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2020 DIGILAW 893 (TS)

Somuri Ravali v. Somuri Purnachandra Rao

2020-12-29

G.SRI DEVI

body2020
ORDER : G. Sri Devi, J. 1. Both these petitions are being disposed of by this common order as they arise out of the same issue and the parties and subject matter are also same. 2. Tr. C.M.P. No. 93 of 2020 is filed by the petitioner seeking transfer of C.O.P. No. 29 of 2020, pending on the file of the XXIV Additional Chief Judge-cum-Commercial Court, City Civil Courts at Hyderabad, to the Court of the XIII Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy at L.B. Nagar-cum-Commercial Court, Ranga Reddy District or any other similar Court having competent jurisdiction to try the same. 3. Tr. C.M.P. No. 94 of 2020 is filed by the petitioners seeking transfer of C.O.P. No. 68 of 2020, pending on the file of the XXIV Additional Chief Judge-cum-Commercial Court, City Civil Courts at Hyderabad, to the Court of the XIII Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy at L.B. Nagar-cum-Commercial Court, Ranga Reddy District, or any other similar Court having competent jurisdiction to try the same. 4. Brief facts of the case are that the petitioner in Tr. CMP No. 93 of 2020 and the 1st petitioner in Tr. CMP No. 94 of 2020 is one and the same. Respondents 1 and 2 are her father-in-law and mother-in-law respectively and the 3rd respondent is their daughter. Petitioner and respondents 1 to 3 have established a Partnership Firm by name M/s. Reliance Developers (4th respondent in Tr. CMP No. 94 of 2020) for the purpose of development activities i.e., construction of roads and highways, bridges, buildings, commercial or residential and contract works of any kind from any Government, quasi Government, local bodies and to execute or get executed any works on sub-contract basis either by taking from or giving to other contractors and on related activities. It was further recited that all the partners may expand into any other business activity as the parties hereto may decide from time to time. Thereafter, the said terms were reduced into the Partnership Deed dated 27.10.2011 and that the 1st respondent was allowed to act as Managing Partner and respondents 2 and 3 are partners and that the petitioner was agreed to act as the working partner of the firm. Thereafter, the said terms were reduced into the Partnership Deed dated 27.10.2011 and that the 1st respondent was allowed to act as Managing Partner and respondents 2 and 3 are partners and that the petitioner was agreed to act as the working partner of the firm. As per the said Partnership Deed, the profit and losses of the firm remaining after the charge of interest and remuneration shall be shared by all of them as per Clause 9 of the said Partnership Deed and the petitioner is entitled to 25%; 1st respondent is entitled to 10%; 2nd respondent is entitled to 40% and the 3rd respondent is entitled to 25% respectively. Thereafter, with the active support of the father of the petitioner, they have undertaken 14 projects by way of development activity i.e., construction of apartment buildings as a developer under Development Agreements with the respective owners. It is further stated that during the year 2014, they intended to amend the Original Partnership Deed dated 27.10.2011 with regard to sharing pattern of all the partners as to the profits, losses and the remuneration and that the petitioner was accepted and declared as 65% sharer, whereas the respondents 1 and 2 at 5% each and the 3rd respondent with 25% and that the said Deed was accepted to come into effect from 01.10.2014. But so far as the other clauses are concerned, they remained as they were in the Original Partnership Deed dated 27.10.2011. Thereafter, the business activity having found inconvenient and insufficient in the previous place of business was shifted to Flat No. 401, Lovely Mansion, 6-3-1090/C/A, Somajiguda, Hyderabad, which belongs to her parents. It is further stated that all the projects were commenced and that out of them, 6 projects at Hyderabad were completed and the possession was also given to all the respective purchasers, though the 1st respondent obtained occupancy certificates for only two projects and failed to obtain for the remaining four projects. So far as the other projects at Hyderabad and Vijayawada were half completed, the further constructions could not be proceeded on account of the acts, actions and behaviour of the 1st respondent being the Managing Partner of the firm. So far as the other projects at Hyderabad and Vijayawada were half completed, the further constructions could not be proceeded on account of the acts, actions and behaviour of the 1st respondent being the Managing Partner of the firm. Thereafter, despite exchange of notices between the parties and when the 1st respondent did not mend his attitude and continued to act adversely to the interest of the business of his own benefit, the petitioner was compelled to issue legal notice dated 09.06.2020 for dissolution of the firm. Thereafter, the petitioner (Somuri Ravali) was compelled to file C.O.P. No. 29 of 2020 before the XXIV Additional Chief Judge-cum-Commercial Court, City Civil Courts at Hyderabad, wherein the respondents 1 to 3 filed caveat petition and succeeded in not passing interim orders. It was further stated that initially the said C.O.P. was not registered since the said Court took an objection as to the maintainability of the COP not only the reliefs sought against the petitioner, but also against her husband (2nd petitioner) as he is not a partner of the firm nor to the arbitral agreement. However, the learned Judge registered C.O.P. No. 68 of 2020 filed by the respondents herein against the petitioner and her husband (2nd petitioner), who is not a party to the Arbitration Agreement or Partnership Deed. It was further stated that the learned Judge while registering C.O.P. No. 29 of 2020 filed by the petitioner (Somuri Ravali), came to a different opinion at the time of registering C.O.P. No. 68 of 2020 filed by the respondents and, therefore, she seeks transfer of both the cases to XIII Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy at LB. Nagar-cum-Commercial Court, Rangareddy District to try the same. 5. Respondents 1, 2 and 3 filed a counter-affidavit, inter alia, contending that the petitioner herein has also filed Arbitration Application No. 46 of 2020 before this Court seeking appointment of arbitrator for the purpose of adjudication of disputes between the petitioner and the respondents herein. It is contended that the respondents 1 to 3 had filed C.O.P. No. 68 of 2020 before the Commercial Court, inter alia, seeking an order restraining the petitioner and her husband from representing the firm in any manner and to direct them to handover possession of the cars purchased by them out of the monies of the firm to the respondents. It is further contended that the petitioner and her husband have acted in connivance with each other for the purpose of defrauding the respondents and the firm. The petitioner's husband has resorted to several illegal activities such as wrongfully representing himself as an authorized representative of the firm and forging the signatures of the respondents 2 and 3 herein. It is further contended that Section 24 of the C.P.C., which deals with general power of transfer and withdrawal does not impose absolute power on the Courts to transfer matters and the same is a limited power, which can only be utilized for justifiable reasons. It is further contended that mere apprehension that justice will not be done in a given case does not suffice and, therefore, prayed to dismiss the transfer petitions. 6. Heard learned Counsel for the petitioners, learned Counsel for the respondents and perused the entire material available on record. 7. The point that arises for consideration is "whether C.O.P. Nos. 29 of 2020 and 68 of 2020 are to be withdrawn from the file of XXIV Additional Chief Judge-cum-Commercial Court, City Civil Courts at Hyderabad, and transfer the same to the Court of the XIII Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy at L.B. Nagar-cum-Commercial Court, Ranga Reddy District or any other similar Court having competent jurisdiction to try the same. 8. Section 24 of C.P.C. deals with the general power of transfer and withdrawal, which reads as follows: "24. 8. Section 24 of C.P.C. deals with the general power of transfer and withdrawal, which reads as follows: "24. General power of transfer and withdrawal: (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or order.] (4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it." 9. The few facts, which are relevant to decide the present controversy, are that there were disputes between the petitioner and the respondents herein with regard to the management and developmental activities of the firm i.e., M/s. Reliance Developers. The petitioner in Tr. The few facts, which are relevant to decide the present controversy, are that there were disputes between the petitioner and the respondents herein with regard to the management and developmental activities of the firm i.e., M/s. Reliance Developers. The petitioner in Tr. C.M.P. No. 93 of 2020 filed C.O.P. No. 29 of 2020 against her father-in-law, mother-in-law and sister-in-law seeking injunction restraining her father-in-law from executing any type of Deeds of conveyance of title or otherwise over the petition schedule properties in the name of third parties on behalf of M/s. Reliance Developers either individually by the father-in-law representing himself as the Managing Director of M/s. Reliance Developers or through an Agent representing M/s. Reliance Developers and from collecting any amounts under such conveyance deeds, or from executing any works over the petition schedule properties, pending disposal of the Arbitration Proceedings to be initiated by the petitioner against them before this Court, pursuant to the legal notice, dated 09.06.2020 got issued by her and also seeking interim injunction restraining her father-in-law from doing any type of activities in the name of M/s. Reliance Developers, either by execution of any works over Schedule 'A' to 'K' properties by opening any type of accounts with any bank/financial institution/NBPC or otherwise. Further, the respondents in Tr. C.M.P. No. 94 of 2020 filed C.O.P. No. 68 of 2020 against the petitioner in Tr. C.M.P. No. 93 of 2020 and her husband seeking the following reliefs: i) Pass an order restraining the petitioners in Tr. C.M.P. No. 94 of 2020 from representing the firm M/s. Reliance Developers in any manner including for execution of documents/agreements whether registered or un-registered for the purpose of dealing, alienating, creating third party rights including leasing of the Petition Schedule 'A' properties; (ii) Pass an order restraining the petitioners in Tr. C.M.P. No. 94 of 2020 from representing the firm M/s. Reliance Developers in any manner including for execution of documents/agreements whether registered or un-registered for the purpose of dealing, alienating, creating third party rights including leasing of the Petition Schedule 'B' properties; (iii) Pass an order directing the petitioners in Tr. C.M.P. No. 94 of 2020 to handover the possession of the Petition Schedule 'B' properties to the 1st respondent herein; (iv) Pass an order restraining the 1st petitioner in Tr. C.M.P. No. 94 of 2020 to handover the possession of the Petition Schedule 'B' properties to the 1st respondent herein; (iv) Pass an order restraining the 1st petitioner in Tr. C.M.P. No. 94 of 2020 from operating the Petition Schedule Bank Accounts and consequently permit only the 1st respondent herein to operate the said Petition Schedule Bank Accounts of the Firm M/s. Reliance Developers. (v) Pass an order directing the petitioners in Tr. C.M.P. No. 94 of 2020 to furnish all accounts, information, GST accounts and payment details, Income Tax Returns, documents, bank statements, information regarding bank accounts of the Firm, statement of accounts, cheque books, computers and hard disks containing all the information and documents, payment vouchers, bills, invoices, purchase orders, etc., pertaining to the firm M/s. Reliance Developers to the 1st respondent herein. (vi) Pass ad-interim ex parte order in terms of the above prayer. (vii) Award costs of the petition; and (viii) Pass such other further order/orders as the Court may deem fit and proper in the facts and circumstances of the case. 10. Admittedly, both the C.O.P.s are pending in the same Court i.e., XXIV Additional Chief Judge-cum-Commercial Court, City Civil Courts, Hyderabad. The grievance of the petitioners herein is that the learned Judge while registering C.O.P. No. 29 of 2020 filed by the petitioner (Somuri Ravali), came to a different opinion at the time of registering C.O.P. No. 68 of 2020 filed by the respondents and, therefore, she seeks transfer of both the cases to XIII Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy at LB. Nagar-cum-Commercial Court, Rangareddy District to try the same. 11. The Apex Court laid down the following general principles to exercise jurisdiction under Section 24 of C.P.C. to withdraw a pending suit and transfer to any other Court in Kulwinder Kaur alias Kulwinder Gurcharan Singh Vs. Kandi Friends Educational Trust and others (2008) 3 SCC 659 :- "Section 24 of the Code of Civil Procedure confers comprehensive power on the Court to transfer suits, appeals or other proceedings "at any stage" either on an application by any party or suo motu. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. It is true that normally while making an order of transfer, the Court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the Court and the circumstances which weighed in taking the action. Powers under Section 24 of the Code of Civil Procedure cannot be exercised ipse dixit in the manner in which it has been done in the present case." 12. The Apex Court further held that the following facts have to be taken into consideration in a situation in which it is the duty of Court to transfer the case: "(i) balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; (ii) convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; (iii) issues raised by the parties; (iv) reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; (v) important questions of law involved or a considerable section of public interested in the litigation; (vi) "interest of justice" demanding for transfer of case, etc. 13. In Usmangani Adambhai Vahora Vs. State of Gujarat and another, S.L.P. (Criminal) Nos. 9374-9375 of 2015, the Apex Court considered the ground invented by parties that they would not get justice in the Court for seeking transfer of pending criminal case before one Court and transfer the same to other Court exercising power under Section 406 of the Code of Criminal Procedure (for short, 'Cr.P.C.'). The law is one and the same for withdrawal and transfer based on apprehension that the party would not get justice in the Court. The Apex Court in the above judgment adverted to the principles laid down in Gurcharan 14. Dass Chadha Vs. State of Rajasthan AIR 1966 SC 1418 , wherein it was held as follows: "The law with regard to transfer of cases is well-settled. The Apex Court in the above judgment adverted to the principles laid down in Gurcharan 14. Dass Chadha Vs. State of Rajasthan AIR 1966 SC 1418 , wherein it was held as follows: "The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. Petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows the circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension, the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension." 15. Similarly, in Abdul Nazar Madani Vs. Stae of Tamil Nadu (2000) 6 SCC 204 , in para No. 7, the Apex Court discussed the ground of apprehension that party will not get justice and concluded that the apprehension that he will not get fair justice is absolutely mercurial and cannot be said to be reasonable. Therefore, in the absence of any material to substantiate the ground that he would not get justice, the Court cannot exercise power under Section 24 of C.P.C. to withdraw and transfer any matter pending on the file of one Court to other. 16. In the instant case, there are no allegations against the Presiding Officer and the only apprehension of the petitioner is that the learned Judge has come to a different opinion while registering the C.O.P. filed by the respondents herein. The petitioner is entitled to a transfer if she shows the circumstances from which it can be inferred that she entertains an apprehension and that it is reasonable in the circumstances alleged. The petitioner is entitled to a transfer if she shows the circumstances from which it can be inferred that she entertains an apprehension and that it is reasonable in the circumstances alleged. There is no material available on record to substantiate the ground that she would not get justice and as such this Court cannot exercise the powers under Section 24 of C.P.C. to withdraw and transfer the case. The mere apprehension that justice will not be done in a given case does not suffice and that there are no valid grounds to transfer the C.O.P. Nos. 29 of 2020 and 68 of 2020 to the Court of XIII-Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy at L.B. Nagar-cum-Commercial Court, Ranga Reddy District and as such both the Transfer C.M.P.s are liable to be dismissed. 17. For the aforementioned reasons and having regard to the principles laid down by the Apex Court in the judgments supra, both the Transfer Civil Miscellaneous Petitions are dismissed. As a sequel thereto, Miscellaneous Petitions, if any, pending, shall stand dismissed. There shall be no order as to costs.