from participating in the management of the firm.
13.He further submitted that the respondent having started the Training Centre under the auspices of the firm, cannot start a different Training Centre in the name of 'EMBRYOGENESIS' in the same premises and it is also against the basic principle that a partner should not indulge in any similar activities, so long as, he continues to be a partner and therefore, the respondent cannot run any Training Centre in the name and style of 'EMBRYOGENESIS' and the respondent is also not entitled to run any Training Centre under the same name in the premises taken on lease by the firm. He, therefore, submitted that the respondent must be restrained by an order of injunction as prayed for in respect of the Training Centre run by him in the name of 'EMBRYOGENESIS'.
14.He further submitted that the collections from Chennai Fertility Centre at Arumbakkam, Chennai, belongs to the firm and therefore, the respondent is bound to account for the same and he must be directed to deposit all the deposits collected on behalf of the firm into the account of the firm maintained with SBI and the collections from the Training Centre under the name and style of 'EMBRYOGENESIS' shall also be deposited into the Bank account of the firm and therefore, suitable mandatory injunction has to be passed, directing the respondent to deposit the amount collected from the Chennai Fertility Centre and from the firm Training Centre under the name and style of 'EMBRYOGENSIS' into the bank account. He further submitted that being a partner, the applicant is entitled to participate in the management and admittedly, the relationship between the partners got strained and the respondent cannot allow to run the partnership firm to the exclusion of the applicant and therefore, the applicant must be permitted to participate in the management of the firm and interim injunction has to be issued against the respondent and the applicant is also entitled to be appointed as 'Party Receiver' to oversee and supervise the other functions of the firm Chennai Fertility Centre and therefore, prayed for passing of an order as prayed for.
15.Mr.A.Palaniappan, the learned counsel appearing for the respondent vehemently contended that the applicant having left the firm in October 2011 and after issuing a notice of dissolution of firm, is not entitled to participate in the affairs of the firm or management and her only remedy is to sue for the accounts and therefore, she cannot claim any right to participate in the management of the firm. He further submitted that the machineries, equipments and instruments found in the Training Centre did not belong to the partnership firm and as stated in the counter, the machineries, equipments and other articles mentioned in the list Annexure I and II are the separate properties of the respondent and they were not purchased from the loans availed by the partnership firm and the Training Centre was the brain child of the respondent and he had requisite training and experience in that field and the applicant being a Gyneacologist has no adequate training and therefore, she cannot claim any right over the Training Centre.
16.Further, the Training Centre in the name and style of 'EMBRYOGENESIS' was started by the respondent as his own, though it was started in the same premises and therefore, the applicant cannot claim any right over the same and the applicant cannot claim any share in the profit from that Training Centre. Further, admittedly, the firm is run by the respondent and therefore, the applicant cannot be appointed as 'Party Receiver' and till the disposal of the Arbitral Proceedings, the respondent is entitled to run the business of the firm and the business of the firm is confined only to the 'Chennai Fertility and Research Centre and it cannot be extended to the Training Centre, namely 'EMBRYOGENESIS'. He, therefore, prayed that the applications filed by the petitioner/application are liable to be dismissed.
17.I passed an order in Application No.5207 of 2011 on 09.11.2011 appointing an Advocate Commissioner to take the inventory of machineries, equipments and instruments found in the places of the firm, namely at Nos.1 and 2, SBI Officers Colony Arumbakkam, Chennai and at No.22/6, Razak Garden Road, Arumbakkam, Chennai and the learned Advocate Commissioner also took the inventory of the machineries, equipments, instruments and other articles at those places and submitted a report. As the order was passed in Application No.5207 of 2011, dated 09.11.2011 for appointment of Advocate Commissioner and the Advocate Commissioner has also inspected the premises and submitted a report, that application is closed.
18.Admittedly, the partnership firm 'Chennai Fertility Centre and Research Institute' was started by the petitioner/applicant and the respondent on 28.02.2010 and there is no dispute regarding the same. It is also admitted that the business of the firm was running smoothly, till respondent appointed one Dr.Ramya as 'Gyneacologist' to work in the firm and thereafter, misunderstanding arose between the parties and even according to the applicant, she was prevented from attending Fertility Centre and Research Institute at SBI Officer Colony, Arumbakkam, Chennai. Therefore, a notice was sent by the petitioner on 03.11.2011 intimating the dissolution of the firm and called upon the respondent to render proper and true accounts and also for appointment of an 'Arbitrator' as per the terms of the partnership firm.
19.According to me, a reading of various averments in the affidavit as well as in the notice would make it clear that from November 2011 onwards the petitioner was not able to take part in the administration of the firm and the application was filed on 4th November 2011. Though, as per the Partnership Deed, both the parties are entitled to participate in the management of the firm, having regard to the admitted strained relationship between the parties and having regard to the fact that the applicant is not participating in the affairs and management of the firm from November 2011 and a notice of dissolution was issued dissolving the firm, the applicant, being a partner, is entitled to participate in the management and administration of the firm and that right cannot be denied to her. Therefore, in the interest of completing the dissolution of the firm, it would be advisable to permit the applicant also to take part in the management and administration of the firm and the relief prayed for in O.A.No.869 of 2011 seeking for injunction restraining the respondent from any manner interfering with the applicant exercising her rights as partner of the firm 'Chennai Fertility Centre and Research Institute, is granted and accordingly, O.A.No.869 of 2011 is allowed.
20.Though, the applicant is entitled to the relief of injunction from taking part in the management and affairs of the firm, the major issue to be decided is 'whether the firm can claim any right over the Training Centre, as per the claim of the applicant?
21.It is admitted that the Training Centre running at premises at 22/6, Razak Garden Road, Arumbakkam, Chennai was taken on lease by the firm and it is also evident from the lease deed, dated 01.12.2010. The respondent also admitted in paragraph 24 of the counter affidavit that the premises at 22/6 Razak Gardan Road, Arumbakkam, Chennai was taken on rent for the purpose of collecting the semen from the patients and it was taken on lease for the purpose of augmenting income and to provide privacy to the patients. Therefore, it is admitted by the respondent that the premises at 22/6, Razak Garden Road, Arumbakkam, Chennai was taken by the partnership firm. Though, the respondent vehemently contended that the Training Centre was not part of the activities of the firm, having regard to the fact that the premises where Training Centre is being run was taken on lease by the firm and the address of the website 'EMBRYOGENESIS' as shown in paragraph 38 of the typed set of papers filed by the applicant, would also confirm the same, it cannot be stated that the Training Centre is the exclusive property of the respondent and the firm has nothing to do with the Training Centre.
22.Further, it is also proved by the applicant that the rents for the premises, namely 22/6 Razak Garden Road, Arumbakkam, Chennai, is being paid from the account of the partnership firm. Therefore, the applicant is able to prima facie prove that the Training Centre is also a property of the firm and the respondent has not produced any material as on date to prove that it is his exclusive venture and the partnership firm has nothing to do with him.
23.Further, a reading of the advertisement found at page 38 of the typed set of papers would also make it clear that the Training Centre also belongs to the firm. Admittedly, the Email address of the Chennai Fertility Centre is 'chennaifertilitycenter.com'. At page 38, it is seen that International School for Embryology, namely 'EMBRYOGENESIS' is having the same Email address along with other two email addresses.
24.Further, the web advertisement is, dated 31.05.2011 and the faculty consists of the respondent and the applicant and other Doctors and of course, the Course Director is the respondent. Therefore, having regard to the fact that the International School of Embryology under the name and style of 'EMBRYOGENESIS' was established on 31.05.2011 and the petitioner was also one of the faculty members and the said International School of Embryology was started in the lease-hold premises of the firm and having regard to the admitted fact that the said International School of Embryology was started in collaboration with Chennai Fertility Centre, it cannot be contended by the respondent that it is his exclusive property and the firm has nothing to do with that.
25.Having established that in collaboration with Chennai Fertility Centre, the Research Institute was started under the name style of 'EMBRYOGENESIS' and the documents prima facie lead to the conclusion that it is the property of the firm, in my opinion, the applicant is entitled to claim share of profit from that firm. At the same time, the Training Centre is admittedly run by the respondent and therefore, having regard to the fact that it also belongs to the firm, no purpose would be served by restraining the respondent from running the Training Centre and it would be beneficial to both parties, if the respondent is allowed to run the Training Centre and render proper accounts for the same.
26.Further, having regard to the materials placed before me, I am of the prima facie opinion is that the Training Centre under the name and style of 'EMBRYOGENESIS' also belongs to the firm and the respondent cannot claim any exclusive right over the same.
27.It is admitted by the applicant that for running Chennai Fertility Centre and Research Institute, the role of Gyneacologist is very important and admittedly, the firm employed various persons, who are experts in various fields and the trouble started only after the appointment of Dr.Ramya by the respondent. Further, it cannot be disputed that for running the Fertility Centre and Training Institute, various Doctors from various disciplines are to be employed and other paramedical staff and administration staff are to be employed and any person running the Fertility Centre has to employ such persons to run the Centre effectively and smoothly and therefore, the applicant cannot seek for an order of injunction restraining the respondent from employing any persons in the firm Chennai Fertility Centre. However, having regard to the relief granted in Application No.5208 of 2011 by appointing the applicant as Party Receiver in respect of Chennai Fertility Centre, the respondent cannot interfere with the management of the Chennai Fertility Centre by the applicant and he cannot make any further appointment in that Centre. Hence, the reliefs sought in O.A.Nos.870 of and 871 of 2011 are ordered as above.
28.As I have held that those two businesses belong to the firm, the respondent is liable to account for the same, as he claims to be in management of Training Centre. Further, the applicant and the respondent as 'partners' are also liable to deposit the income from both the concerns into the respective bank accounts and therefore, O.A.No.874 of 2011 is ordered, directing both the parties to deposit the income from the two concerns into the two bank accounts as before.
29.In the judgment reported in AIR 1985 J & K 50, in the case of Tilak Chand Jam vs. Darshan Lal Jam and another, the learned Judge after relying upon the judgments reported in AIR 1955 Mad. 430 in the case of T.Krishnaswamy Chetty v. C.Thangavelu Chetty and AIR 1955 Mad 571, in the case of Muniammal v. P.M.Ranganatha Nayagar, laid down the following guidelines for appointment of a Receiver in a partnership concern:-
(i)A partner seeking appointment of a Receiver must have a strong case in his favour and claim asserted by him must be free from doubt.
(ii)That a partner seeking relief of appointment of a Receiver must further show that he has been excluded from partnership property in which he has an equitable interest and the partnership property as it stood on the day of dissolution had not been distributed in accordance with the provisions of Ss.46 and 48 of the Partnership Act.
(iii)A partner seeking relief must further show that partnership property including assets, goodwill, in which he has a share are retained by the partner against whom the relief is sought, in violation of the provisions of the Partnership Act.
(iv)There must be prima facie proof of misconduct against a partner who is said to be in control of the partnership property to the detriment of a partner who seeks the relief. Misconduct will be inferred if one partner carries on trade on his own account with the partnership property and assets of the dissolved firm. Inference of misconduct will be readily drawn if the partner who has control over the assets and partnership property of dissolved partnership has employed the share of the outgoing partner to his own use without his permission.
(v)Property, assets and goodwill being in possession of one partner to the exclusion of others is not ground for refusing to appoint a Receiver. It will be a different matter if it is shown that a partner seeking relief has expressly abandoned his share in the dissolved firm or has rendered himself disentitled by being guilty of laches or inordinate delay not explained by him.
(vi)Principles which govern the appointment of a Receiver as regards dissolved partnership are not the same which are taken into consideration in this regard in relation to a running partnership business, though element of mis-management of partnership property and its income is present in both cases.
(vii)The appointment of a Receiver in respect of a dissolved partnership is in the discretion of the Court and by exercising that discretion, the Court will be guided by the consideration of preserving and protecting the property and assets of the dissolved firm and will not permit them to be dissipated or used by one partner exclusively to the detriment and manifest disadvantage of the other partners who are excluded from such property and assets.
30.According to me, the above guidelines are applicable to the facts of the present case and the respondent is claiming exclusive right to the Training Centre, though it belongs to the partnership firm and he also prevented the applicant from participating in the management and administration of the firm.
31.Further, the respondent is also maintaining the Training Centre and it is admitted that for the Fertility Centre, the presence of 'Gyneacologist' is very essential. Therefore, in the interest of both parties, in my opinion, it is just and convenient to appoint the applicant as 'Party Receiver' for Chennai Fertility Centre, having its office at Nos.1 and 2, SBI Officers Colony, Arumbakkam, Chennai and the respondent is appointed as 'Party Receiver' for Training Centre under the name of 'EMBRYOGENESIS' having its office at No.22/6. Razak Garden Road, Arumbakkam, Chennai. Hence, the Application No.5208 of 2011 is ordered as above.
32.It is further made clear that the applicant cannot interfere with the management of the Training Centre under the name of EMBRYOGENESIS' having its office at No.22/6, Razak Garden Road, Arumbakkam, Chennai and the respondent cannot interfere with the management of Chennai Fertility Centre, having its office at Nos.1 and 2, SBI Officers Colony, Arumbakkam, Chennai. The Bank account maintained in State Bank of India, Jai Nagar Branch, bearing Account No.31450948257 shall be operated by the applicant 'Party Receiver' and the Bank account maintained in HDFC Bank, Mogappari Branch, Chennai, bearing account No.0493250000627 shall be maintained by the respondent 'Party Receiver'.
33.Having regard to the appointment of respondent Party Receiver and the respondent Party Receiver is directed to deposit the income from the Training Centre 'EMBRYOGENESIS into HDFC Bank bearing Account No.0493250000627043, injunction sought for in O.A.No.873 of 2011 cannot be granted and accordingly, O.A.No.873 of 2011 is dismissed.
34.As I have held that the concern, namely Training Centre run under 'EMBRYOGENESIS' also belongs to the partnership firm, the respondent cannot run any Training Centre or course, in any place under the same name, till the partnership firm is dissolved and therefore, the injunction prayed for in O.A.No.872 of 2011 is allowed as prayed for.
35.As I have appointed the applicant Party Receiver for Chennai Fertility Centre and the respondent Party Receiver for the Training Centre 'EMBRYOGENESIS' and both of them, are directed to deposit the income from both concerns into respective bank accounts. Hence, A.Nos.5205 and 5206 of 2011 have become infructuous and accordingly, these applications are dismissed as infructuous.
36.As the applicant and the respondent are appointed as 'Party Receiver' in respect of two concerns as stated above, they are liable to render proper accounts and either of them should not interfere with the management of another. The SBI account shall be operated by the applicant Party Receiver and the HDFC Bank shall be operated by the respondent Party Receiver and both the Party Receivers are entitled to withdraw the remuneration as mutually agreed between them. It is also open to the Party Receivers to apply to the Arbitrator for getting proper direction regarding future administration of the concerns.
37.Accordingly, these applications are disposed as follows:-
01.O.A.No.869 of 2011 is allowed.
02.O.A.Nos.870 & 871 of 2011 are ordered.
03.O.A.No.872 of 2011 is allowed.
04.O.A.No.873 of 2011 is dismissed.
05.O.A.No.874 of 2011 is ordered.
06.A.No.5207 of 2011 is closed.
07.A.No.5208 of 2011 is ordered.
08.A.Nos.5205 & 5206 of 2011 are dismissed.
No costs.
25.07.2012 Index;Yes.
Internet:Yes.
er R.S.RAMANATHAN.J er common order made in O.A.Nos.869 to 874 of 2011 and Application Nos.5205, 5206 to 5208 of 2011 25.07.2012