Bombay High Court
Kalpana Theaters Thr. Managing ... vs Iqbal Mushtaque Ahmed And Others on 28 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2494 OF 2016
1) Kalpana Theaters,
through its Managing Partner
Shri Mukhtar Ahmed.
2) Mukhtar Ahmed s/o Late Mushtaque
Ahmed, Aged about 59 years,
Occupation - Business,
3) Shahid Ahmed s/o Mukhtar Ahmed,
Aged about 27 years,
4) Sohail s/o Mukhtar Ahmed,
Aged about 24 years,
Occupation - Business,
All residents of Plot No.4-A, Patel
Nagar, Opposite Lokpriya High
School, Borgaon, Nagpur - 13. .... PETITIONERS
VERSUS
1) Iqbal Mushtaque Ahmed,
Aged - Adult, Occupation - Business,
2) Israr Mushtaque Ahmed,
Aged - Adult,
Occupation - Business,
Resident of Plot No.281, New
Shukrawari, Shirke Road, Circle No.3,
Gujarpura, Near Noorani Masjid, Nagpur.
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3) Assistant Registrar,
Registrar of Firms, Civil Lines,
Nagpur. .... RESPONDENTS
______________________________________________________________
Shri U.A. Gosavi, Advocate for the petitioners,
Shri V.S. Mishra, Advocate for the respondent Nos.1 and 2,
Mrs. H.N. Prabhu, A.G.P. for the respondent No.3.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 28
th JUNE, 2016
ORAL JUDGMENT :
1. Heard Shri U.A. Gosavi, Advocate for the petitioners, Shri
V.S. Mishra, Advocate for the respondent Nos.1 and 2 and Mrs.
H.N. Prabhu, Assistant Government Pleader for the respondent No.3.
2. Rule. Rule made returnable forthwith.
3. The respondent Nos.1 and 2 have filed the civil suit
praying for decree in the following terms :
"(1) to pass a decree of declaration in favour of plaintiffs
and declare the Forms "e" i.e. notice of change dated
19-04-2010 (Doc.No.1) and certificate of change dated
12-06-2010 (Doc.No.2) issued by defendant No.5 in favour
of defendant Nos.1 to 4 as null and void as the same has
been made by forging the documents and adopting illegal
and unlawful modus operandi.
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(2) to pass a decree of declaration in favour of
plaintiffs and declare the Form "e" i.e. notice of change
dated 01-07-2009 (Doc.No.3) 19-04-2010 (Doc.No.4)
deletion of plaintiffs' name from partnership firm, issued by
defendant No.5 in favour of defendant Nos.1 to 4 as null
and void as the same has been made by forging the
documents and adopting illegal and unlawful modus
operandi.
(3) to pass a decree of declaration in favour of
plaintiffs and declare the Partnership-deed dated
01-01-2010 (Doc.No.6) and Dissolution-deed dated
03-03-2010 (Doc.No.5) as null and void as the same has
been made by forging the documents and adopting illegal
and unlawful modus operandi.
(4) further be pleased to declare all the documents
submitted by defendant Nos.1 to 4 before defendant No.5
(as specified in document No.11) as null and void and
further be pleased to direct defendant No.5 to restore the
name of plaintiff Nos.1 and 2 in Partnership-deed and in
Form "e" as the same was deleted by forging the documents
and adopting illegal and unlawful modus operandi.
(5) pass a decree of declaration in favour of the
plaintiffs and against the defendant Nos.1 to 4 declaring
therein that the defendants, their agents, servants and all
other persons or person claiming through them have no
right to transfer, alienate the suit property in favour of
anyone else and also restrain the defendants from
modifying, altering the suit property in any manner
whatsoever.
(6) pass a decree of permanent injunction in favour
of the plaintiffs and against the defendants restraining
them, their agents, servants and all other persons claiming
through them or under them from transferring, alienating
or leasing out the suit property to any third party in any
manner whatsoever and also restrain the defendants from
modifying/altering the suit property in any manner
whatsoever with a view to change the nature of the same.
(7) Honourable Court that on proper scrutiny be
pleased to award accounts (if any) earned by the defendant
Nos.1 to 4 from the period when they illegally deleted the
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names of plaintiffs till the names of the plaintiffs are
restored.
(8) any other relief which the honourable Court
deems fit, to be granted in the interest of justice.
(9) saddle the cost of the litigation on the
defendants."
4. The petitioners-original defendants filed an application
(Exhibit No.14) under Section 8 of the Arbitration and Conciliation
Act, 1996 contending that the subject matter is required to be resolved
by an arbitration as per the terms of deed of partnership between the
plaintiffs and the defendants and therefore, the matter be referred to
an arbitrator. The respondent Nos.1 and 2-plaintiffs opposed the
application. The learned trial Judge, by the impugned order, has
rejected the application filed by the petitioners on the ground that the
prayers made by the plaintiffs in the civil suit cannot be considered by
the arbitrator and further that the plaintiffs have sought reliefs against
the defendant No.5-Assistant Registrar of Firms who is not party to the
deed of partnership.
5. The learned Advocate for the petitioners has submitted
that the plaintiffs have impleaded the Assistant Registrar of Firms only
to maintain the civil suit and to avoid the reference of dispute to the
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arbitrator as per the deed of partnership. It is submitted that the
prayer made against the Assistant Registrar of Firms is not a
substantive relief but is a consequential relief and if the prayers made
by the plaintiffs against the defendants are granted, then the Assistant
Registrar of Firms will have to take the consequential action. It is
submitted that the reasons given by the trial Court for rejecting the
application filed by the petitioners are not proper. It is prayed that the
impugned order be set aside and the trial Court be directed to refer the
dispute between the parties, to an arbitrator as per the terms of deed
of partnership.
6. The learned Advocate for the respondent Nos.1 and 2-
plaintiffs has submitted that the trial Court has rightly rejected the
application filed by the petitioners, and that the reasons recorded by
the learned trial Judge are in consonance with the judgment given in
the case of Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya reported
in 2003(5) SCC 531.
7. Considering the reliefs sought by the plaintiffs in the civil
suit and the fact that the Assistant Registrar of Firms is not party to the
deed of partnership and the claim made by the plaintiffs against the
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Registrar of Firms cannot be determined by the arbitrator and
considering the proposition laid down in the judgment given in the
case of Sukanya Holdings Pvt. Ltd., I find that the impugned order is
proper and does not require any interference.
8. The petition is dismissed. In the circumstances, the parties
to bear their own costs.
JUDGE
adgokar
