Bangalore District Court
Smt Mohini Bai vs H.Shanthilal Jain on 16 March, 2016
IN THE COURT OF THE XXXI ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH 14), BANGALORE CITY.
PRESENT:
Sri G.S.REVANKAR, B.Com., LL.B. (Spl.),
XXXI ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
DATED THIS THE 16th DAY OF MARCH 2016
O.S.No.6376/1993
PLAINTIFFS: 1] Smt Mohini Bai,
w/o late S.Hastimal Jain,
Aged about 64 years,
No.19/1, Kumara Krupa Road,
High Grounds,
Bangalore - 560 001.
since dead represented by
her Legal Representative
a] H.Babulal,
s/o late S.Hastimal Jain, 50 years,
R/at No.19/1,
Kumarakrupa Road,
High Grounds,
Bangalore - 560 001.
2] Smt Kanchan Devi,
w/o H.Babulal,
44 years,
R/at No.19/1,
Kumarakrupa Road,
High Grounds,
Bangalore - 560 001.
(By SRI ABHINAV R., ADVOCATE)
/VS/
2 O.S.NO.6376/1993
DEFENDANT: H.Shanthilal Jain,
s/o late Sri S.Hastimal Jain,
46 years,
R/at No.185, R.M.V. II Stage,
12th Main, 2nd Cross,
New BEL Road,
Bangalore - 560 054.
(BY SRI V.K.S., ADVOCATE)
Date of Institution of the 22.10.1993
suit
Nature of suit Declaration and Settlement
of accounts
Date of commencement of 25.02.2003
recording of evidence.
Date on which Judgment 16.03.2016
was pronounced
Total Duration. Years Months Days
22 04 24
JUDGMENT
The plaintiffs have filed this suit to declare that the firm M/s Shantilal Jaganlal and business of the partnership which is being carried out under the name and style of M/s National metal Pressing Corporation stands dissolved on the date to be fixed by this court. The plaintiffs have also filed this suit to declare that they are entitled 1/3rd share each in all the partnership assets and to render accounts of the partnership firm. 3 O.S.NO.6376/1993
2. The facts of the case of the plaintiff are as follows:-
The plaintiffs have contended that they were carrying on business in partnership under the name and style of M/s National Metal Pressing Corporation, proprietor Shanthilal Chaganlal with Smt Nirmala and Kantha who retired from the firm w.e.f. 01.07.1987. It is also contended that after their retirement, the plaintiffs agreed to admit the defendant as a partner of the firm and accordingly, they entered into a deed of partnership on 02.07.1987. The plaintiffs further contended that themselves and the defendant agreed to take over the assets and liability of the previous partnership which are attached to the business. It is also contended that they have agreed to carry on the partnership business under the name and style of M/s Shanthilal Chaganlal and the business of the partnership to be carried out under the name and style of M/s National Metal Pressing Corporation. The plaintiffs further contended said partnership business is that of manufacture and sale of ferrous and non-ferrous metals and alloys, etc., , 4 O.S.NO.6376/1993 manufacture of stainless steel and aluminium articles and alloys. The plaintiffs further contended that duration of the partnership was agreed to be at Will and the business of the partnership was commenced from 01.07.1987 and the capital of the partnership amount was standing to the credit of each partner and it was further agreed that said capital shall carry interest @ 10 % p.a. It is also contended that there was understanding between the parties the goodwill, quota rights, furniture, telephone and the other rights of the firm shall belongs to plaintiff No.1 only and the plaintiff No.2 and the defendant have no manner of right of any manner over them. The plaintiff further contended that the plaintiff No.1 is the mother of the defendant and the plaintiff No.2 is the sister in law of the defendant. The plaintiff further contended that having regard to the blood relationship and as the plaintiffs were landless, the defendant was entrusted with the responsibility of carrying on the partnership business. It is also contended that though partnership deed provided for operating of the bank account by all the partners, the plaintiffs have never operated the bank account. It is also 5 O.S.NO.6376/1993 contended that the firm has lent money to several debtors and all those loans were advanced by the defendant. The plaintiff has further contended that the partnership owned property bearing No.83/2 situated in industrial area, Yashwantpur and the said property was originally purchased by plaintiff No.1 under the sale deed dated 05.06.1962 in the name of the firm M/s Shanthilal Chaganlal from its previous owner M.Gopal. It is also contended that after the purchase, the present construction was put up and several portion of them have been leased out to the tenants and the said property is fetching good rents. The plaintiffs have further contended that they are not educated and they are housewives and they completely believed the defendant in carrying on with the partnership business. It is also contended that the defendant used to make their signatures to the cheque leaves of their personal account and withdraw the money from their personal account. The plaintiff has further contended that they are totally ignorant of the account amounts so credited to their personal account and amount withdrawn from their personal account. It is also 6 O.S.NO.6376/1993 contended that the defendant himself used to make available all the information to the Auditor both in respect of the accounts of the firm as well as the plaintiffs' personal account. The plaintiffs further contended that there was no necessity to incur debt, the defendant appears to have shown some borrowing and further he is showing payment of interest towards said borrowings so as to bring down the share of profit. The plaintiff has further contended that the defendant has taken their signature to the several papers without disclosing the contents and purpose for which they are so taken and the plaintiffs apprehend that they might have been misused by the defendant so as to create documents which are detrimental to the interest of the plaintiffs. The plaintiffs further contended that the defendant has kept them completely in darkness about the extent of business carried on. The plaintiffs further contended that they found the defendant guilty of acts and conduct detrimental to the interest of the partnership and injurious to them and he has failed and neglected to perform his duty and as such, they wrote a letter dated 11.02.1991 to the Manager, Grindlays Bank, 7 O.S.NO.6376/1993 Mission Road, Bangalore, requesting to stop the bank account. The plaintiffs further contended that apartfrom the bank account in Grindlays bank, the defendant has opened one more account without their knowledge and consent in the name of Shanthilal Chaganlal in the State Bank of Saurashtra and the defendant never informed them about opening of the said account. The plaintiff has further contended that now, they have learnt that partnership fund has been diverted through that account.
The plaintiffs further contended that as the partnership is at will, there is no impediment in the law for dissolution of the firm. The plaintiffs have further contended that after the demise of plaintiff No.1, all the rights and share of the deceased plaintiff No.1 in the partnership firm has been bequeathed by the plaintiff No.1 under a registered Will and Testament dated 05.12.1992 in favour of her son H.Babu Lal, plaintiff No.1[a]. The plaintiff has further contended that in view of the registered Will, the plaintiff No.1[a] enters into the shoes of deceased plaintiff No.1, thereby representing the right, share and interest of plaintiff No.1 in the partnership firm M/s National Metal 8 O.S.NO.6376/1993 Pressing Corporation. On these grounds, the plaintiffs have filed this suit.
3. The defendant has filed written statement admitting that he was inducted as partner in M/s Shanthilal Chaganlal which is carrying on business under the name and style of M/s National Metal Pressing Corporation. The defendant has contended that the plaintiffs are not partners of the firm and as such, they have no locus standi to file the suit and they are retired from the partnership firm. The defendant has further contended that there was no agreement between the partners that the money standing in their respective capital account carries interest @ 10 % p.a.. The defendant has contended that the plaintiffs have filed a false and frivolous suit knowing fully well that the partnership firm howay exists and released deed executed by the plaintiff Smt Mohini Bai and Kanchana Devi and both of them are retired from the partnership firm. The defendant has denied that the property No.83/2 situated in Industrial Area, Yashwanthpura, was originally purchased by plaintiff 9 O.S.NO.6376/1993 No.1. The defendant has contended that said property was purchased by the firm and the plaintiff who was a partner of the said firm represented the firm as purchaser of the property. The rents which are being received from the said premises have been duly counted until the plaintiffs retire from the firm. The defendant has contended that the plaintiffs are well versed with the business affairs and they had full access to books of accounts, cheque books, passbooks pertaining to the affairs of the firm. The defendant further contended that even today, because of immaturity of the plaintiffs, Grindlays Bank is enjoying the benefits of the deposits lying with them and the firm is losing interest on the said deposits. The defendant has further contended that as the plaintiffs are retired from the partnership firm, the question of dissolving the firm does not arise. The defendant has further contended that he has a doubt whether the signatures in the plaint and vakalath are that of the plaintiffs, because his own brother Babu Lal is expert in forging the signature of other family members and with the assistance of such signatures do many misdeeds. The defendant has further contended that 10 O.S.NO.6376/1993 after the death of the father late Sri Hastimal, in respect of immovable property, on which all the family members have equal rights as father has not left Will, the said Babu Lal forged and fabricated the document totally concealing the fact that Shanthlal is also son of deceased Hastimal and got the sale deed of the immovable property in his name and similarly got transferred khata in his personal name. The defendant has denied rest of the plaint allegations and prayed for dismissal of the suit.
4. Based on the above pleadings, the following issues and additional issues are framed -
1) Whether the plaintiffs prove that they are partners of M/s Shantilal Chaganlal and the said partnership firm is carrying on business in name and style 'National Metal Pressing Corporation'?
2) Whether the plaintiffs prove that defendant has committed breach of agreement relating to the management and affairs of the firm?
3) Whether the plaintiffs are entitled for all the suit reliefs?
4) What decree or order?11 O.S.NO.6376/1993
Addl. Issues
1) Whether the defendant proves that plaintiffs retired from partnership firm on 30.09.1992?
2) Whether defendant proves that the accounts of partnership firm is settled?
Recast Addl. Issue:
Whether the plaintiff No.1[a] proves that he is entitled to all the rights and share of the deceased plaintiff No.1 in the partnership firm M/s National Metal Pressing Corporation by virtue of the registered Will and Testament dated
05.12.1992 executed in his favour by plaintiff No.1?
Addl. Issue framed on 30.08.2011 Whether the plaintiff No.1[a] proves that they are jointly entitled to 2/3rd share in the suit schedule properties?
5. In support of the case of the plaintiffs, the plaintiff No.1[a] is examined as P.W.1 and one witness is examined as P.W.2 and got marked eight documents as Ex.P1 to Ex.P8 and closed their side. In support of the case of the defendant, the defendant himself examined as D.W.1 and 12 O.S.NO.6376/1993 got marked eleven documents as Ex.D1 to D11 and closed his side.
6. Heard the arguments.
7. My findings on the above issues are as follows:-
Issue No.1: Negative, Issue No.2: Negative, Issue No.3: As per final order, Issue No.4: As per final order, Addl. Issues Issue No.1: Affirmative, Issue No.2: Affirmative, Recast Addl. Issue: Negative Addl. Issue framed on 30.08.2011 - Negative, for the following, REASONS
8. Issue No.1, 2, Addl. Issues No.1 and 2, Recast Addl. Issue and Addl. Issue framed on 30.08.2011: The plaintiffs have filed this suit for declaration that the firm M/s Shanthilal Chaganlal and business of the partnership 13 O.S.NO.6376/1993 which being carried on under the name and style of M/s National Metal Pressing Corporation stands dissolved and also to declare that the plaintiffs are entitled 1/3rd share each in all partnership assets and also for settlement of accounts. The plaintiffs have contended that they were carrying on business of partnership under the name and style of M/s National Metal Pressing Corporation with Smt Nirmala and Kantha who retired from the firm w.e.f. 01.07.1987 and after their retirement, the plaintiffs have agreed to admit the defendant as a partner as per the deed of partnership on 02.07.1987. It is further contended that the plaintiff and defendant agreed to take over the assets and liability of the previous partnership and also agreed to carry on the partnership business under the name and style of M/s Shanthilal Chaganlal and business of the partnership to be carried on under the name and style of M/s National Metal Pressing Corporation. The plaintiffs further contended that dissolution of the partnership was agreed to be at Will. The plaintiffs have further contended that the goodwill, quota rights, furniture, telephone and other rights of the firm shall belong to plaintiff No.1 only 14 O.S.NO.6376/1993 and the plaintiff No.2 and the defendant have no manner of right over the said assets. The plaintiffs have further contended that they being ladies, trusted the defendant and they never operated bank account and the property bearing No.83/2 was purchased by plaintiff No.1 under the sale deed dated 05.06.1962 in the name of the firm M/s Shanthilal Chaganlal from its previous owner Sri M.Gopal. The plaintiffs have also contended that the defendant used to draw cheques towards payment of the share of profit from the firm and credit the said cheques into their respective personal accounts and the defendant used to take their signatures to the cheque leaves and withdraw money from their personal account. The plaintiffs have also contended that taking advantage of the relationship, the defendant has taken their signatures on several papers without disclosing the contents and purpose for which they are so taken and the defendant might have misused so as to create documents which are detrimental to their interest. The plaintiffs have also contended that the defendant has failed and neglected to perform his duty and used the property and money of the firm for no purpose 15 O.S.NO.6376/1993 and the defendant has opened one more account in the name of Shanthilal Chaganlal in State Bank of Saurashtra and diverted the funds through that account. The plaintiffs have also contended that after the death of plaintiff No.1, all the rights and share of the deceased plaintiff No.1 in the partnership firm has been bequeathed under a registered Will and Testament dated 05.12.1992 in favour of plaintiff No.1[a]. The defendant has filed his written statement and denied the claim of the plaintiff and contended that the plaintiff No.1 has subsequently executed another Will and as such, the Will executed on 05.12.1992 has no legal value and the plaintiff cannot seek any relief as they retired from the partnership firm by executing release deed dated 01.10.1992.
9. The plaintiff No.1[a] is examined as P.W.1 and one witness is examined as P.W.2 and during their evidence, in all eight documents are marked as Ex.P1 to P8. The relationship between the parties is not in dispute. P.W.1 in his chief examination reiterated the plaint averments and stated that the defendant has taken undue advantage of 16 O.S.NO.6376/1993 the relationship and has taken signatures of the plaintiffs on several blank papers/documents, stamp papers and letterheads without disclosing the contents and the purpose for which they were taken. But, in the cross examination, he has stated that they have not lodged any police complaint with regard to the signatures being obtained on blank papers. According to plaintiffs, plaintiff No.1 has executed Will dated 05.12.1992 i.e. Ex.P6 which fact has been seriously disputed by the defendant. The plaintiff has examined P.W.2, namely Dr.Narendranath, in support of the said Will. Said witness is not an attesting witness to the Will deed, but his father is a signatory to the said Will. P.W.2 in his evidence stated that his father and Sri S.Hastimal Jain were family friends and he is aware that Smt Mohini Bai w/o late Sri Hastimal Jain has executed her last Will and testament dated 05.12.1992. P.W.2 has further stated that Smt Mohini Bai requested his father to sign her last Will as an attesting witness. P.W.2 has further stated that his father was present when the Will was executed by Smt Mohini Bai and it was informed by his father that Smt Mohini Bai executed and signed the 17 O.S.NO.6376/1993 Will in the presence of attesting witnesses i.e. his father and one Sri Sudhakar and in turn, the attesting witnesses signed in the present of each other and in the present of Smt Mohini Bai. P.W.2 has also stated that his father has passed away on 08.10.2001. On perusal of the chief examination of P.W.2, it can be gathered that he has tendered evidence as per the information given by his father pertaining to the Will. P.W.2 in the cross examination stated that he never visited the house of Sri Hastimal Jain i.e. husband of plaintiff No.1 and he met plaintiff No.1 about six years ago. Though P.W.2 met Smt Mohini Bai i.e. plaintiff No.1, his evidence is totally silent about the information pertaining to the Will through Smt Mohini Bai. As I mentioned above, according to P.W.2, he gathered the information about execution of the Will through his father, but in the cross examination he has stated that recently he came to know that his father Mariyappa attested one document which is connected to the suit transaction. Said admission of P.W.2 goes to show that his father has not disclosed any information to him pertaining to the Will executed by Smt Mohini Bai. 18 O.S.NO.6376/1993
10. As I mentioned above, according to the defendant, the plaintiffs have retired from the partnership firm by executing release deed on 01.10.1992 and as such, the plaintiffs are not entitled for any reliefs. D.W.1 in his evidence stated that the plaintiffs have filed a false and frivolous suit knowing that the partnership firm no more exists as the release deed is executed by Smt Mohini Bai and Kanchana Devi and both of them retired from the partnership firm. D.W.1 further stated that after the retirement, the plaintiffs have no right over the assets of the firm and after execution of the release deed, the same has been submitted to the income tax authorities and plaintiffs are aware of the same. D.W.1 has further stated that after retirement of the plaintiffs, he entered into a partnership along with his wife and son. D.W.1 has also stated that in pursuant to the retirement, the share of profit amounting to Rs.5045.35 from the said firm has been shown by the plaintiffs in their income tax records submitted before income tax authorities. During the cross examination of P.W.1, the release deed was confronted and got marked as Ex.D1. It is true that P.W.1 stated that he 19 O.S.NO.6376/1993 is not agreeable that his wife and his mother executed the said release deed and also he has voluntarily stated that on blank papers, signatures were secured. In case the defendant had obtained signatures of the plaintiffs on blank papers, certainly they would have taken legal action against the defendant. As I observed above, P.W.1 in the cross examination stated that they have not lodged any police complaint with regard to the signatures were being obtained on blank papers vide Ex.D1. P.W.1, in the cross examination, clearly admitted that Ex.D1 bears signatures of his wife and his mother. So, the initial presumption goes in favour of the defendant. As I mentioned above, the specific defence of the defendant is that the plaintiffs have executed the release deed dated 01.10.1992. In support of the said contention, during the cross examination of P.W.1, the letter issued by the plaintiffs to the Manager, Standard Chartered Grindlays Bank, M.G. Road, Bangalore, has been marked as Ex.D2 by way of confrontation. P.W.1, in the cross examination, admits that his brother Shanthilal, his mother Smt Mohini Bai and his wife Smt Kanchana Devi have given a letter to the bank to continue the 20 O.S.NO.6376/1993 account which were stopped earlier. On perusal of Ex.D2, letter of the plaintiffs dated 09.06.2001, subsequent to the release deed. On perusal of Ex.D2, it discloses that the matter was amicably settled and the plaintiffs have requested to the bank to resume operation of their current account. It is true that the plaintiffs have disputed Ex.D1, but the recitals of Ex.D2 supports the contention taken by the defendant about the release deed executed by the plaintiffs. The defendant has produced the deed of revocation which has been marked as Ex.D10. The said deed has been executed by plaintiff No.1 i.e. Smt Mohini Bai, canceling the power of attorney in favour of the P.W.1. The advocate for the defendant vehemently argued that though the plaintiff No.1 cancelled the general power of attorney, P.W.1 appeared before the court on her behalf to prosecute the case which is contrary to law. On perusal of the recitals of Ex.D10, it can be seen that plaintiff No.1 admits the release deed executed by her and retirement from the partnership firm. As the plaintiffs have retired from the partnership firm, question of asking share does not arise. With these observations, I answer issue No.1 21 O.S.NO.6376/1993 and 2 in the negative, Addl. Issue No.1 and 2 in the affirmative, recast Addl. Issue in the negative and Addl. Issue dated 30.08.2011 in the negative.
11. Issue No.3 and 4: In view of the reasons stated above, I proceed to pass the following:
ORDER The suit is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him over computer, corrected, signed and then pronounced by me in the open court on this the 16th Day of March 2016) (G.S.REVANKAR) XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE Annexure List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri Documents marked on behalf of the plaintiff/s:
Ex.P1 : Partnership deed
Ex.P2 : General power of attorney dated 25.9.93
Ex.P3 : General power of attorney dated 14.7.97
Ex.P4 : Certified copy of sale deed dated 5.6.62
Ex.P5 : Death certificate of Smt Mohini Bai
Ex.P5a : English translation
22 O.S.NO.6376/1993
Ex.P6 : Will dated 5.12.92
Ex.P6a : Signatures
Ex.P6b : Signature of Mariyappa
Ex.P7 : Death certificate of Mr.Venkatachala
[Mariyappa]
Ex.P8 : General power of attorney dated 8.11.91
Ex.P8a : Signature of Mariyappa
List of witnesses examined on behalf of the Defendant/s:
D.W.1 : Sri Shanthilal Documents marked on behalf of the Defendant/s: NIL Ex.D1 : Release deed dated 01.10.1992 D1[a]-[f] : Signatures Ex.D2 : Letter D2[a]-[c] : Signatures of Shanthilal, Smt Mohini Bai and Smt Kanchana Devi Ex.D3 : Form No.16 Ex.D4 : Copy of statement with regard to profit and loss including balance sheet for the year 1989-90 Ex.D5 : Copy of statement with regard to profit and loss including balance sheet for the year 1990-91 Ex.D6 : Copy of statement with regard to profit and loss including balance sheet for the year 1991-92 Ex.D7 : Copy of statement with regard to profit and loss including balance sheet for the year 1992-93 Ex.D8 : T.D.S. Certificate Ex.D9 : Certified copy of the order in PCR.No.1136/2009 Ex.D10 : Deed of revocation Ex.D11 : Forensic examination report dt.06.08.2012 (G.S.REVANKAR) XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE 23 O.S.NO.6376/1993 Case called out.
Judgment pronounced in open court (vide separate order) The suit is dismissed with costs.
Draw decree accordingly.
XXXI ACCJ:Bangalore.