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Karnataka High Court
S.K.VIJAYAKUMAR - Appellant
Versus
S.K.RAVIKUMAR - Respondent
Decided On : 10-17-06
Miscellaneous First Appeal No. 2767 of 2001 (AA) connected with Miscellaneous First Appeal Nos. 2768 and 2769 of 2001 and Civil Revision Petition No. 2176 of 2001.
Transfer of Property Act, 1882 -Section 53 -Applicability -Dissolution of firm -Necessary steps taken by a partner -Failure of other partners to render accounts and distribute property -Sale of property by other partners -Provision attracts.
Cases Referred:(2004) 3 SCC 155; 2000(4) ICC (SC) 271; JT 2000(2) SC 596; JT 1998(6) SC 289; AIR 1970 SC 833; AIR 1964 SC 1882; AIR 1951 MAD. 683; (1999) 2 SCC 479; 1998(2) KLJ 383; AIR 2000 Allahabad 9.
Partnership Act, 1932 -Applicability of Section 53 of T.P. Act -Dissolution of firm -Necessary steps taken by a partner -Failure of other partners to render accounts and distribute property -Sale of property by other partners. Held, Section 53 is applicable. [V. Gopala Gowda and C.R. Kumara Swamy, JJ.]
Cases Referred:(2004) 3 SCC 155; 2000(4) ICC (SC) 271; JT 2000(2) SC 596; JT 1998(6) SC 289; AIR 1970 SC 833; AIR 1964 SC 1882; AIR 1951 MAD. 683; (1999) 2 SCC 479; 1998(2) KLJ 383; AIR 2000 Allahabad 9.
Arbitration and Conciliation Act,1996 -Section 9 -Petition under -Filing of -Notice is not a condition precedent therefor in view of Section 21 of the Act.
Arbitration and Conciliation Act,1996 -Section 9 -Petition for injunction, appointment of Commissioner -Maintainability. [V. Gopala Gowda and C. R. Kumara Swamy, JJ.] In the petition one of the item in respect of the immovable property of the Theatre is one of the schedule items in respect of which interim order of temprorary injunction and appointment of receiver is sought for claiming that it is the property of the partnership firm. There is no specific averment regarding denial. In the absence of denial though neither Principal District Judge nor the Court is required to receord a finding whether the property belongs to "S" Enterp[rises is a matter for adjudication of the arbitrators which are required to be appointed by initiating proceedings under the provisions of Section 11. For the limited purpose in the absence of denial and on the basis of the recitals referred in the sale deed dated 14/2/2001, 20/2/2001 it is prima facie sufficient to hold having regard to the undisputed fact that Rs. 23,000/- lakkhs consideration amount though there was a civil dispute between the vendors 1 and 2 against the respondents 1 and 6 from 1980 which suit was dismissed for default, Misc. Case No. 10/93 was filed in which case also, the matter was settled by receiving certain consideration amount by the vendors 1 and 2 which is not commensurate with the consideration amount, It is the property of the Srinivas Enterprises and apprehension of the appellant that they are trying to alienate the Gopal Theatre property. Which is one of the petition schedule propeties therefore the petition is rightly filed by the appellant. That application is opposed by filing objections by the respondents No.1-6. the same came to be disposed of during the pendency of the petion registered on 20/2/2001 as we have already held Section 52 of the Traqnsfer of Property Act is attracted to the facts of thius case. Therefore, this is a fit case for allowing a petition u/s 9 of the Arbitration and Conciliation Act and also interlocutory applications. I A No. 2 restraining the 7th respondent herein who got impleaded in these proceedings is allowed directing him not to crate either chrge or further alienate the schedule property of gopal theatre at Doddaballapur town until the arbitration proceedings between the parties in respect of the property is determined. I A No.1 also requird to be allowed. The theatre has been sold as a running concern in favour of respondent No. 7. the movables mentioned though details are not there. Having regard to the conduct of the respondents 1 to 6 when the notice issued on 5/2/2001 to them was not claimed, subsequently the property was sold by a sale deed referred to supra in favour of respondent No.7, therefore, the case warrants appointments of Commissioner to inspect the Gopal Theatre and prepare an inventory regarding the movables which are in the theatre and submit a report to this Court and after appointment of arbitrator, the parties can seek to forward the said report submitted by the Commissioner to the arbitrators.
Partnership Act, 1932 -Applicability of Section 53 of T.P. Act -Dissolution of firm -Necessary steps taken by a partner -Failure of other partners to render accounts and distribute property -Sale of property by other partners. Held, Section 53 is applicable.
Cases Referred:(2004) 3 SCC 155; 2000(4) ICC (SC) 271; JT 2000(2) SC 596; JT 1998(6) SC 289; AIR 1970 SC 833; AIR 1964 SC 1882; AIR 1951 MAD. 683; (1999) 2 SCC 479; 1998(2) KLJ 383; AIR 2000 Allahabad 9.
Transfer of Property Act, 1882 -Section 53 -Applicability -Dissolution of firm -Necessary steps taken by a partner -Failure of other partners to render accounts and distribute property -Sale of property by other partners -Provision attracts. [V. Gopala Gowda and C.R. Kumara Swamy, JJ.]
Cases Referred:(2004) 3 SCC 155; 2000(4) ICC (SC) 271; JT 2000(2) SC 596; JT 1998(6) SC 289; AIR 1970 SC 833; AIR 1964 SC 1882; AIR 1951 MAD. 683; (1999) 2 SCC 479; 1998(2) KLJ 383; AIR 2000 Allahabad 9.
These three miscellaneous first appeals and the civil revision petition are filed against the order dated 12-3-2001 passed by the District Court, Bangalore Rural District, in Arbitration Case No.1 of 2001. The District Court dismissed the petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') and the interlocutory applications. The applications are, LA. No. I filed under Section 9(ii)(d) of the Act read with Order 39, Rules 1 and 2 of the CPC for injunction, LA. No. II under Order 26, Rules 9 and 11 of the CPC for appointment of Commissioner, LA. No. III under Order 40, Rule 1of the CPC for appointment of receiver and LA. No. IV under Section 151 of the CPC to dismiss the petition as not maintainable.
2. The brief facts leading to these matters are the appellant in the appeals and petitioner in the revision petition entered into a partnership venture under the name and style of M/s. Srinivasa Enterprises along with respondents 1 to 6. The partnership firm was running Gopal Theatre situated in Doddaballapur, which is the schedule property in the petition. The appellant alleges that respondents 1 and 4 were whole time Managing Partners of the firm but they did not render accounts of the firm and the appellant was kept in dark regarding the affairs of the firm inspite of repeated requests, reminders and demands. It is further alleged that the meetings of the firm were also not convened. In those circumstances, the appellant claims that he dissolved the partnership by issuing notice dated 5-2-2001 and the same was informed to respondents 1 to 6 and called upon them to render accounts and to distribute the assets of the firm. Xerox copies of the notice unserved covers are produced and the postal endorsement thereon is "not claimed". The dissolution of the firm was also notified in Udayavani newspaper dated 8-2-2001. The appellant also invoked the arbitration clause in the partnership deed and proposed to appoint one Mr. Premchand Gupta, an Advocate as the sole Arbitrator for settlement of the dispute. It is alleged that since respondents 1 to 6 made attempts to manipulate the accounts and to dispose of the properties of the partnership firm, the appellant filed the petition on 7-2-2001 in the District Court and the LA. Nos. I to III, the details of which are narrated in paragraph 1 above (LA. No. IV was filed by respondents 1 to 3 and 6). It is further alleged that despite knowledge of dissolution of the partnership firm, respondents 1 to 6 sold the schedule property (Gopal Theatre) to the 7th respondent herein. Therefore, relying upon the decision in Nagubai Ammal and Others v B. Shama Rao and Others!, it is contended that the alienation of the schedule property during the pendency of the petition is bad in law and Section 52 of the Transfer of Property Act, 1882, is attracted.
3. Respsondents 1 to 6 entered appearance and filed objections to I.A. Nos. I to III. They filed I.A. No. N contending that the petition is not maintainable and liable to be dismissed in view of Section 69(3) of the Partnership Act, 1932. Consequently, they contended that I.A. Nos. I to III are liable to be rejected. Reliance is placed upon the decision in Jagdish Chandra Gupta v M /s. Kajaria Traders (India) Limitedl•
4. The learned Counsel for the appellant made submission with reference to the sale deed document dated 14-2-2001 to show that the suit schedule immovable property of Gopal Theatre is the property of Srinivasa Enterprises and further contended relying upon the decision of the Apex Court in the case of Ashok Traders and Another v Gurumukh Das Saluja and Others2, that the bar indicated in Section 69 of the Partnership Act does not affect the maintainability of an application under Section 9 of the Act and also placed reliance upon the decision of the Supreme Court in Kamal Pushpa Enterprises v D.R. Construction Company3, which is referred in Ashok Traders case. The Apex Court
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