Delhi High Court
Saroj Arora & Ors vs Mohinder Pal & Ors on 27 April, 2015
* HIGH COURT OF DELHI AT NEW DELHI
Decided on : 27th April,2015
+ FAO 320/2010
SAROJ ARORA & ORS ..... Appellants
Through Ms.Deepika V. Marwaha, Adv.
versus
MOHINDER PAL & ORS ..... Respondents
Through Mr. Ajay Bahl, Adv.
+ CM(M) 1105/2010
SAROJ ARORA & ORS ..... Petitioners
Through Ms. Deepika V. Marwaha, Adv.
versus
MOHINDER PAL & ORS ..... Respondents
Through Mr. Ajay Bahl, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This order shall dispose of CM(M) No.1105/2010 and FAO
No.320/2010 both titled as Saroj Arora & Ors. v. Mohinder Pal & Ors. It
may be pertinent here to mention that both the present CM(M) and the
appeal are against the order dated 09.06.2010 by virtue of which the
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 1
petitioner was granted a sum of Rs.20,000/- by way of interim orders
during the pendency of the suit and by the same order the court had
observed that a receiver shall be deemed to have been appointed.
However, no receiver was subsequent thereto appointed as no conditions
were specified. This court had a reservation as to whether CM(M) and
an appeal would lie in a case where the court has directed appointment of
a receiver yet not named the receiver or specified the terms and
conditions for appointment of the receiver.
2. Ms.Marwah has placed reliance on two judgments of the High
Court in Govind Ram and Ors. v. Ganesh Ram & Ors; AIR 1922 Patna
577 and Srinivasa v.Baburao and Anr.; AIR 1970 Mysore 141 to contend
that even if a court has appointed a receiver but the name of the receiver
or other terms and conditions were not specified, it will be appealable
order under Order XLIII. I have gone through the judgments cited by the
counsel. No judgment to the contrary has been cited by the respondents,
therefore, I am satisfied that the appeal against the impugned order would
be maintainable.
3. In the FAO No.320/2010 and CM(M) No.1105/2010, the following
reliefs respectively are being prayed.
RELIEF SOUGHT IN FAO No.320/2010
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 2
a) Appoint a receiver in respect of the business of the partnership firm
i.e. under the name and style of the "The Oriental Fruits and Mart"
at E-23, Connaught Place, New Delhi.
RELIEF SOUGHT IN CM(M) No.1105/2010
b) Direct the respondent Nos.1, 3 & 4 to pay the petitioners a sum of
Rs.2 lacs per month for the time being during the pendency of the
present proceedings, for her needs and living, considering the fact
that in their latest income tax papers filed on record reflects that the
monthly income of the business is Rs.17 lacs, as such for an
admitted share of 26% in the said business Rs.2 lacs is small
amount.
4. Briefly stated, the facts leading to the filing of the present petition
are that the petitioners had filed a suit in September, 2008 with respect to
the movable and immovable assets including the tenancy rights and the
goodwill of the partnership firm constituted under the name of "M/S The
Oriental Fruits and Mart", stated to be operating its business since 1938
from E-23, Connaught Place, New Delhi.
5. The partnership firm was started by Satya Pal and Brat Pal, the two
sons of Late Fakir Chand. After their death their legal heirs inherited their
shares and the partnership deed was reconstituted vide partnership
agreement dated 4.12.2001. The original shareholding patterns and the
pedigree table is as follows:
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 3
Satya Pal Brat Pal
(original shareholder) (original shareholder)
Legal Heirs of Satya Pal Legal Heirs of Brat Pal
Jai Pal Shiv Pal Virender Pal Narender Pal Smt. Sunita Arora Mohinder Pal
(Deceased) (22% shares) (Retired (26% shares) (26% shares) (26% shares)
with his
(Respondent (Deceased) (Deceased) (Respondent
share)
No.2) no. 1)
Legal Heirs of Mohinder Pal
Jitender Pal Ravinder Pal
(Respondent no. 3) (Respondent no. 4)
6. In the year 2006, Narinder Pal due to poor health became confined
to bed and was unable to participate in the business. It is alleged by the
plaintiff that the defendants took undue advantage of this fact and
debarred Narinder Pal from entering the business premises as well as
from operating the bank accounts. At this point a suit for permanent
injunction was filed by Narinder Pal against Shiv Pal and Mohinder Pal.
It was prayed in the said suit that Shiv Pal and Mohinder Pal be injuncted
to not debar the said plaintiff namely Narinder Pal in the said suit from
operating the bank accounts of the partnership firm and further to not
hinder the ingress and egress of the plaintiff/Narinder Pal to the store
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 4
located at E-23, Connaught place. A criminal case was also instituted by
Narinder Pal against Moninder Pal on 07.11.2007 u/s
403,420,464,467,468,471 and 506 of IPC alleging forgery and
dishonestly acquiring the ancestral property belonging to their father Brat
Pal.
7. During the pendency of the suit for permanent injunction,
Narinder Pal expired on 22.11.2007. Further Sunita Arora also died on
05.08.2007. It is alleged by the plaintiff since Sunita Arora did not have
any class-I heirs therefore her property should have devolved upon class-
II heirs which included late Narinder Pal also but it is alleged that the
same was illegally retained by the respondents.
8. It is the case of the plaintiff that on the death of Narinder Pal the
partnership deed dated 04.12.2001 stood dissolved in view of the
provisions of S. 42 on the Indian Partnership Act, 1932 and the plaintiff
being the legal heirs of late Narinder Pal became entitled to rendition of
account and accommodation with respect to the movable and immovable
assets of the firm to the extent of the shareholding of late Narinder Pal.
9. It is the case of the plaintiff that the defendants have failed to
render true and correct accounts and are dishonestly continuing to carry
on the business of the firm under the name and style of "M/S Oriental
Fruits Mart" to the exclusion of the plaintiffs in an illegal and unlawful
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 5
manner. This has lead to the filling of a suit for declaration, rendition of
accounts and injunction by the plaintiff in September 2008.
10. The court vide order dated 04.09.2008 appointed a local
commissioner to prepare the inventory of stocks and to sign the account
books. The respondent/defendant filed an application dated 17.09.2008
seeking a stay of the aforesaid order of 04.12.2001 and the same was
dismissed. The local commissioner in his report dated 03.10.2008
accused the respondents Nos.1, 3 & 4 of obstructing him in carrying out
the inspection and signing the books of accounts. It was stated that they
called the police and refused to cooperate. It is averred by the petitioner
that the aforesaid act and conduct of the respondents constituted wilful
disobedience of the orders of the court and hence contempt of the court. It
is averred by the learned counsel for the petitioners that the local
commissioner's report was not even objected to by the
respondents/defendants.
11. It has been alleged that Moninder Pal along with his two sons
Jitender Pal and Ravinder Pal are in control of the entire business and
have cheated and defrauded all the other family members. It is alleged by
the petitioner that in the written statement filed belatedly, the defence of
the respondent Nos.1, 3 & 4 is based on forged and fabricated documents.
12. In defence it is stated, that Shiv Pal retired voluntarily
relinquishing his share of 22% for a total compensation of Rs. 6 lakhs
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 6
vide retirement deed dated 31.03.2006 and the said document is allegedly
signed by Shiv Pal and Late Narinder Pal. In furtherance thereof, the
respondents/defendants placed an alleged reconstituted partnership deed
dated 31.03.2006 before the trial court wherein Shiv Pal's 22%
shareholding is shown to have been transferred in the name of Mohinder
Pal.
13. The learned counsel for the petitioner has contested that it is highly
improbable that Shiv Pal would surrender his 22% share which would
include the goodwill, reputation of business, tenancy rights of the shop,
stocks worth lakhs and the capital invested in one of the most famous
businesses of Connaught Place, New Delhi for a meagre amount of
Rs.6 lakhs. Further it is stated that Shiv Pal has filed a separate suit
against Mohinder Pal with respect to the so-called retirement deed. In
support of his contentions the learned counsel for the petitioners has
drawn the attention of the court to the written statement filed by Shiv Pal
before the trial court wherein he has categorically denied having signed
and/or any knowledge of the existence of any such retirement deed dated
31.03.2006.
14. It is further averred by the learned counsel for the petitioner that
along with the aforesaid documents a 'Partnership Deed' dated
01.04.2006 was also placed on record, whereby Jitender Pal and Ravinder
Pal were taken on board as new partners. It is alleged that the aforesaid
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 7
document which is purported to have been signed by late Narinder Pal
has been fraudulently manufactured and the said signatures have been
forged. It is stated that the said new partners were admitted without
having invested even a penny in the business. The learned counsel has
further stated that the aforesaid admission of the new partners is
suspicious as no other third generation member of such a large family
including the petitioners were asked to join the business and this in itself
puts a question mark on the authenticity of these documents.
15. The learned counsel for the petitioner has further argued that
before the trial court the respondents have relied on another partnership
deed dated 9.08.2007 purported to have been made on the death of Sunita
Arora, whereby her shares were transferred to the sons of the Mohinder
Pal i.e. respondent no.3 and 4. It is stated that to the best of the
knowledge of the petitioner, Sunita Arora had left no Will and the
document filed as a Will of Sunita Arora is an unregistered, forged and
ambiguous document.
16. The last document placed on record by the respondent/defendants
is dated 26.11.2007 and is allegedly executed after the death of Narinder
Pal wherein it is stipulated that the share of late Narinder Pal would also
go to Mohinder Pal. It is stipulated therein that the existing partners have
agreed to pay the outstanding capital and earned profits to the deceased's
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 8
legal heirs, but the same has not been evaluated till date, despite filing of
the suit.
17. It is stated by the learned counsel for the petitioners that the
defence put forward by the respondent Nos.1, 3 & 4, as per the document
dated 07.08.2007 is that it is not a partnership at will is falsified because
if a partnership business requires reconstruction and revaluation, it has to
be a partnership at will.
18. The learned counsel for the petitioners has further challenged the
validity of the aforesaid documents on the grounds that they same have
been signed as witness by A.Arora who happens to be the wife of
Mohinder Pal and the second witness is some servant of the shop. In
furtherance of the aforesaid argument the learned counsel for the
petitioner has drawn the attention of the court on the dates on which the
alleged aforesaid documents are purported to be signed. It is stated that
it's suspicious that not only all the documents are unregistered but also
have been signed by the same two people in the capacity of witness but
also appear to be signed on the same dates. It is averred by the learned
counsel for the petitioners that by no stretch of imagination it can be said
that the aforesaid forged and fabricated document carried the sanction of
late Narinder Pal when he had himself instituted a civil and criminal case
against Mohinder Pal.
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 9
19. The case of the petitioners is that the partnership deed dated
04.12.2001 is the last document that was executed between the partners
and as per the certified record obtained from the Income Tax Department,
it is the last partnership deed of the business that was on their record. It is
the document which Narinder Pal had relied upon during his life time,
when he had filed a suit for injunction as well as criminal complaint
against respondent No.1 herein, in the same month when he had died i.e.
few days before his death.
20. The learned counsel for the respondents on the other hand has
challenged the locus standi of the petitioners on the ground that they are
not the partners in the firm and therefore have no right to claim the
appointment of the receiver. It is further stated that the entire claim of the
petitioner is on the premise of being a legal heir of late Narinder Pal, an
erstwhile partner, who ceased to be a partner on his death.
21. The learned counsel for the respondent by way of a clarification
has stated that as per the partnership deed dated 09.08.2007, to which late
Narinder Pal was a signatory, and which has not been challenged in any
proceedings till date, provides that on the death of a partner the
partnership was not to be dissolved but the remaining partners were
entitled to continue the same. The legal heirs of the deceased partner, as
per Clause 12, were entitled only to his share in the capital of the firm.
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 10
22. The learned counsel for the respondent has further stated that as per
the aforesaid partnership deed no person could be inducted as a partner
without the consent of the other partners. The respondents have never
agreed to induction of the petitioner as a partner in the firm nor has the
petitioner ever staked a claim to become a partner and no document in
that regard has been filed by the petitioners.
23. The learned counsel for the respondent has averred that the
petitioner is only entitled to the share of late Narinder in the capital of the
partnership which has already been given to the petitioner, though it is
denied by her. Even assuming the case of the petitioner to be correct for
the sake of argument, the petitioner would be at best entitled to the share
of late Narinder Pal in the capital of the firm and not induction as a
partner in the partnership firm or a right to participate in the business of
the firm.
24. The learned counsel for the respondent has contested that the
principle laid down in Section 43 of the Partnership Act is subject to a
contract to the contrary. The partnership deed dated 09.08.2007 entitles
the respondents to continue with the partnership firm on the death of late
Narinder Pal. Continuation of the partnership entitles the respondents to
use the partnership assets for the partnership business and hence the
arguments of the petitioners that the respondents have acted dishonestly
and fraudulently are false and denied.
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 11
25. Relying on the judgment rendered by this court in Mohinder Nath
vs. Narender Nath 1998 (45) DRJ 296 it is argued by the learned counsel
for the respondent that a receiver can be appointed only if the partnership
property is in the danger of being wasted. No such averments have been
made by the appellant nor has any ground has been made out for the
appointment of a receiver. For the appointment of a receiver some
imminent danger or emergency or loss of property demanding immediate
action must be shown. The element of danger is an important
consideration which is absent in the present case. It is further stated that
an order appointing a receiver cannot be made where it has the effect of
depriving the defendant of de-facto possession since such action will
cause irreparable wrong. Further it is stated that it is not in every case
where an erstwhile partner approaches Court that a receiver is to be
appointed and it is necessary to allege and prove some imminent peril to
the property.
26. Further the learned counsel for the respondent has averred that Late
Narinder Pal was having only 26% share in the partnership. The
appellant cannot have a share greater than that. The respondents, who
had 74% share in the partnership even as per the case of the appellant,
cannot be restrained by a minority shareholder from carrying out
business.
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 12
27. The learned counsel for the respondent has stated that the
respondents have regularly maintained accounts, got the same audited and
filed tax returns, copies of which had been filed before this Hon'ble
Court. No irregularity in the same has been pointed out by the appellant.
In case the appellant is able to succeed in the suit filed by her, she can be
given her adequate share by way of ad interim order in the suit which
arrangement can continue till the conclusion of the trial.
28. It is the case of the respondent that the petitioner has no experience
of running a business, admittedly being a housewife. She has no interest
to run the business and is only interested in disrupting a running business
as a threat to extract an extra share in the family assets without having
any concern for the running business of the partnership.
29. It is further stated that as an interim measure, the learned trial court
has directed payment of a monthly amount to the petitioner which is
being complied with. Thus, the financial needs of the petitioner, if any,
are being adequately taken care of pending trial in the suit. This
arrangement can be continued till the final adjudication of the dispute
thereafter which the accounts can be adjusted as per the directions issued
to the parties.
30. This contention has been contested by Ms.Marwah. It has been
contended that no stone has been left unturned by the father and the two
sons to usurp the entire share and good will of the firm. It is in this
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 13
context, the sister's share is alleged to have been purchased similarly as
that of Shiv Pal. So far as the payment of Rs.20,000/- which has been
ordered by the trial court, it is alleged that the petitioner/appellant had to
literally beg for this amount from the respondent. This is despite the fact
that it is within the knowledge of the respondents that the petitioner is
undergoing the treatment of dreaded disease of cancer.
31. I have heard both the parties and have perused the documents
placed on record. It is pertinent here to note that the learned trial court
while disposing the applications under Order 39 Rules 1 & 2 vide order
dated 11.11.2009 recorded that, the respondent Nos.1, 3 & 4 will not
create any third party interest with respect to the suit property i.e. E-23,
Connaught Place and would neither get the tenancy right transferred
exclusively in their names. Further in the impugned order dated
09.06.2010 while disposing of the two applications (Order 40 Rule 1 CPC
for appointment of receiver and Section 151 CPC for monetary relief to
the petitioners) of the petitioners the Hon'ble Court directed the partners
of the reconstituted firm to pay alleged admitted capital amount of Rs.3,
63,057/- in the court to the petitioners, which has not been accepted by
them. The learned court held that if the amount would not be deposited,
it would be assumed that the alleged reconstituted firm is using the capital
and then it would be a fit case of appointment of receiver and once the
receiver is appointed, the court would be in a position to ascertain the
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 14
actual income of the business and the amount to which the petitioners
would be entitled monthly from the business.
32. I am of the considered view that the trial court has failed to
appreciate that Mohinder Pal in connivance with his sons is using
exclusively the good will of the firm which has been built over the period
of more than 75 years by the family members jointly and the invaluable
tenancy rights of the business, detrimental to the interest of other family
members an depriving the petitioners of their legitimate legal rights.
33. It appears that the trial court fell into an error by not appreciating
the law laid down under Section 37 of the Indian Partnership Act, 1932,
wherein it has been categorically stated that where any member of a firm
dies then the surviving or continuing partners of the business carry on the
business of the firm with the property of the firm without any final
settlement of accounts as between them and the outgoing partner, then in
the absence of a contract to the contrary the outgoing partner or his legal
representatives/heirs are entitled to such share of the profits made since
he ceased to be a partner as attributable to the use of his share of the
property of the firm along with an interest of 6% per annum.
34. The share of the petitioner/appellant in the business is not a
disputed fact. It is also true and correct that the respondents have been
enjoying the fruits of the business to the exclusion of the petitioners for
over more than six years since the death of Narinder Pal and the factum
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 15
of which has not been considered by the trial court while rendering its
findings. The trial court has therefore erroneously taken into
consideration only the so called capital investment and directed the
payment of the same to the legal heir namely petitioner-appellant as if she
does not get any share in the good name of the firm. It is not disputed by
any of the parties that the business is being run under the name and style
of 'Oriental Fruit and Marts Store' for the last more than 75 years and this
period is sufficiently long for the firm to generate tremendous goodwill.
It has been contended by the learned counsel for the petitioners that the
Oriental Fruit and Marts Store is selling exotic fruits, vegetables and
chocolates and its clientele consist of number of embassies and high end
consumers. Thus it is making considerable profits.
35. Since this aspect was not taken note of by the trial court, the
deposit of Rs.3,63,057/- or so made by the respondents could not be
deemed to disentitle the appellant-plaintiff from any share in the profit of
the firm. She is legally entitled to the ad interim order for payments and
deposit during the pendency of the suit by the respondent is of no
consequence.
36. The overall conduct of the respondents is suspicious and casts a
doubt on their designs and the fabrication of the alleged documents
placed on record before the trial court by them. The local commissioner
in his report has accused the respondents of obstruction and causing
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 16
hindrance in carrying out the inspection. Till date the account books i.e.
ledgers and cash books have not been submitted before the court. Further
the cases filed by late Narinder Pal against Mohinder Pal and Shiv Pal's
denial with respect to the alleged retirement deed, makes the defence of
the respondent a farfetched story.
37. Vide order dated 11.03.2011 this court has directed the respondents
no.1, 3 and 4 to pay Rs 20,000 per month to the appellants/petitioners. It
is shown that from the date of this order, the respondents have been
deliberately defaulting in the payment of the said amount timely. When
no payments were received for the month of Nov, Dec 2011 and January
and February 2012, the appellants were compelled to issue a legal notice
dated 03.02.2012. After the receipt of the said notice the arrears were
cleared, and on 27.04.2012 that is next date of hearing the court once
again passed an order directing the respondents to make the payment for
the month of March on that day itself and for the month of April, 2012 by
07.05.2012. Despite the directions of the court the cheques were belatedly
issued and dishonoured. The appellants in the application under S.151
CPC before this court have prayed for striking off the defence of the
respondents on the aforesaid grounds. On notice of the said application
the arrears were cleared till February 2013.
38. The learned counsel for the respondents relying on the judgment
rendered by this court in Mohinder Nath and Ors (supra) have contested
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 17
that instant case does not meet the conditions required to be fulfilled in
order to make it a fit case for the appointment of the receiver.
39. In my considered view, this contention of the respondent holds no
water as the petitioner has been able to prime facie show a case of
adverse and conflicting claims to the property. Further the learned
counsel for the petitioners has stated that the petitioner-Saroj Arora is a
widow with no other source of income and has been diagnosed with
cancer. It was further stated that the dishonest conduct of the respondent
leaves no room for doubt that they have no inclination to give the
petitioners their rightful share.
40. The respondent did not cooperate with the local commissioner and
further did not permit him to inspect the books of accounts, ledgers, cash
book so as to prevent the correct picture from being reflected. The
contention of the learned counsel for the respondent that accounts are
being audited regularly and income tax returns being filed is no excuse.
41. The facts and figures of the accounts are not always reflective of
the true and correct extent of the financial health. These figures and
calculations can be easily manipulated. Therefore, I do not attach any
credence to the same. Since the respondents herein, have themselves
admitted the right of the petitioner/appellants to the extent of the
shareholding of late Narinder Pal the arguments of the respondents as per
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 18
the finding rendered in Mohinder Nath & Ors. (supra), that the right of
the petitioners must be reasonably clear and free from any doubt.
42. The respondent's plea that they had deposited the capital amount
with the court and consequently there was no obligation to pay any
amount or that they had become owners of 100% share in the firm, holds
no water. This is because of the fact that even if it is assumed for the sake
of arguments that the partnership stood dissolved even then the appellant
is entitled not only to the capital investments and share in the profits, but
also share in the goodwill and tenancy rights. As has been pointed out
hereinabove, 'M/s Oriental Fruits and Marts' has attained reputation and
goodwill for the past 75 years. The appellants could not be deprived of
their share in the goodwill. This will have to be adjudicated by the trial
court.
43. It was contested by the respondents that an order appointing a
receiver cannot be made where it has the effect of depriving a defendant
of a 'de-facto' possession since that might cause irreparable wrong.
44. In the instant case the conduct of the respondents is suspicious and
questionable and they have been in exclusive possession of the assets of
the business and have dishonestly deprived the petitioners of their rights
thereby causing the petitioners irreparable loss. It has been observed by
the courts in the judgments relied by the parties that the power of the
appointment of receiver is a discretionary power and the court must look
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 19
at the conduct of the party before passing any such order. In case there is
a threat or danger to the property as it is being wasted or pilfered etc.
receiver ought to be appointed. Though it is a fit case for appointment of
a receiver, but I am purposely resisting the same on account of the fact
that the respondents are running the business even if to the detriment of
the appellant/plaintiff's interest but appointment of receiver would be an
additional burden on all the parties so far as financial implications are
concerned. Therefore in the hope that the respondents would mend their
ways after the passing of this order, I feel that the interest of the
appellant/petitioner can be sufficiently protected. I may also point out
that during the course of hearing on the basis of assertions that the
respondents were drawing a very meagre profit of Rs.25,000-30,000/- at
best per month for each of the three brothers subject to their adjustment at
the end of the financial year. A suggestion was given to the respondents
to test their bona fides. The suggestion was that they should let the
appellant/petitioner along with the other legal heirs of the
deceased/partner along with the other legal heirs of the deceased/partner
be permitted to run the show while as the respondents sitting at home
would be assured of a sum of Rs.30,000/- per partner every month subject
to the sharing of the profits at the end of the financial year. Instead of
answering in affirmative or in the negative, the counsel for the
respondents started giving lame excuses by showing that the
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 20
appellant/petitioner being a lady would not be able to get up early in the
morning and go to the 'Mandi' for the procurement of vegetables and
fruits and it will be very difficult for her to run the show. The learned
counsel also started counting other hurdles which she may encounter
being a lady instead of accepting or rejecting the offer. This clearly
reflected the mala fides on the part of the respondent that as a matter of
fact they want the show to be run by them to the detriment of the
appellant/petitioner at all costs. This cannot be permitted to be done.
Accordingly, though I would have liked to appoint a receiver, I have
instead preferred to increase the payment of the ad- interim amount to the
appellant/petitioner during the course of pendency of the suit subject to
the final outcome of the suit.
45. I accordingly direct that from the date of application till the date of
passing of this order, the appellant/plaintiff should be paid Rs.50,000/-
per month and from the month April, 2015 onwards, the appellant shall
be paid a sum of Rs.75,000/- per month. Since the amount of Rs.20,000/-
per month has already been paid by the respondents to the appellant
during all this period, therefore, from the date of application till the
31.03.2015, the appellant shall pay the balance amount of Rs.30,000/- per
month. This amount shall be paid latest by 31.12.2015 in two
instalments.
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 21
46. The appellant/petitioner shall give in writing the account number to
the respondents for the purpose of depositing the aforesaid amount. The
first instalment shall be payable within a period of two months from
today and the second instalment within a period of six months from the
date of first payment but not later than 31.12.2015. So far as the payment
of Rs.75,000/- for April, 2015 onwards is concerned, the same shall be
paid on or before 7th of each succeeding English calendar month and in
the event of aforesaid not being paid or credited to the account of the
appellant/petitioner before 7th of each succeeding English calendar
month. The respondent shall be under an obligation to pay a sum of
85,000/- in case the payment is made up to 15th and after 15th a sum of
Rs.1,00,000/- per month. This enhancement in the amount has been
ordered by this court only to keep a check on the respondents so that
payment is made latest by 7th of English calendar month. In case the
respondents do not comply with the aforesaid order or dissipate or deal
with property in question by any act or conduct which may be detrimental
to the interest of the legal heirs of the other partners during the
adjudication of the suit, the appellant/petitioner shall be free to file any
application including the application for appointment of a receiver afresh
as may be deemed fit.
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 22
47. With these observations, the order of the trial court stands modified
to the extent the same is passed hereinabove. The trial court is hereby
directed to deal with the matter expeditiously.
48. Expression of any opinion hereinabove shall not be deemed to be
an expression on the merits of the case.
V.K. SHALI, J.
April 27, 2015/ad
FAO No. 320/2010 & CM (M) No. 1105/2010 Page 23
