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2014 DIGILAW 1184 (MAD)

Manjula Sunil v. K. A. Bijoy

2014-06-06

R.KARUPPIAH

body2014
Judgment 1. The Civil Revision Petition is filed by the Civil Revision Petitioners who are defendants 2 and 3 in the original suit against the fair and decreetal order passed in I.A.No.887 of 2006 in O.S.No.199 of 2003 dated 08.02.2008. 2. For the sake of convenience, defendants 2 and 3/Petitioners in I.A.No.887 of 2006 are referred as revision petitioners, the plaintiff/first respondent in I.A.No.887 of 2006 is referred as first respondent and respondents 2 to 4/proposed parties in I.A.No.887 of 2006 are referred as respondents 2 to 4 hereafter. 3. The first respondent filed a suit in O.S.No.199 of 2003 for recovery of a sum of Rs.1,64,715.17/- with interest at 24% p.a. against the revision petitioners, i.e. second defendant and third defendant (second defendant as representative of first defendant). The revision petitioners filed a detailed written statement denying the liability of the above said payment. 4. During the pendency of the above said suit, the revision petitioners filed a petition in I.A.No.887 of 2006 in O.S.No.199 of 2003 under Order I Rule 10(2) and Section 151 code of Civil Procedure to implead the respondents 2 to 4 as defendants 4 to 6 in the main suit. In the above said petition, the revision petitioners have stated that there was a Family arrangements amongst the members of A.P. Madhavan family and all the business concerns have been reconstituted and divided as per the family arrangements and in the above said family arrangements, the respondents 2 to 4 have taken over the first defendant's firm with all its assets and liabilities as per Deed of Partnership, dated 01.04.2003. In view of the same, the respondents 2 to 4 liable to answer the suit claim. Therefore, the respondents 2 to 4 should be impleaded as defendants 4 to 6 in the original suit as proper and necessary parties. 5. The first respondent, who is the plaintiff in the original suit filed a counter, in which it is stated that at the time of filing of the suit, the revision petitioners are partners and they are liable for the day to day affairs of the 1st defendant partnership firm and since there is several and joint liability, the first respondent has rightly included them as parties and therefore, there is no need to implead all the partners. Further, the revision petitioners cannot compel the plaintiff to implead the proposed parties. Further, the revision petitioners cannot compel the plaintiff to implead the proposed parties. The alleged retirement deed, dated 31.03.2003 is not admitted. Further, there is no public notice for retirement from the partnership concerns as contemplated in law. Further the alleged retirement deed is subsequent to the present suit. By mere mentioning of Retirement Deed, the revision petitioners cannot escape from the liability. The above said alleged document is a fabricated one by the revision petitioners only in order to escape from the liability. All the partners, who conducted the business are collectively responsible for settlement. The revision petitioners filed the petition only to drag on the suit proceedings and therefore, liable to be dismissed. 6. The third respondent, who is one of the proposed party remained ex-party. The respondents 2 and 4 alleged proposed parties have filed a separate counter, in which it is stated that at the time of filing of the original suit by the first respondent, these respondents were partners, but these respondents were not impleaded as defendants and also not claimed any relief against these respondents. Therefore, this petition is filed unnecessarily. Further, in the Retirement Deed, dated 01.04.2003 as per the family arrangements, the revision petitioners have not stated anything regarding the pendency of the suit. Therefore, there is no necessity for the revision petitioners to drag these respondents 2 and 4 in the above said proceedings after three years from the date of filing of the suit. Further the claim of the first respondent is bared by limitation and these respondents are unnecessary parties. Therefore, they prayed for dismissal of the above said petition. 7. The Trial Court considered the above said contentions and finally dismissed the petition on the grounds that the alleged re constitution of the first defendant's firm effected on 01.04.2003 after filing of the suit, the revision petitioners failed to prove that all the proposed respondents are liable by adducing documents and further the petition was filed only for delaying the proceedings. Further the Trial Court has held that the revision petitioners have filed a copy of re constitution partnership firm dated 11.04.2003 but not filed the original and on the above said ground also the petition in I.A.No.887 of 2006 is not maintainable. Aggrieved by the aforesaid order, the revision petition is filed by the revision petitioners/defendants 2 and 3. 8. Further the Trial Court has held that the revision petitioners have filed a copy of re constitution partnership firm dated 11.04.2003 but not filed the original and on the above said ground also the petition in I.A.No.887 of 2006 is not maintainable. Aggrieved by the aforesaid order, the revision petition is filed by the revision petitioners/defendants 2 and 3. 8. Learned counsel appearing for the revision petitioners submitted that the respondents 2 to 4 have taken over the first defendant firm and they are continuing as partners in the management of the first defendant firm and therefore, the respondents 2 to 4 are proper and necessary parties for effective conduct of the proceedings. Further, the respondents 2 to 4 themselves have not denied the fact of taking over of the Management and the respondents 2 to 4 alone holding the deposits of the first respondent firm and therefore they are the right persons to answer the suit claim. Further the learned counsel would submit that the original Partnership Deed is with the respondents 2 to 4 but the trial court wrongly dismissed the petition. Further the learned counsel for the revision petitioners pointed out that the liability between the erst wile partners and present partners can be decided only in the main suit. Therefore, the Trial Court erroneously dismissed the above said petition. 9. It is not in dispute that the revision petitioners were the original partners in the first defendant firm viz., M/s Coimbatore Pressings. The first respondent has filed the suit impleading the firm as first defendant and the revision petitioners as defendants 2 and 3 seeking the amount due to the first respondent since the first respondent retired from the first defendant firm. In the above said circumstances, the revision petitioners who are the defendants 2 and 3 filed a petition to implead the respondents 2 to 4 as defendants 4 to 6 in the suit. The first defendant firm was reconstituted on 01.04.2003 and the present partners are the respondents 2 to 4. The above said facts were not denied by both sides. 10. The Trial Court has dismissed the above said petition on the ground that the revision petitioners have not produced the relevant documents to prove that they have retired from the first defendant firm on 31.03.2003. The above said facts were not denied by both sides. 10. The Trial Court has dismissed the above said petition on the ground that the revision petitioners have not produced the relevant documents to prove that they have retired from the first defendant firm on 31.03.2003. As rightly pointed out by the learned counsel for the petitioners that the proposed respondents admitted the fact that the first defendant firm was reconstituted and the proposed respondents are partners from 01.04.2003. It is also admitted that the copy of Partnership Deed is produced by the revision petitioners and the original Partnership Deed is with the respondents 2 to 4. In the above said circumstances, the Trial Court has wrongly dismissed the petition on the ground that the original Partnership Deed was not produced by the revision petitioners. Further the liability as between the erst wile partners and present partners, can be decided only in the original suit as rightly pointed out by the learned counsel for the revision petitioners. In the above said circumstances, the Trial Court has dismissed the petition mainly on the ground of delay, is not valid in law. From the above said discussion and both sides submissions, this Court is of the view that the order passed by the Trial Court is not valid in law and it is to be set aside and the impleading petition filed by the revision petitioners in I.A.No.887 of 2006 is to be allowed. 11. In the result, the civil revision petition is allowed and the dismissal order of the Principal Subordinate Court, Coimbatore passed in I.A.No.887 of 2006 is set aside. The Trial Court is directed to dispose of the main suit within a period of six months. No order as to costs.