Disposed

K.M Balan v. M/S. Maheswari Textiles

Kerala HC4 Aug 2016OP(C)/1225/2016

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition challenging the dismissal of impleadment applications by legal heirs in a cheque application. The Court held the Sub Court was justified in dismissing the application due to a pending suit regarding the validity of a will between legal heirs.

What did the court decide?

Court directed the first respondent to deposit the amount due to the deceased partner in the account of the pending suit O.S.No.117/2011.

K.M Balan Vs M/S. Maheswari Textiles — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938

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OP(C).No. 1225 of 2016 (O)

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IA.734/2015 & 972/2015 IN OS 56/2006 OF SUB COURT, PAYYANNUR

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PETITIONER(S)/PETITIONERS:

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1. K.M BALAN, AGED 60 YEARS,

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S/O.LATE KOLANKADA VEETTIL KUNHIRAMAN NAIR, RETIRED CIVIL SUPPLIES INSPECTOR, EZHOME AMSOM, ERIPURAM CHENGAL DESOM, KANNUR DISTRICT.

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2. K.M.SARALA, AGED 54 YEARS, D/O.LATE KOLANKADA VEETTIL KUNHIRAMAN NAIR, EZHOME AMSOM, ERIPURAM CHENGAL DESOM, KANNUR DISTRICT.

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3. K.M.GOVINDAN NAIR, AGED 62 YEARS, ADUTHILA,

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EZHOME AMSOM, ERIPURAM, CHENGAL DESOM, KANNUR DISTRICT.

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4. K.M.SATHEESAN,AGED 47 YEARS, ADUTHILA, EZHOME AMSOM, ERIPURAM CHENGAL DESOM, KANNUR DISTRICT.

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BY ADVS.SRI.O.V.MANIPRASAD SRI.JOSE ANTONY

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RESPONDENT(S)/RESPONDENTS:

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1. M/S.MAHESWARI TEXTILES COMPLEX REPRESENTED BY ITS MANAGING PARTNER PANNERI KRISHNAN, AGED 76 YEARS, S/O.CHEEYYAYIKKUTTI, MADAYI AMSOM, VENGARA DESOM, KANNUR DISTRICT-670305.

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2. PALLIVALAPPIL ABDUL SHUKKOOR, AGED 50 YEARS, S/O.MUHAMMADKUNHI, EZHOME AMSOM, ERIPURAM-CHENGAL DESOM, KANNUR DISTRICT-670631.

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3. PALLIVALAPPIL SALAHUDEEN, AGED 48 YEARS, S/O.ABDUL RAHIMAN, EZHOME AMSOM, ERIPURAM-CHENGAL DESOM, KANNUR DISTRICT-670631.

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R1 BY ADV. SRI.M.SASINDRAN R2&3 BY ADV. SRI.B.HARISH KUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1225 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF CHEQUE APPLICATION NO. 56/2015 P2 A TRUE COPY OF THE COUNTER STATEMENT DATED 03.07.2015 P3 A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF IMPLEADING PETITION FILED BY PETITIONERS 1 AND 2 AS IA.NO. 734/2015 P4 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF IMPLEADING PETITION FILED BY THE PETITIONERS 1 AND 2 AS IA.NO. 972/2015 P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT IN IA.NO. 734/2015 P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT IN IA.NO. 972/2015 P7 A TRUE COPY OF THE COMMON ORDER DATED 15.03.2016 IN IA.NO. 734/2015 AND 972/2015 IN CHEQUE APPLICATION NO. 56/2015 IN OS.NO. 56/2006 OF THE SUB ORDINATE JUDGE'S COURT, PAYYANUR P8 A TRUE COPY OF THE PARTNERSHIP DEED DATED 21.04.1976

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K. RAMAKRISHNAN, J.

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O.P.(C)No.1225 of 2016

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....................................................... Dated this the 4^th day of August, 2016.

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JUDGMENT

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This petition is filed by the petitioners challenging Ext.P7 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioners are the legal heirs of late Kolankanda Veetil Kunhiraman Nair, who is a partner of Maheswari Textile Complex, Vengara, Kannur district. He died and petitioners are some of the legal heirs of the said Kunhiraman Nair. There was a suit as OS.No.56/2006 filed by respondents 2 and 3 against the first respondent for specific performance of the contract of sale of the property belonging to the partnership firm. Since they committed default in executing the document, the court below passed a decree for specific performance. Accordingly, respondents 2 and 3 deposited the balance consideration in court and got the document executed through court. The first respondent firm filed a cheque application No.56/2015 in OS.No.56/2006 for withdrawal of the amount deposited alleging that the amount belongs to the partnership firm. The two legal heirs, who are petitioners 1 and 2 filed I.A.No.734/2015 and petitioners 3 and 4 filed IA.No.972/2015 for getting themselves impleaded in the cheque application as necessary parties. The learned Sub Judge after hearing both sides dismissed the application by Ext.P7

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O.P.(C)No.1225 of 2016 2

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common order stating that since it is a joint decree obtained, the amount cannot be disbursed individually and the application was filed by the firm through the managing partner and the settlement of accounts between them will have to be carried out by the parties separately and dismissed the application. Challenging the same, the present petition has been filed.

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Heard Sri. O.V. Maniprasad, learned counsel appearing for the petitioners, Sri. M. Saseendaran, learned counsel appearing for the first respondent and Sri. Hareesh kumar, learned counsel appearing for respondents 2 and 3.

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Learned counsel for the petitioners submitted that the first respondent is trying to disburse the amount to one of the legal heirs of deceased Kunhiraman Nair, who claimed the right on the basis of the will and in fact a suit is pending in respect of validity of the will as O.S.No.117/2011 before the Sub Court, Payyannur.

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On the other hand, learned counsel for the first respondent submitted that they have no intention to disburse the amount to any of the legal heirs unless their rights are settled in civil court and they have even prepared to deposit the share due to Kunhiraman Nair in that suit. Learned counsel for respondents 2 and 3 also supported their case.

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Admittedly the decree passed is a joint decree and the amount deposited by respondents 2 and 3 is the amount due to

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O.P.(C)No.1225 of 2016

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the partnership firm and individual partner is not entitled to claim the amount unless accounts between them are settled. Further, it is seen from the order of the court below that as per order in CRP.No.150/2015, this court has held that only firm can file an application for cheque to withdraw the amount in deposit and the individual partners cannot file an application for the amount due to them individually especially when it was a joint decree passed. So the court below was perfectly justified in coming to the conclusion that in view of the order of this court the present petitioners are not necessary parties to the proceedings and the amount if any withdrawn by the first respondent can only be deemed to have been withdrawn for and on behalf of the firm and no one can claim individual right in respect of the same. Under such circumstances, the court below was perfectly justified in dismissing the application filed by the petitioners and no interference is called for in respect of the same.

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Learned counsel for the first respondent submitted that except this amount, there is no other dispute between the parties and no other amount to be settled between the partners as well. He had also submitted that since there is dispute between the legal heirs and a civil suit is pending as OS.No.117/2011 between the legal heirs, they may not be able to disburse the amount to any one of the legal heirs alone but he is prepared to deposit the

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O.P.(C)No.1225 of 2016

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amount due to late Kunhiraman Nair either in the suit or in a fixed deposit in the name of all the legal representatives and in the event of a decree being passed, the succeeding party can withdraw the amount. So this court feels that in order to protect the interest of legal heirs of Kunhiraman Nair, a direction can be given to the first respondent to deposit the amount in Sub Court, Payyannur where O.S.No.117/2011 is pending in that suit and on deposit of the amount, the Sub Court, Payyannur is directed to deposit the amount in a nationalized bank for a particular period so that interest can be accrued on that amount and the amount can be disbursed to the person who is succeeding in the suit, OS.No.117/2011. The amount if any withdrawn by the first respondent, he is directed to deposit in the share of the deceased Kunhiraman Nair within a period of two weeks from the date of withdrawal of the amount in the account of OS.No.117/2011 pending before Sub Court, Payyannur.

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With the above observations and directions, this petition is disposed of.

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Sd/-

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K.M Balan v. M/S. Maheswari Textiles

Case brief

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K.M Balan v. M/S. Maheswari Textiles

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