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2005 DIGILAW 1187 (AP)

K. Narasimha Reddy v. G. Sudhakara Chary

2005-12-14

L.NARASIMHA REDDY

body2005
( 1 ) DEFENDANT in O. S. No. 421 of 2004 on the file of the learned Principal junior Civil Judge at Sangareddy, are the petitioners herein. The respondent herein filed the suit for the relief of perpetual injunction, restraining the petitioners from interfering with the functioning of the factory in the suit schedule premises. It was alleged that the 2nd petitioner was taken as a dormant partner in the partnership firm, by name M/s. Kiran Mayee Engineering work Limited. The respondent pleaded that the 2nd petitioner retired from partnership, by executing a deed of dissolution, dated 27-2-2003, and thereafter, she was paid certain amounts towards her share. The firm is said to have since been reconstituted, by taking one Mr. G. Satyam as partner. ( 2 ) THE respondent filed I. A. No. 924 of 2004 under Order 39 Rules 1 and 2 of c. P. C, seeking the relief of temporary injunction. The application was resisted by the petitioners. The trial Court allowed the la. through its order, dated 25-10-2004. Aggrieved thereby, the petitioners filed c. M. A. No. 38 of 2004 in the Court of the learned Principal District Judge, Medak at sangareddy. The appeal was dismissed on 17-10-2005. Hence, this civil revision petition. ( 3 ) SMT. Bobba Vijaya Lakshmi, the learned Counsel for the petitioners submits that the trial Court recorded a clear finding to the effect that the cheques issued by the respondent towards the share of the 2nd petitioner were dishonoured, and despite the same, it granted temporary injunction in favour of the respondent, on the sole basis that the 2nd petitioner signed upon a deed of dissolution, dated 27-2-2003, marked as Ex. P. 1. She further submits that ex. P. 1 was sent for examination by forensic Science Laboratory, and during the pendency of the C. M. A. , a report was received to the effect that the signature of the 2nd petitioner was forged on the deed of dissolution. She contends that in view of these facts and circumstances, there does not exist any justification for grant or continuance of temporary injunction in favour of the respondent. She contends that in view of these facts and circumstances, there does not exist any justification for grant or continuance of temporary injunction in favour of the respondent. ( 4 ) SRI M. S. R. Subrahmanyam, the learned Counsel for the respondent, on the other hand, submits that both the Courts below found that there exist a prima facie case and balance of convenience in favour of the respondent, and being a question of fact, the same cannot be interfered with in mis revision petition. He further contends that the question as to whether Ex. P. 1 is genuine or not, can be decided only at the time of trial of the suit and it is too early to form an opinion as regard the same. The learned Counsel points out that if the petitioners are entitled to receive any amount from the respondent, they can have recourse to the appropriate remedy, and once the firm was dissolved, they cannot interfere with the functioning of the factory. ( 5 ) THE 1st petitioner is the husband of the 2nd petitioner. Even according to the respondent, the 2nd petitioner was one of the partners in the firm. The sole basis for his filing the suit as well as the application for temporary injunction was that the 2nd petitioner retired from the firm by executing a deed of dissolution, dated 27-10-2003. It was marked as Ex. P. 1. The record discloses that at a subsequent stage, the respondent issued two cheques, dated 31-12-2003 and 31-1-2004, for a sum of Rs. 3,00,000/- and Rs. 1,00,000/- respectively. While the petitioners allege that both the cheques have been dishonoured when presented, the respondent contends that the cheque for a sum of Rs. 3,00,000/-was honoured. ( 6 ) THE rights of a partner of a firm can be put to an end to, only through the process of dissolution of the firm or through his retirement therefrom. The trial court took Ex. P. 1 on its face value and proceeded on the footing that the 2nd petitioner stood retired from the firm. However, it failed to consider as to what was the necessity for the respondent to issue cheques for a sum of Rs. 4,00,000/-almost one year after the alleged dissolution. The allegation of the petitioners that the said cheques were not honoured, was not seriously disputed by the respondent before the trial Court. However, it failed to consider as to what was the necessity for the respondent to issue cheques for a sum of Rs. 4,00,000/-almost one year after the alleged dissolution. The allegation of the petitioners that the said cheques were not honoured, was not seriously disputed by the respondent before the trial Court. This contention was brushed aside, on the plea that the petitioners have to work out their remedies elsewhere. The fact that the relief of injunction was discretionary and equitable in nature does not appear to have been seriously taken into account. The trial Court was required to examine the bona fides of the respondent, in the context of his not explaining as to why the cheques issued by him were dishonoured. ( 7 ) WHATEVER may have been the justification for the trial Court in granting the relief of temporary injunction on the basis of Ex. P. 1, by the time the C. M. A. filed by the petitioners came to be heard, an important and substantial development has taken place. Ex. P. 1 was sent for examination by the Forensic Science Laboratory. The report disclosed that the signature of the 2nd petitioner was forged on it. The lower appellate Court did not take such an important development with the amount of seriousness, which deserved. The issue was glossed over by observing that it can be considered at the time of trial of the suit. ( 8 ) TIME and again, the Courts have been hinting that, in the matter of granting discretionary and equitable reliefs, the courts must be satisfied about the bona fides and conduct of the person, who claims such a relief. In the instant case, it had emerged that the plea put forward by the respondent that the 2nd petitioner retired from partnership is, prima facie, unbelievable, since Ex. P. 1 is found to have been fabricated. Another important aspect is that the cheques issued by the respondent towards payment of the share of the 2nd petitioner were dishonoured. These two factors were sufficient to deny the relief of temporary injunction to the respondent. ( 9 ) FOR the foregoing reason, the civil revision petition is allowed and the order of temporary injunction granted by the Court of Principal Junior Civil Judge, at Sangareddy in LA. These two factors were sufficient to deny the relief of temporary injunction to the respondent. ( 9 ) FOR the foregoing reason, the civil revision petition is allowed and the order of temporary injunction granted by the Court of Principal Junior Civil Judge, at Sangareddy in LA. No. 924 of 2004 in O. S. No. 421 of 2004 as confirmed by the Court of Principal district Judge, Medak, at Sangareddy in c. M. A. No. 38 of 2004 is set aside. There shall be no order as to costs.