Delhi District Court
Smt. Nisha Verma vs Sh. Sakaldeep Verma on 23 August, 2023
Date: 23.08..2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT01003217202
CS No. 255/21
In the matter of :-
Smt. Nisha Verma
D/o Sh. Rajnath Verma
W/o Sh. Rakesh Kumar Verma
R/o Village-Jafaramau,
Post-Kakarahi Badhanpur,
Azamgarh, Uttar Pradesh-276142 ...... Plaintiff
Versus
Sh. Sakaldeep Verma
S/o Sh. Kanhiya Verma
F-194, Sector-3,
Bhawna Industrial Area,
Delhi-110039 ........Defendant
Date of Institution 17.04.2021
Date of Final Argument 22.08.2023
Date of pronouncement of 23.08.2023
judgment
SUIT FOR DISSOLUTION OF PARTNERSHIP DEED, RENDITION
OF ACCOUNTS, PERMANENT AND MANDATORY INJUNCTION
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 1 of 11
Date: 23.08..2023
EX-PARTE JUDGMENT
1.The present suit is for dissolution of partnership deed, rendition of accounts and for permanent and for mandatory injunction.
2. The brief facts of the case as stated by the plaintiff in the plaint are as under:-
i. It is stated that on 05.06.2017, the defendant and the husband of the plaintiff (Sh. Rakesh Kumar Verma) entered into a partnership with each other and on 12.07.2017, a Deed of Partnership was executed between them. It is stated that the partnership business was agreed to be carried on under the name and style of M/s Precision Engineering Works. It is stated that the place of business of partnership is at Plot No. 158, Pocket-D, Sector-3, Bawana, Delhi-110039, currently operated from F-194, Sector-3, Bawana Industrial Area, Delhi-110039. It is stated that at the time of agreement, the mode of business of the partnership was to carry the Job Work of Repair and Spares of Heidelberg Offset Printing Machine or Fabrication Auxillary Job Work etc. ii. It is stated that the husband of the plaintiff and the defendant agreed to share the profit/ loss and investment of the business at 50%-50% basis.
iii. It is stated that on 08.03.2018, the original partnership deed was amended and point no. 5 of the original partnership was modified.
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 2 of 11 Date: 23.08..2023 iv. It is stated that on 16.07.2018, the plaintiff became the new partner in M/s Precision Engineering Works after the retiring of her husband Sh. Rakesh Kumar Verma. It is stated that the retired partner Sh. Rakesh Kumar Verma had agreed to transfer all assets to joining partner i.e. plaintiff with all the rights including sharing profit/ loss ratio.
v. It is stated that the partner of the M/s Precision Engineering Works obtained a GSTIN No. 07AAUF8603J1ZN and it was agreed that only GST invoices would be generated to the client/ customer and GST return would be paid and thereafter, the profit would be shared.
vi. It is stated that in accordance to the terms of the Partnership Deed executed between the parties, the defendant was bound to main the records of accounts properly and all the records were have to be opened for access for the purpose of inspection by the other partner.
vii. It is stated that after the admission of the plaintiff, as the partner, the defendant started concealing the business from the plaintiff and started avoiding the plaintiff and started undertaking the business in cash.
viii. It is stated that the defendant stopped making entries in the book of accounts and started dealing with the client and customer orally and many of times, no formal GST invoices were generated by the defendant and he used to keep all the money CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 3 of 11 Date: 23.08..2023 with himself. It is stated that the defendant, even stopped preparing balance sheet of the profit and loss and further stopped distributing the profit to the plaintiff.
ix. It is stated that plaintiff expressed her will to inspect the books of accounts of the firm but the defendant always used to linger the inspection on one or the other pretext and never shown any account and statement of the firm to the plaintiff and lastly refused to show any accounts to the plaintiff.
x. It is stated that the defendant further stopped paying the GST dues to the concerned authority and even stopped generating bill to the client/ customer. The sole intention behind it was that if, the defendant would pay the GST, then, the plaintiff would easily come into the knowledge of accounts of the firm.
xi. It is stated that the defendant never shared any profit with the plaintiff and on the other hand, the defendant in dealing with the clients in lakhs of rupees and is also earning lakhs of rupees from the firm. It is stated that the said profit has to be distributed on 50:50 ration between the plaintiff and the defendant, however, the defendant is defrauding and cheating the plaintiff.
xii. It is stated that defendant started misappropriation of profit generated from the aforesaid firm and started depositing the same in bank account of his wife and brother, so that the plaintiff could not get her share of profit from the aforesaid firm.
xiii.It is stated that the defendant made it necessary for the plaintiff CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 4 of 11 Date: 23.08..2023 to dissolve the Partnership Deed as the defendant is engaged in illegal act and is further not sharing any profit with the plaintiff. It is stated that the exact amount of business is not known to the plaintiff and further the total profit gained is also not known to the plaintiff and it could only be ascertain when the defendant would furnish the complete book/ record of the account to the plaintiff including the bank details, bank account statements, GST returns and the bill books.
xiv. It is stated that the defendant is not paying the GST and other government taxes and the plaintiff has each and every apprehension that there would be a huge GST arrears on the firm, and in such case, any legal action may be taken by the concerned authority against the plaintiff and the defendant, as they are the partner of the firm and in such case, the innocent plaintiff would be roped in the criminal or civil action without any fault or default.
xv. It is stated that the on 13.03.2021, the plaintiff submitted a written complaint to the Principal Chief Commissioner of GST.
xvi.A legal notice dated 3012.2020 was sent to the defendant thereby calling him to supply the details of the account and balance sheet of the firm to the plaintiff, to share the profit of the firm on 50:50 ratio and to generate GST bill and further to pay the outstanding GST dues, however, the defendant failed to reply to the said legal notice.
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 5 of 11 Date: 23.08..2023 xvii. It is stated that plaintiff alongwith her husband visited the place of business but the defendant was not present. Thereafter, the husband of the plaintiff called the defendant and asked him to provide them records of the account for the purpose of inspection and to share the date date profit on 50:50 ratio and to do business strictly as accordance with the Partnership Deed, but the defendant clearly refused to show any record to the plaintiff and also threatened the plaintiff. Thereafter, the plaintiff given a complaint to the SHO PS Bawana against the defendant thereby requesting the SHO PS Bawana to take legal action against the defendant.
3. The prayer made by plaintiff is herein as under:-
i. to pass a decree for dissolution of the Partnership Deed and the partnership business.
ii. to direct the defendant to furnish the entire book of accounts including GST returns, bank (s) account statement, bill book etc. to the plaintiff and to share the profit and the assets of the firm in 50:50 ratio.
Or to appoint a receiver to make visit to the place of business and to take stocks of entire record of the partnership business, and to finalize the account.
iii. to direct the defendant to pay the GST arrears, if any, to the concerned authorities without any delay.
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 6 of 11 Date: 23.08..2023 iv. to restrain the defendant to carry out business of the M/s Precision Engineering Works.
4. Since none appeared for and on behalf of the defendant, the defendant was proceeded ex-parte vide order dated 20.09.2022.
5. In order to prove its case, the plaintiff has examined following two witnesses:
A. PW-1 is Smt. Nisha Verma. She has tendered her affidavit in evidence Ex. PW 1/A, same bears her signature at point A and B. She relied upon the following documents:
1. Partnership Deed dated 12.09.2017 with visiting card of the firm is Ex. PW1/1 (OSR)
2. Amended Deed dated 08.03.2018 is Mark B.
3. Amended Partnership Deed dated 16.07.2018 is Ex. PW1/3.
4. Complaint dated 12.03.2021 is Ex. PW1/4.
5. Legal notice dated 30.012.2020 alongwith Speed Post Receipt and the Internet tracking report are Mark C.
6. Copy of the complaint to SHO Bawana is Mark D.
7. Print out of GST number in the name of defendant wife having address of the firm is marked as Mark A. B. PW-2 is Sh. Rakesh Kumar Verma. He has tendered his evidence by way of affidavit Ex. PW2/A which bears his signature at point A and B. he also relied upon the following documents:
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 7 of 11 Date: 23.08..2023
1. The list of machines and tool with invoice number, date, seller name, price, GSTIN/ PAN Number Ex. PW2/1 is Mark D.
2. A list of the work undertaken by firm in the year 2019-20 with date, invoice no. party name, GSTIN Number and amount are Mark E.
3. Copy of the electricity bill of the work place of firm for the month of May and September 2022 is Mark A.
4. The list of notices/ demand order issued by the GST Department downloaded from the website of GST Department is Mark F.
5. GST number issued in the name of wife of the defendant alongwith with full profile is Mark G.
6. Copy of bank statement from 07.09.2018 to 04.02.2020 is Mark B. (Colly.)
7. Copy of the bank statement of defendant from 31.08.2020 to
06.04.2021 is Mark C.
6. Heard Ld. Counsel for plaintiff and perused the complete record file.
7. The case of the plaintiff is that earlier the husband was a partner with the defendant in the firm namely, M/s Precision Engineering Works (hereinafter referred to as "firm"). The husband of the plaintiff retired from the said partnership firm and in his place, the plaintiff was inducted as a partner on the same terms and conditions as it was agreed between the husband of the plaintiff and the defendant. The plaintiff has stated that ever since the plaintiff was inducted as a CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 8 of 11 Date: 23.08..2023 partner in the said firm, the defendant had stopped making entry in the books of accounts and had started dealing with the client and customer orally. In fact, no formal GST invoices were generated by the defendant and he use to keep all the money with himself. The defendant has also stopped preparing the balance sheet of profit and loss and further stopped distributing the profit to the plaintiff. Accordingly, the plaintiff has instituted the present suit for seeking dissolution of partnership and rendition of the account.
8. The plaintiff is entitled to a decree of dissolution of partnership firm from date of service of summons in the present suit which is 05.04.2022 in view of the Judgment of Supreme Court of India "Banarasi Das Vs. Kanshi Ram" (AIR 1963 SC 1165) wherein it was held that "the term "notice" in Section 43(2) is wide enough to include within it a plaint filed in a suit for dissolution of partnership. But in such a case the partnership would be deemed to be dissolved when the summons accompanied by a copy of the plaint is served on the defendant, where there is only one defendant, and on all defendants, when there are several defendants. Since a partnership will be deemed to be dissolved only from a particular date, it is further clarified that the date of dissolution would have to be the date on which the last summons was served."
9. In the considered opinion of this Court, the plaintiff being equal partner of 50 % share is entitled to have the access to account book and rendition of accounts. The plaintiff has on a balance of probabilities discharged her burden to prove that she is a partner in CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 9 of 11 Date: 23.08..2023 the said firm. For this purpose, she has proved Ex.PW1/3. The rights and liabilities are clearly defined between the parties in Ex.PW1/3 and Ex.PW1/1. Even Section 13 of the Indian Partnership Act 1932, talks about the mutual rights and liabilities of the partners subject to a contract between them. On conjoint reading of Ex.PW1/1 and Ex.PW1/3, the rights and liabilities between the plaintiff and the defendant are akin to the provisions of the Section 13 of Indian Contract Act, 1932. Accordingly, the plaintiff is entitled for rendition of account in her favour. However, as per the Section 7 (iv)(f) of Court Fees Act, 1870, the plaintiff is liable to pay a court fee upon the amount at which relief is sought to be valued in the plaint. In the present plaint, the plaintiff has valued the relief for rendition of accounts for an amount of Rs. 20 lacs. Despite, valuing the relief of rendition of account to the tune of Rs. 20 lacs, no court fees has been paid by the plaintiff.
10. Similarly, for the relief of injunction for seeking restraint order against the defendant for use of the name of the partnership firm, the plaintiff has not valued the same in his plaint and has not paid the court fees upon the same in terms of Section 7 (iv)(d) of the Court Fees Act, 1870. As per Section 53 of the Indian Partnership Act 1932, after dissolution of firm, any partner can restraint another partner from using the name of the firm in a similar business. Since the firm of the parnter already stood dissolved on 05.04.2022, there is no embargo upon the plaintiff to seek injunction against the defendant. However, the same is subject to payment of court fees.
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 10 of 11 Date: 23.08..2023
11. In view of the aforesaid discussion, the plaintiff is entitled to following relief:
a) a decree of dissolution of partnership from 05.04.2022.
b) a preliminary decree in his favour and against the defendant to furnish book of accounts including GST return, bank account statements, bill book etc., for ascertainment of share of profit and loss of the firm in a ratio of 50:50 upon payment of the deficit court fees.
c) a decree for injunction of defendant to carry out business in the name of M/s. Precision Engineering Works, subject to payment of the Court fee after calculation of the good will.
Let a preliminary decree sheet be prepared.
12. Be put up for rendition of accounts on 06.09.2023.
Digitally signed
SHIVALI by SHIVALI
BANSAL
Announced in open BANSAL Date: 2023.08.23
16:11:25 +0530
Court on 23.08.2023 Shivali Bansal
Additional District Judge-03
North District, Rohini Courts, Delhi
CS No. 255/21 Nisha Verma Vs. Sakaldeep Verma Page No 11 of 11