M/S Ambika Rice Industries vs Sri T R Venkatesh
2022 Latest Caselaw 3379 Kant

                          1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF FEBRUARY 2022

                       BEFORE

        THE HON'BLE MR. JUSTICE E.S.INDIRESH

      WRIT PETITION No.1634/2022(GM-CPC)

BETWEEN:

M/S AMBIKA RICE INDUSTRIES
REPRESENTED BY ITS MANAGING PARTNER
SRI K S SATHYANARAYANA SETTY
HAVING ITS OFFICE AT NO.155
INDUSTRIAL SUBURB
2ND STAGE, 5TH MAIN
YESHWANTHPURA
BENGALURU 560022.
                                       ...PETITIONER
(BY SRI.S R SHINDE, ADV.(PH))

AND

1 . SRI T R VENKATESH
    S/O LATE RAMCHANDRA SHETTY
    AGED 67 YEARS
    OCC: BUSINESS

2 . SRI K R ASHOK KUMAR
    S/O LATE RAMACHANDRA SHETTY
    AGED 64 YEARS
    OCC: BUSINESS

3 . K R RAJASHEKAR
    S/O LATE RAMACHANDRA SETTY
    AGED 62 YEARS
                           2



   OCC: BUSINESS

4 . SMT. S LAKSHMI
    D/O LATE RAMACHANDRA SETTY
    AGED 69 YEARS
    OCC: BUSINESS

   ALL ARE R/AT NEAR TUDA OFFICE
   2ND CROSS, 3RD BLOCK
   KUVEMPUNAGAR
   TUMKURU 572102.
                                          ...RESPONDENTS
(BY SRI.K.S. RAGHUKRAM, ADV. FOR C/R)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER ANNX-A PASSED ON I.A.NO.III,
DTD. 23.12.2021, IN COM.O.S.NO. 502/2021 BY THE
COURT OF COMMERCIAL COURT, CCH.NO.87 LXXXVI,
ADDL. CITY CIVIL AND SESSION JUDGE BENGALURU
BEING ILLEGAL AND AGAINST LAW AND PLAINT FILED BY
RESPONDENTS BE REJECTED IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.

     THIS   WRIT   PETITION   COMING    ON   FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:

                        ORDER

This writ petition is filed by the defendant

against the order passed on I.A.No.III in

Com.O.S.No.502/2021 by the Court of Commercial

Court, Bengaluru dismissing I.A.No.III.

2. The plaintiffs have filed suit against the

defendant to reconstruct the partnership of M/s.

Ambika Rice Industries by impleading the plaintiffs in

place of their father / Late. K. S. Ramachandra Setty,

founder and first partner of M/s. Ambika Rice

Industries and further, the plaintiffs sought for

relevant direction to the defendant - Firm to furnish

the Statement of Account, Balance Sheet and such

relevant documents of M/s. Ambika Rice Industries.

After service of notice, the defendant entered

appearance and filed detailed written statement. In

the meanwhile, the defendant also filed an application

under Order VII Rule 11 (a) and (d) read with Section

151 of CPC, seeking an order for rejection of the plaint

on the ground that the suit is barred by limitation as

well as the plaintiffs have no cause of action and locus

standi to institute the suit. The said application was

resisted by the plaintiffs by filing an objection. The

trial Court, after considering the material on record,

by order dated 23.12.2021, rejected I.A.III filed by

petitioner herein/defendant under Order VII Rule 11

(a) and (d) read with Section 151 of CPC. Being

aggrieved by the same, the defendant preferred this

writ petition.

3. I have heard Sri S. R. Shinde, learned

counsel for the petitioner.

4. It is the submission of the learned counsel

Sri S. R. Shinde that the trial Court has not properly

considered the scope and ambit of order VII Rule 11

(a) and (d) read with Section 151 of CPC and has

erroneously rejected the said application, which has

caused miscarriage of justice to the defendant. He

further contended that as per the averments made in

the plaint, the father of the plaintiffs was partner of

the M/s. Ambika Rice Industries and the said Firm was

registered on 22.03.1982 and he died on 24.05.1990.

He further contended that the mother of the plaintiffs

died on 02.05.2010 and the notice was issued by

respondents on 22.04.2021 after inordinate delay of

nearly 23 years. The same has not been considered

by the trial Court while rejecting I.A.III filed by the

defendant.

5. In order to buttress his argument, he

referred to the judgment of Hon'ble Apex Court in the

case of NUSLI NEVILLE WADIA v. IVORY

PROPERTIES AND ORS. reported in AIR 2019 SC

5125. It is admitted by the plaintiffs in the plaint, the

said aspects cannot be considered as a disputed fact

and therefore, the plea of limitation raised by the

defendant has been considered as a preliminary issue

in the suit.

6. Having heard the learned counsel for the

petitioner, undisputedly, the plaintiffs have filed suit

for reconstitution of the partnership of M/s. Ambika

Rice Industries by impleading them as legal

representatives of the founder partner. The petitioner

herein has stated that the issue relating to the

limitation raised in the written statement has to be

considered as preliminary issue since the suit is filed

on 07.08.2021, assailing on the issue of Limitation.

According, to the defendant, the cause of action arose

on 09.05.1980. Mr. S. R. Shinde, learned counsel

appearing for the petitioner contended that the trial

Court has not properly appreciated the submission

made in the plaint and accordingly, he submitted that

the impugned order requires interference by this

Court.

7. The plaintiffs has sought for the following

relief in the plaint:

"a.   Directing      the         Defendant          Firm     to
      reconstitute           the       Partnership           of
      M/s.Ambika           Rice        Industries',         by

impleading the Plaintiffs in place of their father, Late Sri.K.S.Ramachandra Setty, the founder first partner of 'M/s Ambika Rice Industries' and further be pleased to direct the defendant firm to furnish the Statement of Accounts, Balance Sheet and all other relevant documents of 'M/s.

      Ambika         Rice           Industries',           from
      09.05.1980 to till date.

b.    Grant Permanent Injunction restraining

the defendant firm from alienating the suit schedule property in manner;

c.    Directing the defendant firm to disburse
      the   profit    standing        in   the      name     of
      Founder        First         Partner,         Late    Sri

K.S.Ramachandra Setty partner to the plaintiffs equally.

d.    Grant costs of the suit;


e.    Grant such other relief/reliefs as this
      Hon'ble     Court          deems        fit     in    the
      circumstances of the case."

8. It is also forthcoming from the plaint at

Para (n) that the defendant, who is in the control of

the Firm i.e. M/s. Ambika Rice Industries, prima-facie

with an intention to make unlawful gains, has rejected

the plea made by the plaintiffs to come on record as

legal heirs of the partner / K. S. Ramachandra Setty,

who is the founder of the Firm. It is also forthcoming

from the plaint that the plaintiffs are entitled for 18%

share of profits in the partnership Firm and therefore,

looking into the averments made in the plaint, the

trial Court has rightly rejected the application insofar

as the plea raised by the learned counsel appearing

for the petitioner that the question of limitation has to

be considered as preliminary issue and relied upon the

judgment of Hon'ble Apex Court in the case of

NUSLI NEVILLE WADIA (Supra). I am of the view

that the Hon'ble Apex Court in the aforementioned

decision has observed that the mixed question of law

and fact cannot be decided as preliminary issue. The

Full Bench of this Court in B.H.UDAYA PAI v.

VAMANA NAYAK and OTHERS reported in ILR

2018 KAR 5095 has held that the plea relating to

jurisdiction aspect has to be considered as preliminary

issue and since the lis between the parties in this case

is relating to the mixed question of limitation, then the

said aspect cannot be considered as preliminary issue.

9. In that view of the matter, following the

law declared by the judgment of this Court as well as

the decision of the Hon'ble Apex Court referred to

above, I am of the view that the trial judge is justified

in rejecting I.A.III.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

HA/-