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2005 DIGILAW 1245 (MAD)

N. Sivamani & Another v. Thilagavathy & Another

2005-08-02

R.BANUMATHI

body2005
Judgment :- This Revision Petition is directed against the Order of Principal District Munsif, Kancheepuram, made in I.A.No.1187 of 2000 in O.S.No. 523 of 1997, dated 1.2.2001 allowing the petition filed by the Plaintiff under Order XVI, Rule 21 and Section 151 C.P.C. directing the first Defendant to produce the petition mentioned documents into the Court in connection with O.S.No. 523 of 1997. Defendants 1 and 2 are the Revision Petitioners. 2. O.S.No. 523 of 1997:- First Respondent/Plaintiff has filed this suit to pass a preliminary decree for dissolution of partnership firm M/s. Navasakthi Silks. Case of the Plaintiff is that the Plaintiff and the Defendants were doing the business of manufacturing and selling of Silk sarees; carrying on business under the name and style of M/s. Navasakthi Silks. The Plaintiff and the third Defendant are each entitled to the share of profit and loss at the rate of 33%. The first and the second Defendants are entitled to the share of 33%. The firm was having 22 silk looms and it had advanced a sum of Rs.90,000/- to the Weavers out of the turnover of the firm. In or about December 1995, the Plaintiff came to know that without the Plaintiff's consent, the third Defendant has borrowed a sum of Rs.1,00,000/- from a Finance Company and utilised a major part of the money for his personal benefit and to the detriment of the Plaintiff's interest in the firm. The Plaintiff was no longer permitted to look into the accounts by the first and third Defendants. The Plaintiff suspects that the Defendants have colluded together against the Plaintiff's interest to defraud the Plaintiff legitimate share of profit. The Plaintiff further apprehends that the Defendants in order to deceive and defraud the Plaintiff's due share and profit and trying to create debts to the firm with the third parties. Alleging that the Defendants 1 and 3 are acting against the interest of the firm, the Plaintiff has filed the suit for dissolution of the firm - M/s. Navasakthi Silks and also for the rendition of the accounts directing the Defendants to render the accounts. 3. Denying the allegations in the Plaint, the first Defendant has filed the counter statement contending that only third Defendant was running the firm as the Managing Partner and the Plaintiff's Husband namely Venkatesan was looking after the business along with the third Defendant. 3. Denying the allegations in the Plaint, the first Defendant has filed the counter statement contending that only third Defendant was running the firm as the Managing Partner and the Plaintiff's Husband namely Venkatesan was looking after the business along with the third Defendant. Since the Plaintiff's Husband was an employee of Krishna Silk Marketing Society at Kancheepuram. First Defendant, second Defendant and the Plaintiff are female partners and hence, they were not taking active part in the business. The Plaintiff's Husband Venkatesan and the third Defendant had taken all the accounts of the firm. In the month of November 1995, the first Defendant came to understand that the Plaintiff's Husband and the third Defendant have been doing some mischief in the management of the partnership business. When the first Defendant questioned the same, the third Defendant and the Plaintiff's Husband had removed the entire accounts book from the business premises and stopped the business abruptly. The third Defendant had raised a loan of Rs.1,00,000/- along with the Plaintiff's Husband without the consent of the Defendants 1 and 2. That loan was raised from Vanni Vinayaga Investments and only the third Defendant was the active partner of the said Investments. Taking advantage of being the active partner of the partnership firm and also of the said Finance Company, the third Defendant misusing his official capacity as the Managing partner of M/s. Navasakthi Silks had borrowed a sum of Rs.1,00,000/- on various occasions from the said Vanni Vinayaga Investments. The consent of the other partners have not been taken to borrow a huge amount of Rs.1,00,000/- as loan to the partnership business. The third Defendant had already filed the suit in O.S.No. 541 of 1997 for rendition of accounts against the Plaintiff and the Defendants 1 and 2 and the first Defendant had already filed her counter in the said suit. Only the Plaintiff and the third Defendant alone are responsible for all the account books. 4. I.A.No. 1187 of 2000:- This application was filed by the Plaintiff to direct the Defendants to produce the petition mentioned documents. According to the Plaintiff, the day today affairs of the firm, Banking operations, public relations, purchase and sales and entire management of the firm have been looked after by the Respondents/Defendants and all the relevant documents are in care and custody of the Respondents/ Defendants. According to the Plaintiff, the day today affairs of the firm, Banking operations, public relations, purchase and sales and entire management of the firm have been looked after by the Respondents/Defendants and all the relevant documents are in care and custody of the Respondents/ Defendants. It is further alleged that the business was carried on at No.10 Deivasigamani Nagar, Kancheepuram and only the first and the second Defendants were permanently residing in the said address looking after the business. All the original records of the said firm is in the custody of the Defendants. Hence, the Plaintiff has filed this application to direct the Defendants to produce the petition mentioned documents. 5. First and third Defendants have filed the counter statement denying the allegations in the petition. The first Defendant has stated that she is having only the xerox copy of the Partnership Deed. The first and second Respondents being the women, the business was run by the Plaintiff's Husband Venkatesan and the third Defendant. The first Defendant herself had lodged a complaint through the Judicial Magistrate No.I, Kancheepuram and the same has been forwarded to the District Crime Branch, Kancheepuram for investigation. Even in the said complaint, the first Defendant had clearly mentioned that only the Plaintiff and her Husband and the third Defendant were incharge of all the account books and they were taken all the account books with a view to defraud and defeat the valuable claim of the first Defendant. The Plaintiff cannot call upon the Defendants 1 and 2 to produce the documents. 6. The third Defendant has filed a separate counter contending that he is a man of weak and imbecile mind and cannot think on his own accord. According to him, he has been taking treatment in the Hospital and was a Dormant Partner and he had no role to play in the said firm. The third Defendant has already filed M.H.O.P. No. 58 of 1997 before the District Court, Chengalpattu and the third Defendant had been declared as lunatic and his wife has been appointed as guardian for him and she alone has been looking after the case on behalf of the third Defendant. She has also filed O.S.No.541 of 1997 on the file of the District Munsif Court, Kancheepuram for rendition of accounts against the Plaintiff and the Defendants 1 and 2 and the said suit is pending. She has also filed O.S.No.541 of 1997 on the file of the District Munsif Court, Kancheepuram for rendition of accounts against the Plaintiff and the Defendants 1 and 2 and the said suit is pending. Only the first Defendant was keeping all the accounts and running the firm. 7. Upon consideration of the averments in the affidavit and in the counter statement, the learned District Munsif, allowed the application directing the first Defendant to produce the petition mentioned documents. The lower Court was of the view that on which date, the third Defendant has become mentally weak is a question to be determined only at the time of trial. Pointing out that only the first and the third Defendants have been authorised to issue the cheque and the presumption is both the persons would have run the business, the learned District Munsif referred to the clause in the Partnership Deed wherein all the four Partners are termed as active Partners and on such findings directed the first Defendant to produce the documents mentioned in the petition before 15.2.2001. 8. Aggrieved over the order of the trial Court directing the first Defendant to produce the petition mentioned documents, the Defendants 1 and 2 have preferred this Revision. 9. The learned counsel for the Revision Petitioners has contended that the Revision Petitioners being women, they were not in management of the partnership business and that the entire business was being run only by the third Defendant/second Respondent and the trial court erred in directing the Revision Petitioners to produce the documents. She has further contended that the trial Court has not properly appreciated the defence put forth by the Defendants in the written statement and that only the third Defendant was in management of the partnership business. He has also submitted that the declaration of the third Defendant as a Lunatic in the Mental Health Original Petition in MHOP No. 58 of 1997 cannot be an impediment in directing him to produce the petition mentioned documents. 10. Countering the arguments, the learned counsel for the first Respondent/Plaintiff reiterated that the documents are with the Defendants and the trial Court has rightly ordered the production of the documents and the impugned order does not suffer from any error warranting interference. 11. 10. Countering the arguments, the learned counsel for the first Respondent/Plaintiff reiterated that the documents are with the Defendants and the trial Court has rightly ordered the production of the documents and the impugned order does not suffer from any error warranting interference. 11. Upon consideration of the contention of both parties, the impugned order and other materials on record, the following points arise for consideration in this Revision:- i) In the facts and circumstances of the case, was the trial court right in directing the first Defendant to produce the petition mentioned documents? ii) Whether the impugned order suffers from material irregularity warranting interference? 12. Contending that the Defendants 1 and 2 were permanently residing at No.10, Deivasigamani Nagar, Kancheepuram where there were looking after the business, the Plaintiff has filed the application to direct the Defendants to produce the following records:- "1. The Firm Registration Certificate of M/s. Navasakthi Silks. 2. Partnership Deed of M/s. Navasakthi Silks. 3. Purchase Bills for the years 1994-95, 1995-96 and 1996-97. 4. Sales Bills for the years 1994-95, 1995-96 and 1996-97. 5. Day Book 6. Ledger. 7. Weavers Ledger and Accounts. 8. Saree Cost Book. 9. Stock Ledger. 10. Minutes Book. 11. Pass Book of M/s. Navasakthi Silks". 13. Defendants 1 and 2 are resisting the application contending that only the third Defendant was in management of the Partnership business, who had been declared as Lunatic by the Order of the District Court in MHOP No.58 of 1997. 14. Order XI, Rule 15 C.P.C. is the provision enabling the party to give notice to another party to produce such documents in any list annexed to the pleadings or to produce such documents for the inspection of the parties giving such notice. Order XI, Rule 15 - Prior to the enforcement of C.P.C. (Amendment) Act, 1999 reads:- R. 15. Inspection of documents referred to in pleadings or affidavits. Order XI, Rule 15 - Prior to the enforcement of C.P.C. (Amendment) Act, 1999 reads:- R. 15. Inspection of documents referred to in pleadings or affidavits. - Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, or who has entered any document in any list annexed to his pleadings, to produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit". By the Civil Procedure Code (Amendment) Act 1999, this Rule has been amended introducing the following modifications. "In Rule 15 of Order XI the words ' at or before the settlement of issues' have been substituted for the words 'at any time'." The amendment of the Provision has come into force with effect from 1.7.2002. Since the application calling upon the production of the documents was filed in September 2000, only the Provision of Code of Civil Procedure prior to the Amendment is applicable. 15. Under Order XI, Rule 15 C.P.C., a party shall be entitled to give notice to any other party to produce such document which has been entered in any document list annexed to the pleadings or reference is made to any such document. It is relevant to note that in the Written Statement filed by the first Defendant, the above mentioned documents have neither been listed nor reference has been made to those documents. Dispute is raised as to who was in management of the partnership business. It is relevant to note that in the Written Statement filed by the first Defendant, the above mentioned documents have neither been listed nor reference has been made to those documents. Dispute is raised as to who was in management of the partnership business. When the reference is not made to the above documents, the question arises as whether the Court could direct the first Defendant / first Revision Petitioner to produce the petition mentioned documents. 16. In the supporting affidavit, the Plaintiff has stated that the Firm was carrying on business at No.10, Deivasigamani Nagar, Kancheepuram and the Revision Petitioners/ Defendants 1 and 2 were permanently residing in the above address. The Revision Petitioners deny the residence at Kancheepuram and contend that they are permanent residence of Chennai. The merits of the contention could be gone into only at the time of trial when the parties adduce evidence. 17. Under Section 65 of the Indian Evidence Act, before secondary evidence of the documents could be adduced, it is essential that the procedure in Section 66 of the Indian Evidence Act should be complied with. It is necessary that the notice must be given to produce the documents. 18. In the Plaint, the Plaintiff has alleged that the Defendants 1 to 3 were managing the Account Books, Weavers Accounts, Ledger, Day Book, Saree Cost Book, Stock Ledger, Minutes Book etc. Since the Defendants 1 and 2 are alleged to be residing in the said address and in the light of the allegations that the Defendants 1 to 3 were managing the account Books, the learned District Munsif felt that the Defendants must be having the Account Books and other records pertaining to the Partnership business. In the description of the petition, the documents called for have been clearly described. The objection of the Revision Petitioners/ Defendants 1 and 2 is that they had no active role in the partnership business but only Dormant Partners. According to the third Defendant, he was mentally imbecile and that he is declared as Lunatic in MHOP No. 58 of 1997 on the file of the District Court, Chengalpattu. The fact whether he was actually mentally infirm or not during the relevant period and the extent of mental infirmity is to be determined only at the time of trial. According to the third Defendant, he was mentally imbecile and that he is declared as Lunatic in MHOP No. 58 of 1997 on the file of the District Court, Chengalpattu. The fact whether he was actually mentally infirm or not during the relevant period and the extent of mental infirmity is to be determined only at the time of trial. In that view of the matter, the trial Court rightly directed the first Defendant to produce the documents. 19. The Plaintiff has also alleged that D1-Sivamani and D3- Dhanasekaran being the partners have been permitted to operate the Bank Account. Being a lady, whether the first Defendant- Sivamani was operating the account is the issue which has to be adjudicated at the time of trial. Likewise, the mental infirmity and the nature of infirmity of D3 is also a question that is to be determined only at the time of trial. Under Order XVI, Rule 21 C.P.C., the learned District Munsif has directed the first Defendant to produce the documents. Rule 21 C.P.C. indicates that one party to the suit could examine the other party as his witness or require him to produce the documents. Though the first Defendant is called upon to produce the documents, the learned District Munsif has not taken note of the fact that the documents have not been referred in the written statement of the first Defendant. In that view of the matter, mere calling upon the first Defendant to produce the documents presumes availability of the documents with the first Defendant. If the documents are not produced, it would have serious implications upon the first Defendant particularly non compliance of the order of the Court. Since the documents have been ordered to be produced, in case of non production, adverse inference might be drawn against the first Defendant. Hence, the order of the trial Court directing the first Defendant to produce the documents is to be modified subject to the availability of the documents. Interest of justice would be met by modifying the impugned order as " first Defendant is directed to produce the petition mentioned documents subject to the availability of the documents". 20. Hence, the order of the trial Court directing the first Defendant to produce the documents is to be modified subject to the availability of the documents. Interest of justice would be met by modifying the impugned order as " first Defendant is directed to produce the petition mentioned documents subject to the availability of the documents". 20. The impugned Order of the Principal District Munsif, Kancheepuram in I.A. No. 1187 of 2000 in O.S.No. 523 of 1997, dated 1.2.2001 is modified as "the first Revision Petitioner/first Defendant is directed to produce the petition mentioned documents subject to the availability of the documents with her. This Revision Petition is ordered accordingly. Consequently, C.M.P. No. 10642 of 2001 is closed.