Bal Krishan & Ors. vs Tara Shahzad Bahadur
2013 Latest Caselaw 4968 Del

*           HIGH COURT OF DELHI AT NEW DELHI


+                      RSA 235-237/2005

                                  Decided on : 29th October, 2013


    BAL KRISHAN & ORS.                           ..... Appellants

                Through         Mr.Ashok Kriplani, Advocate.


                       versus


    TARA SHAHZAD BAHADUR             ..... Respondent
            Through Mr.S.C.Singhal, Advocate


    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

C.M. No.13704/2011

1. The learned counsel for the appellant has contended that this

application is not being pressed as the points which have been

urged in the said application are already taken up in CM

No.2975/2013. The learned counsel for the respondent does not

have any objection.

2. Having regard to the statement made by the learned counsel

RSA 235-237/2005 Page 1 for the appellant, the application is dismissed as not pressed.

RSA No.235-237/2005 & CM No.2975/2013

1. Colossal court time has been wasted by the appellant by

keeping this regular second appeal pending in this court for the last

eight years without formulating any substantial question of law in

the appeal.

2. I have heard both the learned counsel for the appellants as

well as the learned counsel for the respondent.

3. The brief background of the case would be required to be

given for elucidating the issue in controversy.

4. The present appellants filed a suit bearing Suit No.376/1991

titled Balkrishan & Ors. v. Mr.sTara Shahzad Bahadur & Anr. for

permanent injunction so far as the running of business by the name

of Maharaja Lal & Sons (New Delhi), at Connaught Place and

Karol Bagh was concerned. Ancillary prayers were also made in

the civil suit. The respondent filed a written statement and

contested the claim of the appellants. A counter claim for

dissolution of partnership dated 08.04.1989 consisting of five

partners was set up. It was further prayed in the counter claim that

the present appellants/plaintiffs be directed to render the accounts.

RSA 235-237/2005 Page 2 The predecessor of the respondent herein had made a statement

that they do not intend to interfere or dispossess the appellants as

was contemplated by them in their plaint and accordingly the suit

filed by the present appellants came to be dismissed as withdrawn.

However, the counter claim continued to be contested by the

present appellants/plaintiffs (defendants in the counter claim) and

the same was decided by the trial court after striking the issues and

permitting the parties to adduce their respective evidence. The

counter claim of the respondent was dismissed on 15.02.2003.

The present appellants had taken a plea during the trial of counter

claim that on 21.05.2002, a new partnership was formulated

amongst the three partners of the erstwhile Maharaja Lal & Sons

(New Delhi). These partners were Mr.Balkrishan, Mr.Sanjeev

Mathur and Mr.Rajat Mathur. The trial court had come to the

conclusion that as a new partnership had come into existence,

therefore, the present respondents ought to have sought the relief

qua the new partnership deed also. It may also be pertinent to

mention here that Mr.Shahzad Bahadur, the original defendant and

the counter claimant, had expired on 14.02.2000 and his wife Mrs.

Tara Shahzad Bahadur was substituted as a legal heir by the first

RSA 235-237/2005 Page 3 appellate court.

5. The respondent feeling aggrieved by the judgment of the

trial court, preferred an appeal. The appeal of Mrs. Tara Shahzad

Bahadur was allowed by the first appellate court on the ground that

the respondent was under no obligation to have assailed the new

partnership deed dated 21.05.2002 and the original partnership of

08.04.1989 deserves to be dissolved.

6. Feeling aggrieved by the said order of the first appellate

court, the present appellants preferred two petitions - one was

CM(M) No.607/2005 and the other was the present regular second

appeal No.235-237/2005.

7. Both these petitions were clubbed together and adjourned for

hearing from time to time without any sincere efforts being made

by the appellants to formulate substantial questions of law, a pre-

condition for issuance of notice to the respondent in the regular

second appeal.

8. So far as CM (M) No.607/2005 is concerned, the main

orders were being recorded in the same and it may be pertinent to

reproduce the order dated 21.05.2005 passed by the learned single

Judge of this court.

RSA 235-237/2005                                             Page 4
    "CM No.7737/2005

1. On 30th April 2005 before the Court of Sr.Civil Judge, Delhi, Mr.Rajeev Mago, M/s Rajeev Mago & Associates, Chartered Accountants, G-82, Lajpat Nagar-II, New Delhi-24 was appointed to assess and distribute the properties of M/s Maharaja Lal & Sons. The learned counsel for the parties agree that this order has still not been implemented.

2. The present application under Section 151 CPC on behalf of the petitioner is for de-sealing of shops and de-freeezing of bank accounts. The learned counsel for the respondent, Shri R.S.Suri has urged that the facts of the case did not call for any interference at the behest of the appellant whose conduct disentitled him to any interim relief and in any case since the respondent owns 66% shares and the petitioners own only about 33% shares, therefore n case this Court is of the view that the desealing of the two showrooms should take place the Connaught Place Show Room should be given to them and the Ajmal Khan Road Showroom maybe given to the appellant/applicant. Mr.Prasad, the learned senior counsel for the petitioner has sought the running of the Connaught Place show room by pleading that Ms.Katyal who is not a party is being inducted to run the business by the respondents, a plea strongly refuted by Shri. Suri who contends that Ms.Katyal owns 33% shares. It is also contended that the respondents lack any experience in conducting the business.

3. It is not in dispute that the learned counsel for both the parties had agreed that it will be in the interest of justice of the parties to have the shares valued and upon the valuation, the division of the assets of the partnership takes place. There is no dispute upto this extent between the parties. Only

RSA 235-237/2005 Page 5 method and manner of valuation was in dispute.

4. Furthermore pending the process of valuation no useful purpose will be secured by keeping both the showrooms at Connaught Place and Ajmal Khan Road sealed and it is in the interest of the parties and the partnership that the showrooms function during the valuation and adjudication of the shares of the partnership. Consequently, I am of the view that both the showroom should be desealed and the bank account defrozen so that the showrooms continue to generate income for the firm during the process of valuation and eventual division of assets. Since admittedly the respondent owns 66% shares their preference for the Connaught Place showroom deserved to be given primacy. Consequently, the Ajmal Khan Road showroom shall be desealed and released to the applicant/appellants and the Connaught Place showroom to the respondents.

5. The Court is of the view that that without expressing any opinion on the capabilities of Mr.Rajiv Mago who is undisputedly is a respected professional Chartered Accountant and without prejudice to the pleas of the parties, Mr.B.S.Sistani, Chartered Accountant, I-22, Jangpura Extension, New Delhi (Tel.24324085) is appointed by this Court to value the assets of the firm and its goodwill and indicate the approximate valuation by filling a report in this Court not later than 15th July, 2005.

6 In the meanwhile, the eventual control of both the premises and the assets and the bank accounts shall be retained by the Chartered Accountant who is permitted to give directions for de-sealing, running and accounting of the two partnership concerns. The C.A. Shri Sistani shall also be entitled to have the bank accounts defrozen by virtue of this order so as to permit the functioning RSA 235-237/2005 Page 6 of the two showrooms under his directions. To begin with the chartered accountant shall be paid a sum of `40,000/- plus actual expenses to be borne by each of the parties in equal share of `20,000/- before the next date of hearing. The chartered accountant to file his report with advance copies to both the parties.

7. Parties to appear before the Chartered Accountant Sh.B.S.Sistani on 30th May, 2005 at 4 P.M.

8. Copy of the order be given dasti to the counsel for the parties.

Sd/-"

9. A perusal of the aforesaid order would show that so far as the

respondent is concerned, she admittedly is owning 66% share and

the appellants are owning 33% share and the court had also

appointed a receiver for the purpose of rendition of accounts after

assessing the value of the assets of the partnership firm. Pursuant

to the aforesaid order of the court, Mr.B.S.Sistani, Chartered

Accountant, having office at I-22, Jangpura Extension, New Delhi

has already purported to have furnished his report with regard to

the valuation of the assets and the goodwill of the firm.

10. The learned counsel for the respondent has also pointed out

that although CM(M) No.607/2005 was held to be not

maintainable by this court vide order dated 03.01.2012, but a RSA 235-237/2005 Page 7 specific precaution was taken, when it was clubbed with the

present regular second appeal, that the orders which are passed in

CM(M) No.607/2005 will be deemed to have been the orders

passed in RSA.

11. The learned counsel for the appellants has contended that the

order dated 21.05.2005 stands superseded by a fresh order dated

20.12.2010 in the RSA.

12. I have gone through the order dated 20.12.2010. In the said

order, it has been recorded by the learned single Judge that it is not

possible for the parties to resolve their disputes amicably and the

attention of the court was drawn to the order dated 21.05.2005 and

the settlement arrived at between the parties therein. It was also

pointed out to the court that the Chartered Accountant in terms of

the said order has already submitted his report and the counsel for

the appellants has also filed objections to the said report.

13. The case was adjourned thereafter for framing substantial

questions of law.

14. There is no doubt that in the order dated 20.12.2010, the

court has observed that the parties are not able to resolve their

disputes amicably and the attention of the court was also drawn to

RSA 235-237/2005 Page 8 the order dated 21.05.2005 by virtue of which the parties are

purported to have settled their disputes, but in the order dated

21.05.2005, the parties had agreed to the valuation of the assets

and goodwill of the firm, but so far as the percentage of the shares

of the appellants and the respondent is concerned, which were

apportioned at 33% and 66% between the appellants and the

respondent, that was not by way of any settlement having been

arrived at between the parties. Therefore, merely on account of

the order having specifically been passed by this court on

20.12.2010, it cannot be said that the shares of the parties which

are to the extent of 33% & 66% can be varied or obliterated. The

only question which arises for consideration is as to whether the

parties who had agreed to the valuation and the

settlement/rendition of accounts in the terms of the report having

been filed by the receiver, can be said to have also been obliterated

or not.

15. Admittedly, in the instant case, the first appellate court has

passed a decree in favour of the respondent for dissolving the

partnership dated 08.04.1989 and on account of the dissolution of

the partnership, the necessary corollary of the same is that the

RSA 235-237/2005 Page 9 assets, goodwill and the properties of the partnership have to be got

assessed and thereafter a proper division of the same has to be

done and the appellants who happen to be the defendants in the suit

have to render the accounts of the partnership to the respondent

herein. This is dehors the fact that the court will be considering

whether any substantial question of law would arise in the present

second appeal or not.

16. With regard to formulation of substantial questions of law,

admittedly no substantial question of law has been formulated and

it is only on 23.01.2013 that an application without any provision

of law having been mentioned on the same has been filed wherein

certain questions, which are claimed by the appellants as

substantial questions, are formulated.

17. I have gone through these questions which are formulated by

way of submissions and none of them, in my considered view,

constitutes a substantial question of law. The learned counsel for

the appellant was not able to convince the court that any substantial

question of law is involved which would warrant issuance of

notice. So far as the order of the first appellate court dissolving the

partnership is concerned, that is perfectly legal and valid and

RSA 235-237/2005 Page 10 necessary effect to the dissolution of the partnership has to be

given which can be done only by the trial court where the matter

stands remanded.

18. I have been given to understand that insofar as the appellant

is concerned, he has admittedly filed certain objections to the

report of the receiver and the trial court will decide the objections

of the appellant to the report of the receiver and thereafter pass a

final decree.

19. The present regular second appeal is accordingly dismissed.

20. The parties are directed to appear before the trial court on

23.11.2013 as fixed by the trial court.

21. The Registry is directed to segregate the report of the

receiver along with the objections filed and transmit the same to

the trial court for decision in accordance with law.

                                              V.K. SHALI, J
OCTOBER 29, 2013/dm




RSA 235-237/2005                                             Page 11