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2014 Supreme(All) 189

ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : S.S. CHAUHAN, J.
M/s. DWARIKA PRASAD AGARWAL & BROTHERS AND ANOTHER ....Petitioners
Versus
REGISTRAR, FIRMS, SOCIETIES AND CHITS, U.P. AND OTHERS ....Opposite parties
(Writ Petition No. 2996 (M/S) of 2004, decided on 21st January, 2014)

Headnote:(Indian) Partnership Act, 1932—Sections 43, 32, 72, 64, 18, 19, 22, 25, 32, 63 and 59—U.P. (Indian) Partnership Rules, 1933—Rules 7, 8—Hindu Marriage Act, 1955—Sections 11, 17, 5, 16—Allahabad High Court Rules, 1952—Chapter 22, Rule 7—Code of Civil Procedure, 1908—Order 39 Rules 1 and 2—Registration Act, 1908—Section 17(1)—Dissolution of firm—Reconstitution—Retirement of partner—Induction of new partners—Consent of other partners—Non-compliance of procedure contemplated under Section 72—Contention that notice to dissolve firm shall be deemed to be taken notice for retirement—Legal status of second wife—In absence of evidence of marriage, marriage as claimed would be nullity—As per partnership-deed second wife not entitled, only legal heirs will be inducted as partners—As per partition deed upon death of any partner, firm shall not be dissolved ‘ipso facto’—If partnership is at Will, then a notice of his intention to retire is to be given to all remaining partners—It is a condition precedent—In absence of written consent of other partner, notice for dissolution will be treated as notice of retirement—That partner shall be deemed to have retired from firm—Further, said notice never given to other partners—Even, procedure for retirement never given effect—Ex parte presumption drawn that other partners stood retired—Not legally sustainable that too with a view to create new partnership with certain new partner—Induction illegal, in respect of subsequent partnership-deed—Which is an invalid deed—Once falsification of deed established—No reconstitution of firm accepted—Neither consent nor signature of all partners obtained—Under Section 72 only one post of requirement followed—By giving notice to registrar under Section 63—Requirement of publication in official gazette, mandatory requirement, not followed—Entire exercise invalid—Even, no publication in one vernacular newspaper—Present case is partnership at Will—Then notice was required to be given by retiring partner to all other partners—In subsequent deed registered office of firm changed—Registrar empowered to rectify mistake, conduct inquires and investigation—Discretionary/quasi-judicial power—Firm in question not registered as “Are not member of HUF—Character of firm cannot be changed—Since transfer of interest in firm is absolute—It is for assignee to receive his interest—Hence, induction and retirement invalid. [Paras 4, 20, 22, 25, 27, 28, 30, 32, 35, 42, 51 and 55]

       Result; Petition Dismissed.

JUDGMENT

Hon’ble S.S. Chauhan, J.—The petitioners through this writ petition have challenged the orders dated 8.9.2003, 3.12.2003 and 7.1.2004, contained in Annexure Nos. 1 to 3 to the writ petition.

The facts giving rise to the present petition, are that firm namely, M/s. Dwarika Prasad Agarwal and Bothers (for short’ the firm’) was constituted consisting of four members, namely, Dwarika Prasad Agarwal, Bishambhar Dayal, Mahesh Prasad Agarwal and Ramesh Chandra Agarwal on 10.4.1972 and the aforesaid firm was registered with the Assistant Registrar, Firms, Societies and Chits, Jhansi having its registered office at 28 Rani Mahal, Jhansi on 15.11.1976. The said firm was also registered in Form-I under the Indian Partnership Act (for short ‘ the Act’) and continued to run its business. The firm itself was not doing any business, but in fact the partners of the firm in their individual capacity were running separate businesses regarding publication of newspaper from different cities owned by different entities in publishing the newspaper in the name and style “Dainik Bhaskar.” These firms were known as Bhaskar Publication and Allied Industries, Pvt. Ltd. at Gwalior managed by Sri Ramesh Chandra Agarwal with majority shares; Bhaskar Graphics, Pvt. Ltd. at Indore managed by Sri Ramesh Chandra Agarwal with majority shares; Writers and Publishers Pvt. Ltd. at Bhopal managed by Sri Ramesh Chandra Agarwal with majority shares. Sri Bhishambhar Dayal Agarwal was publishing the newspaper at Jabalpur, whereas Sri Sanjay Agarwal was publishing the newspaper at Jhansi. It appears that there was some misunderstanding and bickering between the partners, so on 25.11.1987 Mahesh Prasad Agarwal gave a notice under Section 43 of the Act to dissolve the firm. The said notice was replied by Bishambhar Dayal Agarwal by means of letter dated 11.12.1987 stating therein that his notice to dissolve the firm shall be taken as a notice for retirement and he shall be deemed to have retired from the said date. But no reply was given by Mahesh Prasad Agarwal to the aforesaid notice of the Bishambhar Dayal Agarwal. On 28.11.1987 Ramesh Chandra Agarwal filed Civil Suit No. 74A of 1987 in the Court of Additional District Judge-I, Bhopal as Managing Director of M/s. Writers and Publishers Limited against Dwarika Prasad Agarwal and Bishambhar Dayal Agarwal for declaration that plaintiff is the sole owner of business and goodwill of printing and publishing of Dainik Bhaskar from Bhopal and for perpetual injunction restraining the defendants from publishing the newspaper from Jabalpur or any other place. On 30.11.1987 another Civil Suit No. 75A of 1987 was filed by Ramesh Chandra Agarwal in the Court of Additional District Judge-I, Bhopal against Dwarika Prasad Agarwal, Mahesh Prasad Agarwal and Bishambhar Dayal Agarwal for rendition of accounts and for declaration that the firm stood dissolved in the year 1985 or be declared that it stood dissolved w.e.f. 25.11.1987 and for appointment of receiver. On 6.2.1988 another Suit No. 22A of 1988 was filed by Bishabhar Dayal Agarwal in the Court of Additional District Judge-II, Raipur seeking declaration that title “Dainik Bhaskar” belonged to Firm Dwarika Prasad Agarwal & Bros. in which an order was passed on 15.2.1988 restraining the defendants therein, including Ramesh Chandra Agarwal and Writers & Publishers Limited, from publishing Dainik Bhaskar from Raipur. On 28.3.1988 Suit No. 57A of 1988 was filed by Bishambhar Dayal Agarwal in the Court of Additional District Judge-II, Bhopal seeking declaration that agreement dated 13.3.1985 was null and void. Applications moved under Order XXXIX, Rule-1 and 2 CPC by the Writers & Publishers Limited and Ramesh Chandra Agarwal in both the suits i.e. 74A of 1987 and 75A of 1987 were rejected by the Civil Court on 24.11.1988. In January, 1990, Bishambhar Dayal Agarwal wrote a letter to Dwarika Prasad Agarwal expressing his desire to retire from the firm in case he wanted to induct



















































































































































































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