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RAVINDRA KOHLI versus REGISTRAR FIRM SOCIETIES EVAM CHITS & OTHERS

High Court of Judicature at Allahabad

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Ravindra Kohli v. Registrar Firm Societies Evam Chits & Others - WRIT - C No. 28 of 2005 [2006] RD-AH 5439 (7 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ petition No.28 of 2005

Ravindra Nath Kohli

Versus

Registrar, Firms, Societies and Chits,

U.P. at Lucknow & others

Hon'ble V.K. Shukla, J.

Petitioner Ravindra Kohli has approached this Court questioning the validity of order dated 25.05.2004 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur, rejecting the application moved on behalf of petitioner and contending that no further action is required at the level of the Deputy Registrar, Firms, Societies and Chits, Kanpur, and there appears to be dispute with firm in question, for which proceedings under Arbitration Act can be undertaken.

Brief facts, as mentioned in writ petition, are that there has been a partnership firm known as M/S Kohli Construction Company bearing registration No.90504 under the partnership of Harish Chandra Kohli, Smt. Pushpawati Kohli and Shri Deshraj. Deshraj, one of the partners, died on 04.11.1986. Petitioner has contended that in terms of Section 42 (c) of the Partnership Act, 1932, the firm in question stood dissolved, and thereafter on 07.11.1986, the firm in question was reconstituted with the same name, and address and partners' names were Harish Chandra Kohli, Smt. Pushpawati Kohli and Ravindra Kohli, and the same was presented for registration, and registration No. K-2426 was allotted on 17.02.1987 and certificate was issued on 02.03.1987. It has also been contended that on 13.03.1987 agreement was written of the reconstituted partnership firm M/s Kohil Construction company taking over the liabilities and assets of the old partnership firm and clause 14A was added as part of the deed and was made effective from 07.11.1986. It has also been asserted that on 13.03.1987 indemnity bond was executed by all partners of the newly reconstituted firm stating therein that on account of death of one partner, the firm stood dissolved automatically and the firm has been reconstituted and in place of deceased partner Mr. Ravindra Kohli has been admitted in partnership. Petitioner has contended that Smt. Pushpawati Kohli died on 01.06.2002. Petitioner filed suit for declaration on 23.07.2002 for declaring that Smt. Pushpawati has executed will in his favour, as such he be declared owner of the house in question, namely 111A/89, Kanpur Nagar and  be declared partner to the extent of 60% in M/S Kohli construction Company. After the said suit had been field on 05.08.2002, Harish Chandra, the father of the petitioner moved an application for issuing form No. 7 for changing the vidhan of the old firm registration No.90504. On the same day another application was also moved for issuing form No.8 on the pretext that Smt. Pushpawati on 07.05.2002 took retirement . Thereafter, based on the said application order dated 14.08.2002 for issuing Form Nos. 7 and 8 was passed. Petitioner has contended that after acquiring knowledge of the same  on 30.01.2003 an application was moved for holding an enquiry and canceling the Form Nos. 7 and 8. along with the said application each and every document had been filed. Thereafter no action was taken on the same. Petitioner has stated that he sent reminders in this respect. As no action was being taken, then  Registrar, Firms, Societies and Chits issued show cause notice to produce documents. During pendency of enquiry proceeding  pursuant to show cause notice dated 25.05.2004 order was passed on 28.05.2004 rejecting the application. Petitioner has contended that undue advantage and benefit are being derived by the order which has been passed by the Deputy Registrar, Firms, Societies and Chits in the proceedings which are going on before the civil court and plea is being taken that the claim of petitioner is totally barred by Order 30 Rule 1 C.P.C. and Section 69 of the Partnership Act. Petitioner has contended that he has moved an application for cancellation of order dated 28.05.2004, especially when the respondent No. 1 has already undertaken proceeding. It has been contended by the petitioner that he has submitted reply to the letter dated 25.05.2004 and thereafter notice has been sent on 31.07.2004 to the parties for their appearance on 30.08.2004. On  31.08.2004 statement of petitioner has been recorded and thereafter 01.10.2004 was the date fixed asking the respondent No. 3 to submit his evidence. Petitioner has contended that said proceedings are not being finalized, as such present writ petition has been filed.

Counter affidavit has been filed, and therein, it has been contended that two firms are separate and have got independent identity having two separate registration numbers, and as the petitioner has not been partner in firm having registration No.90504, as such he has no right to interfere or inter middle with it. Plea has also been taken that proceedings are barred by the provisions of Section 69 of the Partnership Act read with the provisions of Order 30 Rule (1) and (2) C.P.C. It has also been contended that petitioner has not been honest to his family members and WILL which has been set up is nothing but an out come of manipulation and manoeuvring. Reference has also been given of the order passed by civil court to establish that claim of petitioner is unsustainable, and in this background, it has been contended that no relief can be accorded to the petitioner.

Rejoinder affidavit has been filed  to the counter affidavit filed on behalf of    Harish Chandra Kohli, and therein the statement of fact mentioned in the counter affidavit has been disputed and that of writ petition has been reiterated. Entire proceedings have been termed to be exparte, and in this background, it has been contended that writ petition is liable to be allowed.

After pleadings aforesaid inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri K.K. Tripathi, learned counsel appearing for petitioner has contended with vehemence that Firm M/S Kohli Construction Company after death of Deshraj, one of its partners, was reconstituted  on 07.11.1986, and after the death of another partner Smt. Pushpawati Kohli on 01.06.2002  Harish Chandra Kohli in order to defeat the right of petitioner has manipulated the proceeding  in the present case, and as manipulation is apparent, the entire proceedings are exparte, as such writ petition is liable to be allowed.

Sri Harish Chandra Kohli has appeared  in person and contended that at no point of time firm M/S Kohli Construction Company having registration No. 90504 was ever dissolved . Both the firms in the name of  M/S Kohli Construction Company are having different identity, and as the petitioner is not partner in the said firm with registration No. 90504, as such present writ petition is not maintainable, as the petitioner has got no cause of action to maintain the writ petition. Consequently, writ petition is liable to be dismissed.

After respective arguments have been advanced, the position which emerges is to the effect that there has been partnership firm in the name and style of M/S Kohli Construction Company with three partners, viz. Harish Chandra Kohli, Smt. Pushpawati Kohli and Deshraj. One of the partners, Deshraj, died on 04.11.1986. Thereafter as per petitioner, on 07.11.1986, the firm was reconstituted  and one fresh partner Ravindra Kohli (petitioner) was admitted and liability of of erstwhile firm was also taken vide agreement  dated 13.03.1987. Harish Chandra Kohli, on the other hand,  asserts continuance of erstwhile firm. Smt. Pushpawati died on 01.06.2002, and immediately after her death suit was filed for declaration  by Ravindra Kohli . Harish Chandra Kohli, the father of the petitioner moved an application for issuing form Nos. 7 and 8 qua firm M/S Kohli Construction Company with Registration No. 90504. It is true that under the Partnership Act, 1932, no  time period has been provided for moving application for issuance of form Nos. 7 and 8, but certainly if subsequent events have happened in between then they have to be adverted to, and these circumstances would differ from case to case. When there was unusual delay, then enquiries ought to have been made, as to whether proceedings were bona fide or same were motivated one. No reason whatsoever, has been indicated by Harish Chandra Kohli as to why so much time was consumed by him in moving application for issuance of Forms 7 and 8. Specific contention of petitioner had been that firm with registration No.90504 stood dissolved and new firm was reconstituted. Agreements dated 07.11.1986 and 13.03.1987, execution of which has not been disputed by the parties, ought to have been adverted to, for prima facie ascertainment of the fact as to whether the facts set out by petitioner had some semblance of truthfulness or not. Without looking into the contents of agreements dated 07.11.1986 and 13.03.1987, conclusions have been arrived at that same is not reconstruction of firm. All these aspects of the matter ought to have been adverted to by the Deputy Registrar, Firms, Societies and Chits. The way and manner in which the claim of petitioner has been ignored itself shows that proceedings have not been conducted  in fee, fair and transparent manner. The issues which were sought to be raised by the petitioner  went to the root of the matter as nobody can get any advantage or benefit of the exparte proceedings or exparte orders. Once the petitioner had raised issues which went to the root of the matter, then the same ought to have been adverted to and dealt with. The Deputy Registrar, Firms, Societies and Chits, in the facts of the present case, has not at all applied its mind to the materials available on record to the issues raised.  As the decision in the present case is exparte and has been taken without hearing the petitioner and decision making process is faulty and the rights of the petitioner are sought to be affected by the impugned order on account of  mentioning that proceedings are in accordance with law. Consequently, said order is unsustainable.

At last in the impugned order mention has been made that there appears to be dispute between petitioner and the firm, which can be resolved in proceedings under Arbitration Act. It is true that in paragraph No. 15 of agreement dated 07.11.1986, there is specific provision that in case of any dispute or misunderstanding arising amongst the partners on any matter whatsoever, respective affairs of this firm or the interpretation of any clause of this deed, it shall always be resolved by arbitration under Indian Arbitration Act. The said provision would not preclude the petitioner to question the validity of action taken by Deputy Registrar, wherein precise plea of petitioner had been that fraud and misrepresentation has been practiced while procuring  Form Nos. 7 and 8 and record in the office of Deputy Registrar be set straight. Validity of the order passed by Statutory Authority  can always be questioned, irrespective of aforementioned clause.

Consequently, writ petition succeeds and is allowed.  The order dated  28.05.2004 is hereby quashed and set aside. The matter is remitted back to the Deputy Registrar, Firms, Societies and Chits, Kanpur for being decided afresh in accordance with law after affording opportunity of hearing to the parties concerned, within two months from the date of receipt of a certified copy of this order.

07.03.2006

SRY.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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