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2016 Supreme(Chh) 247
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Sanjay K. Agrawal, J.
M/s Niranjan Sarkar, Contractor, Registered Partnership Firm - Applicant
Versus
South Eastern Coalfields Limited - Non-applicant
Civil Revision No.62 of 2015
Decided On : 07-10-2016
For the Applicant :Mr. V.R. Rao, Senior Advocate with Mr. Ashok Mishra, Advocate.
For the Non-applicant :Mr. H.B. Agrawal, Senior Advocate with Mrs. Meera Jaiswal, Advocate.
Headnote:
Indian Partnership Act, 1932 - Section 17(a) - Constitution of India, 1950 - Article 227 - Arbitration and Conciliation Act, 1996 - Section 34 - Relating to construction – Dishonor of - Rights and duties of partners - Senior Advocate appearing for the applicant/ decree holder, would submit that though the partnership originally existed on the date of award of the contract, but the same was subsequently reconstituted on the death of which took place on and by virtue of the provisions contained in Section 17(a) of the Indian Partnership Act, 1932, after a change occurs in the constitution of a firm, the mutual rights and duties of the partners in the reconstituted firm remain the same as they were immediately before the change - He would further submit that there is no dispute among the old/existing partners with regard to the amount which has already been paid to the applicant firm and no dispute has ever been raised before any court of law till this date with regard to the amount already deposited. Therefore, the order passed by the executing court is unnecessary and uncalled for and deserves to be set aside - Senior Advocate appearing for the non-applicant/judgment debtor, would submit that the worry of the SECL is only that amount be disbursed only to proper person in whose favour the award has been passed – Held, Parties had merely agreed to carry on the partnership business, the plaintiff taking the place of his deceased father and nothing being said about the shares - If there was no agreement between the parties and a new partnership was formed, the partnership would be governed by Section 13. But here we are dealing with a case where an established partnership business was continued on the same lines as before, after one of the partners had died and Section 17 has application …... there was no special contract between the parties when they decided to continue the old business, but a change had occurred in the constitution of the firm. In these circumstances the Act contemplates that the rights and duties of the partners in the reconstituted firm shall remain unchanged - Keeping in view the legal position, if the facts of the present case are examined, it is pellucid that the applicant partnership firm as existed on the date of award of the contract was reconstituted firstly secondly and by virtue of the provisions contained in Section 17(a) of Indian Partnership Act, after change in constitution of a firm mutual rights and duties of the partners in the reconstituted firm shall remain the same which were there immediately before the change in absence of special contract between the parties – Therefore change in the constitution of the applicant firm would not make any difference to their mutual rights and duties particularly in view of the provisions contained in Section 17(a) of the Indian Partnership Act as well as the fact that there is no dispute among the erstwhile partners and present partners with regard to amount deposited by the SECL - In circumstances, the order of the executing court holding that the amount be paid to the partnership firm as existed on the date of award of the contract, is unnecessary, as amount has already been awarded to the partnership firm Contractors-a partnership firm duly reconstituted, and amount has already been disbursed to the decree holder/applicant firm and the amount has already been paid upon order of the executing court to Contractors-applicant firm - Revision is allowed
1. A dispute arose between the applicant/decree holder-M/s. Niranjan Sarkar, Contractors, a partnership firm registered under the provisions of the Indian Partnership Act, 1932, and the non-applicant/judgment debtor-South Eastern Coalfields Limited, a Government company, pursuant to the award of contract to applicant M/s. Niranjan Sarkar, Contractors, a partnership firm registered in accordance with the provisions of the Indian Partnership Act, 1932, relating to construction of 750 Miners Quarters at Kurasia Colliery, Chirimiri. The matter was referred to the Arbitrator for adjudication as per the arbitration agreement and ultimately, the Arbitrator passed arbitration award on 2-12-2006 to the tune of Rs.1,12,71,024/-, feeling aggrieved against which the judgment debtor–South Eastern Coalfields Limited (for short 'the SECL') preferred an application under Section 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, Bilaspur for setting aside the award and the learned District Judge by order dated 3-12-2008 rejected the application for setting aside the award. Against the order passed by the learned District Judge, the SECL preferred Arbitration Appeal No.2/2009 which was also dismissed by a Division Bench of this Court on 21-6-2011. In the meanwhile, the entire decretal amount was deposited by the SECL before the executing court. On 5-7-2011, the applicant decree holder made an application for withdrawal of the decretal amount in which the SECL filed formal reply stating that the amount be disbursed to the competent person after satisfaction of the Court. By order dated 15-12-2011, an order was passed by the executing court directing that the amount be paid to M/s. Niranjan Sarkar, Contractors, by an account payee cheque and accordingly, the amount was paid to applicant M/s. Niranjan Sarkar, Contractors, through account payee cheque. Thereafter, it appears that an appeal was filed by the SECL against the order dated 15-12-2011 by which the executing court has directed that the amount be paid to M/s. Niranjan Sarkar, the applicant herein, through account payee cheque. The appeal was held to be not maintainable and, therefore, the SECL preferred a writ petition under Article 227 of the Constitution of India before this Court bearing W.P. (Art. 227) No.245/2013 which was disposed of without notice to the applicant herein by order dated 6-5-2013 holding that the amount should be disbursed to proper person after due enquiry. The executing court made an enquiry and held by the impugned order dated 10-3-2015 that the amount be paid to the partnership firm M/s. Niranjan Sarkar, Contractors, as existed on 3-8-1989 consisting of Smt. Roopa Sarkar, Ashish Sarkar, Deepak Sarkar and Smt. Nanda Rani Sarkar, against which this revision has been preferred.
2. Mr. V.R. Rao, learned Senior Advocate appearing for the applicant/ decree holder, would submit that though the partnership originally existed on the date of award of the contract, but the same was subsequently reconstituted on 1-4-2006 and also on 1-4-2009 on the death of Niranjan Sarkar which took place on 28-1-2009, and by virtue of the provisions contained in Section 17(a) of the Indian Partnership Act, 1932, after a change occurs in the constitution of a firm, the mutual rights and duties of the partners in the reconstituted firm remain the same as they were immediately before the change. He would further submit that there is no dispute among the old/existing partners with regard to the amount which has already been paid to the applicant firm and no dispute has ever been raised before any court of law till this date with regard to the decretal amount already deposited. Therefore, the order passed by the executing court is unnecessary and uncalled for and deserves to be set aside.
3. Mr. H.B. Agrawal, learned Senior Advocate appearing for the non-applicant/judgment debtor, would submit that the worry of the SECL is only that the amount be disbursed only to
