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M/S Gupta Oil Store,Ladwa through its pa v. M/S Hindustan Petroleum Corporation Ltd. - RSA-3522-2001  RD-P&H 4309 (18 July 2006)
R.S.A. No.3522 of 2001
Date of decision:25.7.2006
M/S Gupta Oil Store,Ladwa through its partners.
M/S Hindustan Petroleum Corporation Ltd. and others.
CORAM : Hon'ble Mr.Justice Mahesh Grover
Present: Shri Rajesh Garg, Advocate for the appellant.
Shri Anil Malhotra, Advocate for respondent no.1.
Shri R.N.Lohan, Advocate for respondent nos. 2 to 8.
This appeal has been filed against the judgments and decrees dated 26.8.2000 and 15.6.2001 passed by Civil Judge (Junior Division), Kurukshetra ( hereinafter referred to as `the trial Court') and District Judge, Kurukshetra (hereinafter described as `the lower Appellate Court'), respectively.
A suit for mandatory injunction was filed in the trial Court by M/S Gupta Oil Store, Ladwa (the appellant) through Om Parkash against M/S Hindustan Petroleum Corporation Ltd. (hereinafter described as `the Corporation'), Kapoor Chand (predecessor-in-interest of respondent nos. 2 to 8 in this appeal) and Purshotam Lal. Om Parkash claimed that it was a partnership firm and he was one of the partners. Kapoor Chand and Purshotam Lal were stated to be other partners of the firm in equal shares along with Om Parkash. The character of the firm was stated to be Joint Hindu Family firm. It was averred that the firm had been running oil business since 8.10.1960. Prior to this, all the three persons, namely, Om Parkash, Kapoor Chand and Purshotam Lal were claimed to have been doing the business in the name and style of M/S Lakhi Ram Sadhu Ram. It was further averred that the firm was desirous of setting up of a petrol pump and for this purpose, some land was obtained on lease which was jointly owned and possessed by Smt.Darshni Devi wife of Om Parkash and Smt.Shakuntala Devi wife of Kapoor Chand. A petrol pump was accordingly set up after completing all the formalities and the petroleum products were being sold by the firm under the name and style of M/S Gupta Oil Store, Ladwa. It was alleged that after in the month of April,1984, Kapoor Chand turned hostile and allegedly obtained a lease of some property with a view to shift the petrol pump run by the firm to the new place by excluding Om Parkash and Purshotam Lal from the joint venture.
When Om Parkash came to know about this, he filed suit on 27.6.1985 in the name of Joint Hindu Family Firm M/S Gupta Oil Store, Ladwa against Kapoor Chand, Purshotam Dass and two others for permanent injunction restraining the respondents from shifting the oil business from the present place to any new place (That suit was, however, dismissed on 23.1.1995).
Om Parkash also wrote to the Corporation to continue the supply of petroleum products to the firm and not to recognise Kapoor Chand as the sole partner of the dealership, but to no avail and hence, the instant suit was filed on 2.5.1986 praying that the Corporation be directed to re-commission the outlet in the name of the firm and to supply oil products to it.
The Corporation contested the claim of the appellant and stated that there was no privity of contract between it and the appellant and in fact, Kapoor Chand was its dealer and M/S Gupta Oil Store was never appointed as such.
In a separate written statement filed by him, Kapoor Chand denied the business of the Joint Hindu Family and pleaded that vide agreement dated 2.1.1976 executed between him and the Corporation, he alone was the sole dealer and that the appellant had no concern with the said venture. He had contended that the business of M/S Gupta Oil Store was being run by him and that Om Parkash and Purshotam Lal were joined only for the purpose of running the petrol pump, but as far as the dealership is concerned, they had nothing to do with the same.
Purshotam Lal, who was also impleaded as defendant in the suit, filed a separate written statement supporting the case of the appellant.
On the pleadings of the parties, the folllowing issues were framed:-
1.Whether defendantno.1 has issued licence to plaintiff and defendant no.?OPP
2.Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD
3.Whether the suit of the plaintiff is not maintainable?OPD 4.Whether the plaintiff has got no locus standi to file and maintain the present suit?OPD
5.Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties?OPD
6.Whether the plaintiff has no cause of action?OPD 6-A. Whether the agreement/licence dated 2.1.1976 is forged and fabricated, if so to what effect?OPP 7.Relief.
Thereafter, the parties were afforded opportunities to adduce oral as well as documentary evidence. The trial Court dismissed the suit of the appellant and in appeal, the findings recorded by it were affirmed by the lower Appellate Court.
Dis-satisfied with the aforesaid judgments, the appellant has filed the present appeal.
Shri Rajesh Garg, learned counsel for the appellant contended that the judgments of the Courts below are erroneous as the evidence on record had not been properly appreciated. Attention was drawn to some of the proceedings before the trial Court wherein attempts were made to examine one S.T.Bombaywala, who was an employee of the Corporation and a signatory to the agreement of 1976 by which Kapoor Chand had been appointed as dealer. During the course of proceedings and in one of the orders, the trial Court in its efforts to procure the evidence of the aforementioned witness, directed his examination by appointing a Local Commissioner and the Corporation was directed to pay Rs.5000/- as expenses. The Corporation, however, did not deposit the amount and the said witness could not be examined. Learned counsel for the appellant submitted that an inference should be drawn against this conduct of the Corporation and it should beheld that there was no conclusive evidence of the agreement in favour of Kapoor Chand.
Shri Anil Malhotra, learned counsel for the Corporation stated that the appellant had no concern with the dealership which had been validly sanctioned in favour of Kapoor Chand.
Shri R.N.Lohan, counsel for the legal representatives of Kapoor Chand supported the contention of Shri Malhotra.
After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that the appeal merits dismissal. The Corporation itself has stated that the dealership was sanctioned in favour of Kapoor Chand. There is, thus, absolutely no need to further go into the matter. Admittedly, the Corporation had no interest in the dispute inter se between the appellant and Kapoor Chand and, therefore, once it had submitted that the dealership was given in favour of Kapoor Chand, there was absolutely no reason to doubt the same. No further evidence was required on the issue. The contention of the appellant's counsel is, therefore, totally misplaced. The consistent findings of facts recorded by the Courts below do not warrant any interference in a Regular Second Appeal as has been held by a number of pronouncements of the Apex Court Ajit Chopra Versus Sadhu Ram and others- 2000(1) S.C.C. 114 and Mohd. Hadi Hussain Versus Abdul Hamid Choudhary and others, 2000(10) S.C.C. 248.
Even otherwise, the maintainability of the suit was also doubtful. The case of the appellant was that it was a partnership firm, but there was no evidence to show that the firm was a registered one and that Om Parkash was a partner in it. This is in complete violation of Section 69 (2) of the Indian Partnership Act, which reads as under:- "69.Effect of non-registration.-(1) xx xx xx (2)No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3)xx xx xx xx
(4) xx xx xx xx"
The appellant failed to show that the partnership was registered or that Om Parkash was partner in the firm. As noticed hereinabove, a civil suit had been filed by Om Parkash against Kapoor Chand and others for permanent injunction in the year 1985 and that suit was dismissed. It was specifically held therein that entity of M/S Gupta Oil Store had undergone a change after 1984 and Kapoor Chand had diversified on its own and, therefore, he had no concern with the said firm.
For the reasons recorded above, there is no illegality or infirmity in the judgments and decrees of the Courts below, as a result of which the present appeal fails and is dismissed as such with no orders as to costs.
July 25,2006 ( Mahesh Grover )
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