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2013 DIGILAW 2085 (DEL)

Bal Krishan v. Tara Shahzad Bahadur

2013-10-29

V.K.SHALI

body2013
Judgment : V.K. Shali, J. (Oral) 1. The learned counsel for the appellant has contended that this application is not being pressed as the points which have been urged in the said application are already taken up in CM No.2975/2013. The learned counsel for the respondent does not have any objection. 2. Having regard to the statement made by the learned counsel for the appellant, the application is dismissed as not pressed. RSA No.235-237/2005 & CM No.2975/2013 1. Colossal court time has been wasted by the appellant by keeping this regular second appeal pending in this court for the last eight years without formulating any substantial question of law in the appeal. 2. I have heard both the learned counsel for the appellants as well as the learned counsel for the respondent. 3. The brief background of the case would be required to be given for elucidating the issue in controversy. 4. The present appellants filed a suit bearing Suit No.376/1991 titled Balkrishan & Ors. v. Mr. Tara Shahzad Bahadur & Anr. For permanent injunction so far as the running of business by the name of Maharaja Lal & Sons (New Delhi), at Connaught Place and Karol Bagh was concerned. Ancillary prayers were also made in the civil suit. The respondent filed a written statement and contested the claim of the appellants. A counter claim for dissolution of partnership dated 08.04.1989 consisting of five partners was set up. It was further prayed in the counter claim that the present appellants/plaintiffs be directed to render the accounts. The predecessor of the respondent herein had made a statement that they do not intend to interfere or dispossess the appellants as was contemplated by them in their plaint and accordingly the suit filed by the present appellants came to be dismissed as withdrawn. However, the counter claim continued to be contested by the present appellants/plaintiffs (defendants in the counter claim) and the same was decided by the trial court after striking the issues and permitting the parties to adduce their respective evidence. The counter claim of the respondent was dismissed on 15.02.2003. The present appellants had taken a plea during the trial of counter claim that on 21.05.2002, a new partnership was formulated amongst the three partners of the erstwhile Maharaja Lal & Sons (New Delhi). These partners were Mr.Balkrishan, Mr.Sanjeev Mathur and Mr.Rajat Mathur. The counter claim of the respondent was dismissed on 15.02.2003. The present appellants had taken a plea during the trial of counter claim that on 21.05.2002, a new partnership was formulated amongst the three partners of the erstwhile Maharaja Lal & Sons (New Delhi). These partners were Mr.Balkrishan, Mr.Sanjeev Mathur and Mr.Rajat Mathur. The trial court had come to the conclusion that as a new partnership had come into existence, therefore, the present respondents ought to have sought the relief qua the new partnership deed also. It may also be pertinent to mention here that Mr.Shahzad Bahadur, the original defendant and the counter claimant, had expired on 14.02.2000 and his wife Mrs. Tara Shahzad Bahadur was substituted as a legal heir by the first appellate court. 5. The respondent feeling aggrieved by the judgment of the trial court, preferred an appeal. The appeal of Mrs. Tara Shahzad Bahadur was allowed by the first appellate court on the ground that the respondent was under no obligation to have assailed the new partnership deed dated 21.05.2002 and the original partnership of 08.04.1989 deserves to be dissolved. 6. Feeling aggrieved by the said order of the first appellate court, the present appellants preferred two petitions – one was CM(M) No.607/2005 and the other was the present regular second appeal No.235-237/2005. 7. Both these petitions were clubbed together and adjourned for hearing from time to time without any sincere efforts being made by the appellants to formulate substantial questions of law, a precondition for issuance of notice to the respondent in the regular second appeal. 8. So far as CM (M) No.607/2005 is concerned, the main orders were being recorded in the same and it may be pertinent to reproduce the order dated 21.05.2005 passed by the learned single Judge of this court. “CM No.7737/2005 1. On 30th April 2005 before the Court of Sr.Civil Judge, Delhi, Mr.Rajeev Mago, M/s Rajeev Mago & Associates, Chartered Accountants, G-82, Lajpat Nagar-II, New Delhi-24 was appointed to assess and distribute the properties of M/s Maharaja Lal & Sons. The learned counsel for the parties agree that this order has still not been implemented. 2. The present application under Section 151 CPC on behalf of the petitioner is for de-sealing of shops and de-freeezing of bank accounts. The learned counsel for the parties agree that this order has still not been implemented. 2. The present application under Section 151 CPC on behalf of the petitioner is for de-sealing of shops and de-freeezing of bank accounts. The learned counsel for the respondent, Shri R.S.Suri has urged that the facts of the case did not call for any interference at the behest of the appellant whose conduct disentitled him to any interim relief and in any case since the respondent owns 66% shares and the petitioners own only about 33% shares, therefore n case this Court is of the view that the desealing of the two showrooms should take place the Connaught Place Show Room should be given to them and the Ajmal Khan Road Showroom maybe given to the appellant/applicant. Mr.Prasad, the learned senior counsel for the petitioner has sought the running of the Connaught Place show room by pleading that Ms.Katyal who is not a party is being inducted to run the business by the respondents, a plea strongly refuted by Shri. Suri who contends that Ms.Katyal owns 33% shares. It is also contended that the respondents lack any experience in conducting the business. 3. It is not in dispute that the learned counsel for both the parties had agreed that it will be in the interest of justice of the parties to have the shares valued and upon the valuation, the division of the assets of the partnership takes place. There is no dispute upto this extent between the parties. Only method and manner of valuation was in dispute. 4. Furthermore pending the process of valuation no useful purpose will be secured by keeping both the showrooms at Connaught Place and Ajmal Khan Road sealed and it is in the interest of the parties and the partnership that the showrooms function during the valuation and adjudication of the shares of the partnership. Consequently, I am of the view that both the showroom should be desealed and the bank account defrozen so that the showrooms continue to generate income for the firm during the process of valuation and eventual division of assets. Since admittedly the respondent owns 66% shares their preference for the Connaught Place showroom deserved to be given primacy. Consequently, the Ajmal Khan Road showroom shall be desealed and released to the applicant/appellants and the Connaught Place showroom to the respondents. 5. Since admittedly the respondent owns 66% shares their preference for the Connaught Place showroom deserved to be given primacy. Consequently, the Ajmal Khan Road showroom shall be desealed and released to the applicant/appellants and the Connaught Place showroom to the respondents. 5. The Court is of the view that that without expressing any opinion on the capabilities of Mr.Rajiv Mago who is undisputedly is a respected professional Chartered Accountant and without prejudice to the pleas of the parties, Mr.B.S.Sistani, Chartered Accountant, I-22, Jangpura Extension, New Delhi (Tel.24324085) is appointed by this Court to value the assets of the firm and its goodwill and indicate the approximate valuation by filling a report in this Court not later than 15th July, 2005. 6. In the meanwhile, the eventual control of both the premises and the assets and the bank accounts shall be retained by the Chartered Accountant who is permitted to give directions for de-sealing, running and accounting of the two partnership concerns. The C.A. Shri Sistani shall also be entitled to have the bank accounts defrozen by virtue of this order so as to permit the functioning of the two showrooms under his directions. To begin with the chartered accountant shall be paid a sum of Rs. 40,000/- plus actual expenses to be borne by each of the parties in equal share of Rs. 20,000/- before the next date of hearing. The chartered accountant to file his report with advance copies to both the parties. 7. Parties to appear before the Chartered Accountant Sh.B.S.Sistani on 30th May, 2005 at 4 P.M. 8. Copy of the order be given dasti to the counsel for the parties. Sd/-” 9. A perusal of the aforesaid order would show that so far as the respondent is concerned, she admittedly is owning 66% share and the appellants are owning 33% share and the court had also appointed a receiver for the purpose of rendition of accounts after assessing the value of the assets of the partnership firm. Pursuant to the aforesaid order of the court, Mr.B.S.Sistani, Chartered Accountant, having office at I-22, Jangpura Extension, New Delhi has already purported to have furnished his report with regard to the valuation of the assets and the goodwill of the firm. 10. Pursuant to the aforesaid order of the court, Mr.B.S.Sistani, Chartered Accountant, having office at I-22, Jangpura Extension, New Delhi has already purported to have furnished his report with regard to the valuation of the assets and the goodwill of the firm. 10. The learned counsel for the respondent has also pointed out that although CM(M) No.607/2005 was held to be not maintainable by this court vide order dated 03.01.2012, but a specific precaution was taken, when it was clubbed with the present regular second appeal, that the orders which are passed in CM(M) No.607/2005 will be deemed to have been the orders passed in RSA. 11. The learned counsel for the appellants has contended that the order dated 21.05.2005 stands superseded by a fresh order dated 20.12.2010 in the RSA. 12. I have gone through the order dated 20.12.2010. In the said order, it has been recorded by the learned single Judge that it is not possible for the parties to resolve their disputes amicably and the attention of the court was drawn to the order dated 21.05.2005 and the settlement arrived at between the parties therein. It was also pointed out to the court that the Chartered Accountant in terms of the said order has already submitted his report and the counsel for the appellants has also filed objections to the said report. 13. The case was adjourned thereafter for framing substantial questions of law. 14. There is no doubt that in the order dated 20.12.2010, the court has observed that the parties are not able to resolve their disputes amicably and the attention of the court was also drawn to the order dated 21.05.2005 by virtue of which the parties are purported to have settled their disputes, but in the order dated 21.05.2005, the parties had agreed to the valuation of the assets and goodwill of the firm, but so far as the percentage of the shares of the appellants and the respondent is concerned, which were apportioned at 33% and 66% between the appellants and the respondent, that was not by way of any settlement having been arrived at between the parties. Therefore, merely on account of the order having specifically been passed by this court on 20.12.2010, it cannot be said that the shares of the parties which are to the extent of 33% & 66% can be varied or obliterated. Therefore, merely on account of the order having specifically been passed by this court on 20.12.2010, it cannot be said that the shares of the parties which are to the extent of 33% & 66% can be varied or obliterated. The only question which arises for consideration is as to whether the parties who had agreed to the valuation and the settlement/rendition of accounts in the terms of the report having been filed by the receiver, can be said to have also been obliterated or not. 15. Admittedly, in the instant case, the first appellate court has passed a decree in favour of the respondent for dissolving the partnership dated 08.04.1989 and on account of the dissolution of the partnership, the necessary corollary of the same is that the assets, goodwill and the properties of the partnership have to be got assessed and thereafter a proper division of the same has to be done and the appellants who happen to be the defendants in the suit have to render the accounts of the partnership to the respondent herein. This is dehors the fact that the court will be considering whether any substantial question of law would arise in the present second appeal or not. 16. With regard to formulation of substantial questions of law, admittedly no substantial question of law has been formulated and it is only on 23.01.2013 that an application without any provision of law having been mentioned on the same has been filed wherein certain questions, which are claimed by the appellants as substantial questions, are formulated. 17. I have gone through these questions which are formulated by way of submissions and none of them, in my considered view, constitutes a substantial question of law. The learned counsel for the appellant was not able to convince the court that any substantial question of law is involved which would warrant issuance of notice. So far as the order of the first appellate court dissolving the partnership is concerned, that is perfectly legal and valid and necessary effect to the dissolution of the partnership has to be given which can be done only by the trial court where the matter stands remanded. 18. So far as the order of the first appellate court dissolving the partnership is concerned, that is perfectly legal and valid and necessary effect to the dissolution of the partnership has to be given which can be done only by the trial court where the matter stands remanded. 18. I have been given to understand that insofar as the appellant is concerned, he has admittedly filed certain objections to the report of the receiver and the trial court will decide the objections of the appellant to the report of the receiver and thereafter pass a final decree. 19. The present regular second appeal is accordingly dismissed. 20. The parties are directed to appear before the trial court on 23.11.2013 as fixed by the trial court. 21. The Registry is directed to segregate the report of the receiver along with the objections filed and transmit the same to the trial court for decision in accordance with law.