Dismissed

Sannapaneni Balakrishnama Naidu v. Sannapaneni sundararama Naidu

Telangana HC19 Nov 2013CRP/2137/2013

Case brief

AI extract

What is this about?

This common order dismissed two Civil Revision Petitions challenging the impleadment of two respondents claiming partnership firm status and the appointment of an Advocate Commissioner. The Court held that in the absence of a final decision on partner dispute, contenders have a right to come on record, and the lower court's order was not erroneous.

What did the court decide?

Both Civil Revision Petitions No.1890 and 2137 of 2013 are dismissed with no costs attached.

Sannapaneni Balakrishnama Naidu Vs… — Civil Procedure and Limitation | Telangana HC (2013)

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HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION Nos.1890 & 2137 of 2013

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C O M M O N - O R D E R

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Civil Revision Petition No.1890 of 2013 has been filed challenging the order and decree, dated 17.04.2013 passed in I.A.No.195 of 2013 in O.S.No.9 of 2013 on the file of Senior Civil Judge, Gudur.

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2. Civil Revision Petition No.2137 of 2013 is filed questioning the order, dated 17.04.2013 passed in I.A.No.193 of 2013 in I.A.No.54 of 2013 in I.A.No.18 of 2013 in O.S.No.9 of 2013 on the file of Senior Civil Judge, Gudur.

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3. Since the parties and main dispute in both the revisions are one and the same, they are disposed of by this common order.

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4. The brief facts of the case are that the second petitioner– M/s.S.S.R.Constructions is a firm represented by the first petitioner and his wife. The said firm was constituted on 23.07.2002. Originally, Late Penchala Naidu and his sons Sannapaneni Sundara Rama Naidu, Sannapaneni Lakshmi Narayana and his wife Sannapaneni Lakshmamma and Sannapaneni Radha Rani, wife of Sundara Rama Naidu are the partners of the said firm. Late Sannapaneni Penchala Subba Naidu passed away on 20^th January 2007. The partnership firm was re-constituted after the demise of Sannapaneni Penchala Subba Naidu. The main business of the firm is the execution of contract works of all nature and allied business. Later, the petitioners herein filed O.S.No.9 of 2013 against the third respondent herein.

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5. The main case of the petitioners herein is that the first petitioner and the third respondent herein are brothers and that they have jointly purchased a land in Ac.1.70cents in Survey No.6-2, in the year 2011 and subsequently, there was a oral partition, wherein the suit schedule property came to the share of first plaintiff and since then,

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the plaintiffs have been in the peaceful possession and enjoyment of the suit schedule property. Alleging that the third respondent has been interfering with the possession and enjoyment of the suit schedule property, the plaintiffs filed a simple suit for injunction.

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6. The stand of the third respondent-defendant as seen from the counter filed in I.A.No.18 of 2013 is that the first petitioner and the third respondent have jointly purchased the property under two sale deeds on 9.2.2011 and there was no alleged oral partition as contended by the petitioners and it is false to say that the said schedule mentioned property was allotted to the share of the first petitioner in the said oral partition. It is also his contention that the suit schedule property is not the property of the partnership firm.

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7. It appears that the trial Court granted Status quo orders in I.A.No.18 of 2013.

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8. Then, the respondents 1 and 2 herein i.e., mother of the first petitioner and brother of the first petitioner filed I.A.No.195 of 2013 to implead them as defendant Nos.2 and 3 in the original suit. The first respondent herein filed an affidavit specifically contending that herself and her another son i.e., second respondent herein are the partners of the second petitioner firm. It is also her contention that the petitioners are not entitled to file the suit and seek injunction order and that the interest of second petitioner is involved in the matter and therefore, they are entitled to come on record to contest the matter to safeguard their interest in the partnership firm.

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9. The stand of the petitioners herein as seen from the counter filed in I.A.No.195 of 2013 is that respondents 1 and 2 herein are the outgoing partners of the second petitioner firm and that they have retired from the partnership firm and accordingly, the Registrar of firms was informed about their retirement, who in turn, issued Form No.A in favour of the firm and that the petitioners gave publication in

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Eenadu Telugu Daily newspaper, District edition, about the retirement from the second petitioner firm and therefore, they are not necessary parties and they need not come on record. It is also contended that only with an ulterior motive and with connivance of third respondent, they filed this petition to come on record.

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10. The third respondent herein, who is the sole defendant in the suit, has not filed any counter before the lower Court.

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11. The lower court having regard to the rival contentions and the documents marked in the said I.A, came to the conclusion that the first respondent herein is an illiterate woman and that the confirmation letter contained signature of only the first petitioner and in view of the allegation that the first petitioner fabricated the documents and that respondent Nos.1 and 2 are continuing as partners of the first petitioner firm, it is just and necessary to implead them as parties to the suit. Challenging the same, C.R.P.No.1890 of 2013 is filed.

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12. It appears in the meanwhile, I.A.No.193 of 2013 was filed for appointment of an Advocate Commissioner. The lower Court appointed an Advocate Commissioner and the said Advocate Commissioner visited the residential property on 03.02.2013 and filed his report. Therefore, the defendant in the suit i.e., third respondent in C.R.P.No.1890 of 2013 filed C.R.P.No.2137 of 2013.

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13. The main contention of the third respondent is that the Advocate Commissioner without serving any notice inspected the suit property and filed his report. As seen from the impugned order, the learned Senior Civil Judge observed that the third respondent is not disputing the physical features noted by the learned Commissioner in his report. Since the contents of the report of the Advocate Commissioner are not disputed by the third respondent herein, I am of the view that there is no need to disturb the order dated 17^th April, 2013 passed in I.A.No.193 of 2013 in I.A.No.54 of 2013 in I.A.No.18 of

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2013 in O.S.No.9 of 2013. Accordingly, C.R.P.No.2137 of 2013 stands dismissed. However, it is made clear that if the third respondent intends to file any objections to the Advocate Commissioner’s report, it is left open to him to file such objections.

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14. As far as C.R.P.No.1890 of 2013 is concerned, the main contention of Sri A. Chandraiah Naidu, learned counsel for the petitioners is that the petitioners herein have filed the suit against the third respondent herein seeking injunction and it is the bare suit for injunction and the second petitioner is a partnership firm and in the above circumstances, there is no need to implead respondent Nos.1 and 2 as parties in the suit, as no relief is sought against them. It is also further contended that only at the instance of third respondent, the petitioners have filed this petition to drag on the proceedings. It is also his contention that the respondents have already retired from the partnership firm and the Registrar of firms has also issued relevant Form No.A in favour of the second respondent firm to that effect and the said fact have been published in Eenadu Telugu daily newspaper by the petitioners.

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15. The main submission of Sri T.V. Kalyan Singh, learned counsel for the respondent Nos.1 and 2 is that the respondents are the partners of the second petitioner firm and they have never retired from the firm and the income tax returns filed by the parties also go to show that they are continuing as partners of the firm and without their consent and without their knowledge, the first petitioner has no right to file the suit in the name of the firm. It is also submitted that taking advantage of the interim orders passed by the Court, the first respondent has been enjoying the property and depriving the income from the firm to respondent Nos.1 and 2. It is also submitted that the first respondent, who is the mother of the first petitioner and second respondent has no means to sustain herself.

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16. Sri A. Chandraiah Naidu, learned counsel submits that

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the first respondent has got immovable properties and she has sufficient income and that all the parties have partitioned their properties and they are enjoying their respective shares. It is also submitted that even if the petitioners succeed in the suit and obtain a decree against the third respondent, this decree is not binding on respondent Nos.1 and 2 and it will have no affect on the partnership firm. It is also submitted that respondent Nos.1 and 2 filed W.P.No.29496 of 2013, wherein they requested the Government not to release the amounts to the second petitioner firm. Thus, the main contention of Sri A. Chandraiah Naidu is that since the petitioners are seeking relief against the third respondent alone, the petitioners are not necessary parties to the suit. It is also submitted that even if there is any internal dispute between the partners or outgoing partners, the present civil suit is not the form to settle their disputes. It is also submitted that the lower Court has not considered the relevant facts.

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17. Sri T.V.Kalyan Singh, learned counsel for respondent Nos.1 and 2 submits that the income tax returns filed on behalf of the firm for the assessment year 2011 and 2012 reveal that the first respondent has 10% share amounting to Rs.1,20,330/- and the second respondent herein has 10% share and the remuneration amount comes to Rs.1,80,330/- and that those documents are filed by the first petitioner herein. Sri A. Chandraiah Naidu, submits that the latest income tax returns filed for the year 2012 and 2013 shows that the first petitioner and his wife are the only partners of the firm.

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18. The main dispute between the parties as to whether respondent Nos.1 and 2 have retired from the firm or not has to be considered in appropriate proceedings and this Court is not inclined to express any opinion on this aspect. However, the fact remains that they still contend that they continued to be the partners of the second petitioner firm. Whether the property purchased by the first petitioner and third respondent jointly was orally partitioned between them or not

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or whether the schedule mentioned property fell to the share of first petitioner in the said oral partition is also not within the ambit of this revision. Those are the aspects that have to be finally decided at the time of disposal of the suit.

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19. As far as the partnership business is concerned, normally the partners authorize one among them to represent their firm before the Courts and when there is no dispute between the partners, a partner, who is so authorized to file a suit or to defend a suit may alone make appearance on behalf of the firm and represent the firm in those proceedings. But, when there is a dispute as to who are the continuing partners of the firm and whether some of the partners have retired from the partnership firm or not, until the said dispute is finally decided, it cannot be said that respondents 1 and 2 have no interest in the partnership firm. When they are claiming that they have interest in the partnership firm, it is clear that they have right to come on record. In view of the same, I am of the view that there is no need to disturb the well-reasoned order, passed by the lower Court. There is no irregularity or illegality in the impugned order. Therefore, C.R.P.No.1890 of 2013 is liable to be dismissed.

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20. Accordingly, both Civil Revision Petition Nos.1890 and 2137 of 2013 are dismissed. In the circumstances, no costs. Miscellaneous petitions, pending if any in these Civil Revision Petitions 1shall stand closed.

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_____________________ B. CHANDRA KUMAR, J

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Date: 19.11.2013 sr

Sannapaneni Balakrishnama Naidu v. Sannapaneni sundararama Naidu

Case brief

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Sannapaneni Balakrishnama Naidu v. Sannapaneni sundararama Naidu

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