Suriender Singh Lognani And Anr. vs Suresh Seth And Anr.
1992 Latest Caselaw 196 Del

JUDGMENT

D.K. Jain, J.

(1) This is a defendant appeal against ad-interim order of the Id. Addl. District Judge, Delhi dated 13 December, 1990, on their being restrained from interfering in any manner in the newly constituted business of the plaintiffs.

(2) The two plaintiffs and the two defendants entered into a partnership styled as M/s. Seth Lognani Jewellers vide deed dated 2 November, 1990. Alleging that the said partnership was dissolved by mutual consent on 6 November, 1990; the defendants were paid Rs. 5 lakhs and a receipt for Rs. 5 lakhs was issued by the defendants of 6 November 1990, in full and final settlement of all their claims against the firm and surrender of the business premises No. 1384, S.B. Sarafa Market, Chandni Chowk, Delhi by defendants, the plaintiffs filed a suit for perpetual injunction against the defendants on the plea that the defendants were willfully obstructing them in their new business which they were now carrying on under the name and style of M/s. Mani Jewellers along with a new partner. The plaintiffs, thus, prayed for a decree for perpetual injunction in their favor and against the defendants restraining the defendants, their servants, assigns and representatives from entering in the said business premises. An application under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short the 'Code') was also filed for ad interim injunction against the defendants.

(3) The suit was registered and an ex-parte ad-interim injunction, in terms prayed, was issued by the Id. Trial Court.

(4) On service of notices in the said suit, the defendants did not file their written statement on the plea that they wanted to invoke the arbitration clause in the partnership deed dated 2 November, 1990 and take recourse to Section 34 of the Indian Arbitration Act, 1940. They instead moved an application under Order 39 Rule 4 read with Section 151 of the Code for vacation of the ex-parte injunction and also for dismissal of the suit as being hit by the prohibition enacted in Section 69(1) of the Indian Partnership Act, 1932. In the said application the defendants denied having received Rs. 5 lakhs and the execution of any receipt therefore. The defendants alleged that the said receipt had been fabricated by the plaintiffs. Written submissions were also filed by the parties. In the written submissions filed in support of the said application defendants reiterated that the said receipt for Rs. 5 lakhs was not genuine in that : (i) it was not registered; (ii) the signatures of the defendants had been traced out; (iii) it was prepared on two typewriters; and (iv) the revenue stamps had only been crossed and not signed by the defendants.

(5) On the application of the plaintiffs for interim relief and defendants application for vacation of ex-parte stay, after hearing the parties, the Id. trial Court, on a prima facie view, observed that in view of the said receipt, which had been signed by the defendants, the firm stood dissolved, no contract 727 between the parties subsisted and, therefore, the provisions of Sections 69(1) and (2) of the Partnership Act had no application. Regarding Section 34 of the Arbitration Act, the Trial Court was of the view that the firm having been dissolved on the strength of the said receipt, the arbitration clause in partner- ship deed, died with it and, therefore, the said provisions were also not attracted. The ld. trial Court thus, found that a prima facie case for ad interim injunction had been made out against the defendants, and it confirmed the ex-parte interim injunction and restrained the defendants from interfering with the business of the newly constituted firm, namely M/s. Mani Jewellers. The Court, however, directed the plaintiffs to keep accounts of the business and submit in Court a quarterly return regarding the sale of the ornaments. Aggrieved by this order, the defendants have filed the present appeal.

(6) I have heard Id. Counsel for the parties and have also perused the trial Court's record and the record in this appeal. I am of the considered view that the impugned order does not call for interference.

(7) As noted above the case of the plaintiffs Is passed on the receipt, which they claim to have been executed by the defendants on 6 November, 1990. It appears that the defendants stand in this behalf has been shifting from time to time and not a straight one. Initially, the stand taken was that the receipt is forged, whereon the signatures of the defendants have been traced. In their application under Order 39 Rule 4 of the Code the defendants had only said that the said receipt had been forged. In the written arguments it was stated that their signatures had been traced on a paper and thereafter somebody forged the receipt. In the present appeal, in their rejoinder filed on 16 December, 1991 and in their application, being C.M. 2560/91, there has been yet a prominent shift in their stand, in that it is admitted that the signatures on the impugned document are In fact of the defendants but made on a cyclostyled printed form for opening of a new current account of the firm in a bank. The said rejoinder had been filled by the defendants after application (C.M. 3085/91) had been moved by the plaintiff is seeking to place on record original partnership deed dated 2 November, 1990 signed by the defendants, for the purpose of comparing the signatures of the defendants on the receipt by an expert. It was only thereafter In defendants reply to another application, being C.M. 182/92, for appointment of an handwriting expert to compare the signatures on the receipt with those on the partnership deed, that a categorical admission regarding signing of the receipt was made, though with an explanation.

(8) The receipt In question, now admittedly bearing the defendants signatures, does not appear to have been made and scribed in a normal way. However, a finding on its genuineness or otherwise can be possible only after trial. Having regard to the pleadings of the parties and keeping In view the two significant unexplained circumstances, namely, the signing of cheque for Rs.5 lakhs by two partners on behalf of both the parties and handing over of duplicate set of keys over to the plaintiffs by the defendants, specifically pleaded by the plaintiffs and not denied by the defendants, I am inclined to endorse the view taken by the Id. trial Court that a prima fade case has been made out in favor of the plaintiffs; balance of convenience lies in their favor and If defendants are not restrained from interfering with their newly constituted business, this will lead to problems and they will suffer irreparable loss.

(9) As regards the submission of the Id. Counsel for the defendants/ appellants that the suit is hit by the provisions of Section 69(1) of the 728 Partnership Act, I am in agreement with Id. trial Court that the said provision has no application to the facts of the present case, in that the tenor of the receipt indicates that the firm stands dissolved with effect from 6 November 1990 and therefore, the non registration of the said firm would not debar the plaintiffs to file the suit against the defendants, the plaintiffs are not seeking to enforce any claim which could be said to be based on the contract which regulated the partnership of M/s. Seth Lognani Jewellers dated 2 November, 1990. As noted above, the claim in the present suit is based on a new contract, in the form of the said receipt, putting an end to the relationship which had subsisted between the parties and the same is a distinct and independent cause. Similarly. Section 34 of the Arbitration Act would also have no application. The Arbitration clause being in the partnership deed, aforesaid, dies with it.

(10) I do not find much force in the contention of the ld. Counsel for the defendants that the new firm, M/s. Mani Jewellers, also being unregistered, the suit will be hit by Sub-section (5) of Section 69 of the Partnership Act. A perusal of the plaint would show that the suit is not by the said new firm.

(11) In the result, I do not find any merit in this appeal and the same is hereby dismissed. The parties are, however, left to bear their own costs.

(12) All what is stated hereinabove is a prima facie view of the matter for the purpose of disposal of this appeal and should not be construed as an expression of opinion on the merits of the case. The trial will proceed on its own merits.

(13) Parties are directed to appear before the Trial Court on 24 March, 1992. The record of the Trial Court be sent back forthwith.