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Karnataka High Court
VIJAYAM AGENCIES - Appellant
Versus
GENERAL MANAGER, BANGALORE TELEPHONES, BANGALORE - Respondent
Decided On : 02-19-91
W.P. : 10990 of 1984
Telephone Transfer - Partnership Firm - Rule 429(2)(c) of the Indian Telegraph Rules - Section 7 of the Indian Telegraph Act, 1885
Fact of the Case:
A partnership firm applied for a telephone service, and later, three partners retired. The telephone department issued an endorsement stating that the retirement of partners required the transfer of the telephone to the same firm. The petitioner sought a declaration that the retirement of partners did not involve a transfer of telephone and requested the quashing of the endorsement.
Finding of the Court:
The court found that the retirement of partners did not constitute a change in the Constitution of the partnership firm that would necessitate the transfer of the telephone. It held that there was no transfer of business or change in the name of the firm, and therefore, the Provisions of transfer of telephone did not apply.
Issues: The court considered whether the retirement of partners from a partnership firm constituted a change in the Constitution of the firm, triggering the Provisions of transfer of telephone.
Ratio Decidendi: The court determined that a mere reduction in the number of partners in a partnership firm did not amount to a change in the Constitution or a transfer of business. It emphasized that the Provisions of Rule 429(2)(c) required both a change in the name or Constitution of the firm and a transfer of telephone, which were not present in the case.
Final Decision: The court allowed the writ petition, quashed the endorsement, and prohibited the respondent from invoking the Provisions of transfer of the telephone against the petitioner.
( 1 ) HEARD the learned senior counsel for the petitioner and the learned central government standing counsel for the respondent.
( 2 ) BRIEFLY stated the following are the facts:a partnership firm carrying on business under the name and style of M/s. Vijayam agencies preferred an application for a telephone in the name of vijayam agencies on 15-5-1978 duly depositing the stipulated amount of Rs. 1,000/ -. Thereafter the firm requested for conversion of the requirement of telephone service to oyt (own your telephone) category by writing a letter dated 16-5-1978. For the said purpose an amount of Rs. 4,000/- was deposited by the firm on 16-5-1978. After the telephone was converted into oyt category having the number 41554, on 14-8-1978 the number was changed to 600493. '
( 3 ) THE partnership firm consisted of Six Partners viz. , C. V. Krishnamurthy, J. Geetha, K. Vijaya Kumar, Arun Kumar, K. Madhu sudhan and K. Venkatesh. On 1-8-1984 on behalf of the firm, intimation was sent to the respondent to the effect that one person by name J. Geetha had withdrawn from the partnership on 1-8-1984, firm also submitted form-a issued by the registrar of firms showing that in all 3 partners had retired and they are J. Geetha on 31-12-1983, K. Madhu Sudhan on 31-08-1982 and K. Venkatesh on 31-12-1983. In this situation, the telephone department on receipt of the above intimation by the firm regarding the retirement of 3 partners out of 6, issued an endorsement dated 6-6-1984 vide annexure-b. It is this endorsement which has caused grievance to the petitioner. The letter reads as follows: "sir (s)/madam, sub. : Transfer of phone No. 600493 now standing in the name of sri/m/s. Vijayam agencies to the name of sri/m/s. Vijayam agencies. Ref. : Your letter No. Va/78, dated 28-5- 1984. The question of transfer of the above telephone to the name of M/s. Vijayam agencies can be considered only after the production of all the relevant documents required in this connection. The detailed instructions in this regard are enclosed at Annexure-I to this letter. (1) an application for transfer of telephone is herewith sent which may please be duly filled in and returned. (2) consent letter (specimen copy of which is enclosed) executed by the transferor on a nonjudicial stamp paper of not less than Rs. 2-50 duly witnessed by two persons with their addressed and attested by a gazetted officer has to be furnished. (3) the transferee should furnish an undertaking (specimen copy of which is enclosed) on a non-judicial stamp paper of not less than Rs. 2-50 duly witnessed by two persons with their addresses and attested by a gazetted officer. The documents may please be forwarded to this office within thirty days of receipt of this letter so that we may examine the case and communicate our decision in this matter. Incidentally, we may also inform you that the use of the phone by any person other than the original hirer without being approved by this department is untenable and contravenes the departmental rules and your telephone is liable for disconnection on the grounds of misuse. Your kind co-operation in the matter will be very much appreciated. Yours faithfully, sd/-xxx5/6/ for general manager, telephones, Bangalore-9. Note: any change in Constitution in a partnership concern involves transfer of phone. In addition you are requested to submit form-a and partnership deeds from the date of installation of the phone till the date in order to process the transfer case. "
( 4 ) THE petitioner has sought for a declaration that a change in the Constitution of the partnership firm as a result of incoming and outgoing partners does not involve a transfer of telephone and also for a mandamus directing the respondent to forbear from invoking the Provisions from transfer of telephone against the petitioner and also for quashing the endorsement dated 6-6-1984 vide annexure-b.
( 5 ) THE point for consideration is whether the retirement of 3 partners out
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