Disposed

V. H. Jaffer, v. the Registrar

Kerala HC13 Oct 2022WP(C)/23480/2022

Case brief

AI extract

What is this about?

The court addressed writ petitions arising from disputes among partners of a construction firm engaged with a University. It held that payments due to the firm should be credited to the partnership account, with the bank deciding subsequent appropriation, and closed the writs without prejudice to the parties' rights in a separate forum.

What did the court decide?

Writ petitions closed without prejudice to parties' rights. Court directed that payment be credited to the partnership account.

V. H. Jaffer, Vs the Registrar — Kerala HC (2022) — LawSathi Research

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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 V.G.ARUN

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THURSDAY, THE 13^TH DAY OF OCTOBER 2022 / 21ST ASWINA, 1944

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WP(C) NO. 21525 OF 2022

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PETITIONER:

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HASSAN N.S AGED 66 YEARS S/O SAID MUHAMMED, MANAGING PARTNER, M/S. ROYAL CONSTRUCTIONS, BUILDING NO. 158 SHAHEEN MANZIL, PALAPASSERY, CHENGAMAND P.O., ERNAKULAM, PIN - 683578

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BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI T.I.SAFDARSHAH M.MAHIN HAMZA SAFIYA AKBAR FAIZEL K.

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RESPONDENTS:

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1 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY KALADY P.O, ERNAKULAM , KERALA,REPRESENTED BY ITS REGISTRAR, PIN - 683574

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2 JAFFER V.H AGE NOT KNOWN TO THE PETITIONER, S/O HAMEED, VADAKKEKUZHIKKADAVIL HOUSE ,CHOWARA P.O, ALUVA, ERNAKULAM, PIN - 683578

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3 NINIL ALIAS AGE NOT KNOWN TO THE PETITIONER, S/O ALIAS MATHAI, MOOLAN HOUSE, PULIYANAM P.O, ANGAMALY, ERNAKULAM, PIN - 683572

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4 SHAHEEN HASSAN AGED 37 YEARS S/O HASSAN N.S, NEDUVILAPARAMBIL HOUSE, PALAPRASSERY, CHENGAMNADU P.O, ALUVA, ERNAKULAM, PIN - 683578

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W.P.(C)s. 21525 & 23480/2022.

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2 5 THE FEDERAL BANK THOTTAKKATTUKARA BRANCH, PARACKAL TOWERS, PARUR JUNCTION, KERALA, REPRESENTED BY ITS BRANCH MANAGER, PIN - 683102 ADDL.R6 TREASURY OFFICER ANGAMALY SUB TREASURY, ANGAMALY, ERNAKULAM ADDL. R6 IS IMPLEADED AS PER ORDER DTD. 13.10.2022 IN I.A. NO. 2 OF 2022 BY ADVS. SHRI.DINESH MATHEW J.MURICKEN, SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY() V.N.SANKARJEE MOHAN JACOB GEORGE P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD KEERTHI B. CHANDRAN C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S. M.SUSEELA VIJAYAN PILLAI P.K. GP SRI.RIYAL DEVASSY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).23480/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)s. 21525 & 23480/2022.

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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 V.G.ARUN

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THURSDAY, THE 13^TH DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 WP(C) NO. 23480 OF 2022

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PETITIONER/S:

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1 V. H. JAFFER, AGED 50 YEARS S/O. SAID MUHAMMED, VADAKKEKUZHIKADAVIL HOUSE, CHOWARA P.O, CHOWARA, ALUVA TALUK, ERNAKULAM DISTRICT, PIN 683 571. 2 NINIL ALIAS, AGED 44 YEARS S/O. M.M. ALIAS, MOOLAN HOUSE, PULIYANAM P.O, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN 583 572.

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BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S.

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RESPONDENT/S:

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1 THE REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, KALADY P.O, ALUVA TALUK, ERNAKULAM DISTRICT, PIN 683 574.

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2 THE REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANKRIT, KALADY, KALADY P.O, ALUVA TALUK, ERNAKULAM DISTRICT, PIN 683

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W.P.(C)s. 21525 & 23480/2022.

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3 THE TREASURY OFFICER, SUB TREASURY , ALUVA, ERNAKULAM DITRICT, PIN 683 101.

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4 N.S. HASSAN, AGED 66 YEARS S/O. SAID MUHAMMED, NADUVILAPARAMBIL HOUSE, PALAPRASSERY, CHENGAMANADU P.O, ALUVA ERNAKULAM DISTRICT, PIN 683 578.

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5 SHAHEEN HASSAN, AGED 36 YEARS S/O. N.S. HASSAN, NADUVILAPARAMBIL HOUSE, PALAPRASSERY, CHENGAMANADU P.O, ALUVA, ERNAKULAM DISTRICT, PIN 683 578.

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BY ADV SHRI.DINESH MATHEW J.MURICKEN, SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY

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GP SRI.RIYAL DEVASSY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).21525/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)s. 21525 & 23480/2022.

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JUDGMENT

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Dated this the 13^th day of October, 2022

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The dispute among the partners of a firm engaged in construction activities, has led to the filing of these writ petitions.

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The essential facts are as under. The documents are referred to as described in W.P.(C) No. 21525 of 2022;

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The partnership firm, M/s. Royal Constructions, had been entrusted with the construction of Fine Arts Complex Phase-II of Sree Sankaracharya University, Kalady. The agreement was entered into between the firm and the University. In order to raise finance for providing Bank Guarantee and furnishing security, the partners of the firm executed Ext. P9 irrevocable power of attorney in favour of the 5^th respondent Bank. After the work commenced, disputes arose among the partners. In W.P.(C) No. 21525 of 2022, the prayer is for a

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W.P.(C)s. 21525 & 23480/2022.

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direction to the University to pay the amount for the works executed by the firm to the Federal Bank in terms of the

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power of attorney. In W.P.(C) No. 23480 of 2022, the prayer is to restrain the University from paying the amount.

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I heard Adv. Renjith Thampan, learned Senior Counsel appearing for the petitioner in W.P.(C) No. 21525 of 2022, Adv. V.N. Sankerjee, learned counsel appearing for the petitioners in W.P.(C) No. 23480 of 2022, Adv. Dinesh Mathew J. Murikkan, learned Standing Counsel for Sree Sankaracharya University and Adv. Mohan Jacob George, learned Standing Counsel for the Federal Bank.

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Although various contentions are raised, the short question to be considered is whether the payment of the work executed by the partnership is to be effected in favour of the partnership and appropriated by the Federal Bank in terms of the irrevocable power of attorney executed in its favour. Indisputably, the University has drawn Ext. P11 cheque in favour of the partnership. Based on the direction of this Court, the cheque has been handed over to the Bank. The

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W.P.(C)s. 21525 & 23480/2022.

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cheque is being kept idle without crediting it to the account of the partnership by reason of the interim order. It has now come to light that, as a result of the dispute, payments due to the Bank is in default and SARFAESI proceedings have been initiated against the partnership as well as the partners.

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Learned Senior Counsel points out that, the immovable properties of the petitioners in W.P.(C) No. 21525 of 2022 alone have been furnished as security for the financial facilities availed from the Federal Bank.

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The petitioners in W.P.(C) No. 23480 of 2022 allege that the other partners have syphoned off huge amounts to their account, and the dispute cannot be resolved in a proceedings under Article 226.

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I am of the considered opinion that, the agreement being between the partnership and the University, and an irrevocable power of attorney having been issued in favour of the Federal Bank, payment received for the works executed by the partnership ought to be credited to the account of the

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W.P.(C)s. 21525 & 23480/2022.

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partnership itself. As to how the amount is to be appropriated thereafter is for the Federal Bank to decide.

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Learned Standing Counsel for the Federal Bank submits that the amount will be credited/adjusted to the ODCC account of the partnership which is in default. This is recorded.

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The writ petitions are closed without prejudice to the rights of the parties to agitate their grievances before the appropriate forum.

Sd/-

V.G.ARUN

JUDGE

W.P.(C)s. 21525 & 23480/2022.

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APPENDIX OF WP(C) 23480/2022

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF THE LETTER DATED 6.2.2021 ISSUED BY THE 1ST PETITIONER TO THE BANK.
Exhibit P2	TRUE COPY OF THE LETTER DATED 6.2.2021 ISSUED BY THE 2ND PETITIONER TO THE BANK.
Exhibit P3	TRUE COPY OF THE LETTER DATED 6.2.2021 ISSUED BY THE 2ND PETITIONER TO THE BANK.
Exhibit P4	TRUE COPY OF THE LETTER DT. 15.1.2022
Exhibit P5	TRUE COPY OF THE LETTER DATED 31.1.2022 ISSUED BY THE 1ST PETITIONER TO THE 1ST RESPONDENT.
Exhibit P6	TRUE COPY OF THE LETTER NO. NG/8928/S.S.U.S / 2018 DATED 11.7.2022 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER.

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W.P.(C)s. 21525 & 23480/2022.

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APPENDIX OF WP(C) 21525/2022

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PETITIONER EXHIBITS

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Exhibit P1	THE TRUE COPY OF THE RECONSTITUTED PARTNERSHIP DEED, ENTERED BETWEEN THE PETITIONER AND RESPONDENT NOS. 2 TO 4, DATED 01 .04.2011
Exhibit P2	THE TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE RESPONDENT NO.1 UNIVERSITY
Exhibit P3	THE TRUE COPY THE LETTER SEND BY THE PETITIONER TO RESPONDENT NO.2 DATED 10.03.2022
Exhibit4	THE TRUE COPY OF THE REPLY TO EXHIBIT P3 LETTER SEND BY RESPONDENT NO.2 TO THE PETITIONER
Exhibit P5	THE TRUE COPY OF THE PRIVATE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, PARAPPANANGADI
Exhibit P6	THE TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 214/2022 AT THE TIRUR ANGADI POLICE STATION
Exhibit P7	THE TRUE COPY OF THE LETTER DATED 23.06.2022 ISSUED BY THE RESPONDENT NO. 5 BANK TO ROYAL CONSTRUCTIONS
Exhibit P8	TRUE COPY OF THE PROCEEDINGS OF THE UNIVERSITY DATED 08.07.2021
Exhibit P9	TRUE COPY OF THE POWER OF ATTORNEY DATED 23.07.2018.
Exhibit P10	TRUE COPY OF THE PROCEEDINGS DATED 31.03.2022 OF THE 1ST RESPONDENT UNIVERSITY.
Exhibit P11	TRUE COPY OF THE CHEQUE DAED 23.05.2022 FOR A SUM OF RS.76 LAKHS ISSUED BY TREASURY SAVINGS

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W.P.(C)s. 21525 & 23480/2022.

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BANK ACCOUNT OF 1ST RESPONDENT UNIVERSITY IN SUB TREASURY ANGAMALY.

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Exhibit P12	TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT UNIVERSITY DATED 23.05.2022
Exhibit P13	TRUE COPY OF SARFAESI PROCEEDINGS INITIATED BY THE FEDERAL BANK DATED 27.06.2022.
Exhibit P14	TRUE COPY OF SARFAESI PROCEEDINGS INITIATED BY THE FEDEERAL BANK DAED 15.02.2022
Exhibit P15	TRUE COPY OF SARFAESI PROCEEDINGS INITIATED BY THE FEDERAL BANK DATED 22.06.2022.
RESPONDENT EXHIBITS
Exhibit R2(a)	TRUE COPY OF THE STATEMENT OF ACCOUNT BETWEEN 25/02/2010 TO 31/03/2015 IN RESPECT OF THE ODCC ACCOUNT NO.12215500003629 IN THE NAME OF M/S.ROYAL CONSTRUCTIONS IN THE 5TH RESPONDENT BANK.
Exhibit R2(b)	TRUE COPY OF THE STATEMENT OF ACCOUNT REGARDING MISAPPROPRIATION PERPETRATED BY THE PETITIONER AND THE 4TH RESPONDENT IN EXHIBIT R2(A) IN BETWEEN THE PERIOD FROM 03/04/2010 TO 31/03/2015.
Exhibit R2(c)	TRUE COPY OF THE STATEMENT OF ACCOUNT BETWEEN 04/08/2007 TOP 28/03/2021 IN RESPECT OF THE SB ACCOUNT NO.12210100087445 IN THE NAME OF 4TH RESPONDENT IN THE 5TH RESPONDENT BANK.

V. H. Jaffer, v. the Registrar

Case brief

What is this about?

What did the court decide?

V. H. Jaffer, v. the Registrar

Case brief

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