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High Court Of Calcutta
A. M. BHATTACHARJEE, N. K. BATABYAL
BEJOY KUMAR BOSE - Appellant
Versus
TRAFFIC MANAGER, CALCUTTA PORT TRUST - Respondent
F. M. A. T. 3164 Of 1992
Decided On : 08/30/1993
PARTNERSHIP - RENEWAL OF LICENCE - SUPPRESSION OF MATERIAL FACTS - MANDAMUS - JURISDICTION - WRIT COURT CANNOT USURP FUNCTIONS OF COMPETENT CIVIL COURT.
Fact of the Case:
The appellant, claiming to be a partner in a registered partnership firm, sought a writ of mandamus commanding the respondents to grant or renew a license under a bye-law framed by the Calcutta Port Trust. The appellant alleged that he had acquired a 25% share in the partnership through an irrevocable power of attorney and a letter of admission from one of the original partners, and that he had filed an intimation of the change in the constitution of the firm with the Registrar of Firms. However, the respondents refused to grant or renew the license, citing pending litigation between the appellant and the other partners over the alleged change in constitution.
Finding of the Court:
The court found that there were two suits pending before the City Civil Court, one filed by the appellant and one by one of the original partners, in which the basic facts on which the appellant's claim to a share in the partnership were at the center of a raging controversy. The court also found that the appellant had failed to disclose the existence of these suits in his writ petition, which amounted to suppression of material facts.
Issues: 1. Whether the appellant had acquired a 25% share in the partnership through an irrevocable power of attorney and a letter of admission from one of the original partners. 2. Whether the appellant had suppressed material facts by failing to disclose the existence of pending litigation over the alleged change in constitution of the firm.
Ratio Decidendi: 1. The court held that the question of whether the appellant had acquired a share in the partnership was a disputed question of fact that could not be decided in writ proceedings. The court noted that the Indian Partnership Act provides for the registration of firms and the filing of notices of changes in the constitution of a firm, but that these provisions do not override the lawful rights of others. 2. The court held that the appellant's failure to disclose the existence of pending litigation over the alleged change in constitution of the firm amounted to suppression of material facts, which disentitled him to the equitable relief of mandamus.
Final Decision: The court dismissed the appeal, upholding the lower court's decision to dismiss the writ petition. The court held that the writ court could not usurp the functions of the competent civil court in deciding the disputed question of fact regarding the appellant's share in the partnership.
( 1 ) BEING aggrieved by the judgment and order dated 30th July, 1992 passed by the learned Trial Judge in Civil Order No. 9333 (W) of 1991, the writ petitioners have preferred this appeal against the order of dismissal of the writ petition. In the original writ application, the appellants have prayed for issuance of a writ of Mandamus commanding the respondent Nos. 1, 2, 3 and 4 to grant and/or to renew the licence under Bye-Law No. 55a of the Bye-laws framed by the Calcutta Port Trust in favour of the appellant No. 1 who claims to be a registered Partner of the duly registered Partnership Firm, the appellant No. 2 and also to his Sircars, Clerks, Servants and Agents.
( 2 ) THERE was originally a Partnership business started under the name and style of Messrs. B. B. Bose and Sons to carry out business of clearing and forwarding agents for the Customs Authorities in Calcutta in the Jetty of Calcutta Port Trust between Shri Ganesh Chandra Bose (the respondent No. 7 in the appeal) with 75% share and Shri Dinendra Kumar Bose (the respondent No. 8 in the appeal) with 25% share. The Deed of Partnership was duly registered. The appellant, Shri Bijoy Kumar Bose is a son by the first wife of respondent No. 7 and Shri Sanjoy Kumar Bose, the respondent No. 9 in the appeal is another son of respondent No. 7 by his third wife. In the year 1984, due to old age Shri Ganesh Chandra Bose (the respondent No. 7) became infirm and fell seriously ill and is still lying bed-ridden and paralysed. Both the Partners of the said firm executed and registered on 19. 11. 84 an irrevocable Power-of-Attorney in favour of the appellant No. 1. Subsequently on 24-4-1989, Shri Ganesh Chandra Bose (the respondent No. 7) duly admitted in his letter dated 24th April, 1989 addressed to the Collector of Customs, Calcutta (the respondent No. 5 in this appeal) that he had relinquished his 25% share or interest out of his 75% share in the Partnership in favour of the appellant, Shri Bijoy Kumar Bose and another 25%, share in favour of his another son, Shri Sanjoy Kumar Bose (the respondent No. 9 ). According to the appellants, when any Partner relinquishes his share or any part or portion of his share in favour of a new Partner, such a relinquishment need not be registered under the Indian Partnership Act. Accordingly, with effect from 24th of April, 1989, on the basis of the admission of Shri Ganesh Chandra Bose, respondent No. 7, the appellant has become a new Partner in the Partnership Firm with 25% share therein and the Power of Attorney executed and registered in 1984 has merged with the power of the appellant as new Partner. The grievance of the appellant is that though he has applied for renewal of licence under Bye-law No. 55a of the Bye-laws framed by Calcutta Port Trust in favour of the appellant as a Partner of the Firm appellant No. 2 and also to his Sircar, Clerks, Servants or Agents in terms of the said Bye-law of the Calcutta Port Trust read with Bye-law No. 3 thereof, no action has been taken thereon. Hence, the appellants have prayed for the issuance of a writ of Mandamus commanding the respondent Nos. 1, 2, 3 and 4 to grant or renew the licence under Byelaw No. 55a of the Bye-laws framed by the Calcutta Port Trust in favour of the appellant No. 1 and a writ or a writ in the nature of Prohibition prohibiting the respondent Nos. 1 to 4 and their agents, servants etc. and the respondent Nos. 5 and 6 from preventing the appellant and his Sircars, Clerks, Servants or Agents etc. to work and function in the Jetty and wharves of Calcutta Port and other reliefs.
( 3 ) THE writ application has been hotly contested in the Court below.
( 4 ) IN the affidavit-in-opposition on behalf of the respondent No. 8 it has been stated that there was really a Partnership between Ganesh Chandra Bose and Dinendra Kumar Bose as stated in the writ petition. It is also not disputed that Ganesh Chandra Bose, respondent No. 7 became ill and paralytic and un
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