Kerala High Court

Silver Sands Residency vs Registrar Of Firms on 19 February, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

  FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                   WP(C).No.33043 OF 2019(E)


PETITIONER:

              SILVER SANDS RESIDENCY,
              BUILDING, NO.11-22-52, KANJIKKUZHY,
              S.L.PURAM.P.O., CHERTHALA, ALAPPUZHA,
              KERALA, INDIA, PIN-688523
              REPRESENTED BY IT'S MANAGING PARTNER,
              MR.V.N.BABU, AGED 60, S/O.NARASI,
              RESIDING AT VELIYIL HOUSE, THYKKATTUSSERY.P.O.,
              CHERTHALA, ALAPPUZHA, KERALA, INDIA-688528

              BY ADVS.
              SRI.V.MAHENDRANATH
              SRI.R.SYLESHWAREN NAIR

RESPONDENTS:

        1     REGISTRAR OF FIRMS,
              OFFICE OF THE INSPECTOR GENERAL OF
              REGISTRATION,
              EX-MAYOR R BALAKRISHNAN NAIR RD,
              NEAR DISTRICT COURT, VANCHIYOOR,
              THIRUVANANTHAPURAM, KERALA-695035

ADDL.   2     DHANYA BOBAN,
              AGED 39, W/O.LATE BOBAN,
              RESIDING AT VELIYIL HOUSE,
              THYKKATTUSSERY P.O., CHERTHALA,
              ALAPPUZHA, KERALA, INDIA - 688528.

              (ADDL.R2 IS IMPLEADED AS PER ORDER DATED
              02.03.2020 IN IA 3/2020 IN WPC NO. 33043/2019.

              R2 BY ADV. SRI.K.RAMANADHAN
              R1 BY GOVERNMENT PLEADER SMT. RASHMI K.M.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.33043/2019
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 19th day of February, 2021

The petitioner is a partnership firm represented by

its Managing Partner. The petitioner has approached this

Court seeking to set aside Ext.P7 order of the 1 st respondent-

Registrar of Firms whereby the application submitted by the

petitioner for change of constitution of the partnership stands

rejected.

2. The petitioner states that the Firm is involved in

Abkari business and it is a closely held partnership of family

members. One Partner Mr. Boban died and his wife

Mrs. Dhanya Boban was inducted as Partner. The said

Dhanya Boban did not attend the meetings. She was

reluctant to concede to the decisions taken by the partnership.

Consequently, a notice was issued and Dhanya Boban was

expelled from the partnership.

WP(C) No.33043/2019

3. After complying with all statutory requirements, the

petitioner applied for registration of a reconstituted Firm before

the 1st respondent-Registrar of Firms. The 1st respondent,

however, rejected the application as per Ext.P7 on the ground

that the ousted partner had filed complaint against the Firm

and that she has not signed the application for reconstitution

of the Firm.

4. The aforesaid Dhanya Boban was impleaded as

additional 2nd respondent in the writ petition. The additional

2nd respondent filed a counter affidavit stating that her

signature was forged by the writ petitioner and a fabricated

document for effecting reconstitution of the firm was made.

After the death of husband, the additional 2 nd respondent and

her children are entitled to a share of profit. The writ petition

is liable to be dismissed, contended the additional 2 nd

respondent.

5. I have heard Advocate Mahendranath V., learned

counsel for the petitioner, learned Government Pleader

Smt. Rashmi K.M. representing the 1 st respondent and K. WP(C) No.33043/2019

Ramanadhan, learned counsel for the additional 2 nd

respondent.

6. The reconstitution of the partnership is seriously

disputed by the additional 2nd respondent. According to the

writ petitioner, the existing partners have a right to oust the

additional 2nd respondent from the partnership and

reconstitute the Firm. However, the additional 2 nd respondent

will dispute the said claim and would contend that she cannot

be ousted from the partnership unilaterally.

7. Since the issue involves disputed questions of fact,

this Court will not be justified in interfering the matter and

passing any orders under Article 226 of the Constitution of

India.

In the circumstances, the writ petition is disposed of

relegating the petitioner to approach civil court or any other

appropriate forum, if the petitioner is so advised.

Sd/-

N. NAGARESH, JUDGE

aks/19.02.2021 WP(C) No.33043/2019

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 19.11.2019 OF THE FIRM ISSUED BY THE RESPONDENT

EXHIBIT P2 TRUE COPY OF THE NOTICE DT.22.10.2018 ISSUED TO THE OUSTED PARTNER

EXHIBIT P3 TRUE COPY OF THE WRIT-UP DATED 10.05.2019 ISSUED BY THE PETITIONER TO THE EXPELLED PARTNER

EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE MEETING OF THE PARTNERS OF THE FIRM HELD ON 09.05.2019

EXHIBIT P5 TRUE COPY OF THE ALAPPUZHA EDITION OF THE KERALA KAUMUDI DAILY DATED 27.05.2019

EXHIBIT P6 TRUE COPY OF FORM NO.V DT.26.10.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT

EXHIBIT P7 TRUE COPY OF THE LETTER INTIMATING REJECTION OF EXT P6 ISSUED BY THE RESPONDENT

EXHIBIT P8 DEMAND NOTICE.

EXHIBIT P8            TRUE COPY OF THE COUNTER      AFFIDAVIT
                      DATED   16-11-2020    FILED    BY   THE
                      ADDITIONAL 2ND RESPONDENT

EXHIBIT P9            TRUE COPY OF THE STATEMENT ALONG WITH

THE FORWARDING NOTE OF THE INSPECTOR SHO, CHERTHALA POLICE STATION

EXHIBIT P10 TRUE COPY OF THE OBJECTION DATED 26-

03-2019 IN OP NO.678/18 FILED BY THE 2ND RESPONDENT BEFORE THE FAMILY COURT, ALAPPUZHA WP(C) No.33043/2019

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 26-08-

2020 ON I.A.4/2020 IN O.P.(GW)678/2018 OF THE FAMILY COURT, ALAPPUZHA

EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 22-10-

2018 ISSUED TO THE 2ND RESPONDENT BY THE MANAGING PARTNER OF THE PARTNERSHIP FIRM

EXHIBIT P13 TRUE COPY OF THE FIR NO.1694/2020 DATED 25-11-2020 OF THE POOCHAKKAL POLICE STATION, CHERTHALA

EXHIBIT P14 TRUE COPY OF THE PLAINT IN O.S.35/2020 PENDING ON THE FILES OF THE COURT OF MUNSIFF, CHERTHALA

EXHIBIT P15 TRUE COPY OF THE BANK STATEMENT DATED 18-09-2020 ISSUED BY THE FEDERAL BANK, MARRARIKKULAM, ALAPPUZHA

EXHIBIT P16 TRUE COPY OF THE PHOTOGRAPH SHOWING THE PETITIONER AND THE 2ND RESPONDENT AND THE CHILDREN SHOPPING AT 'TRENDS', CHERTHALA.

RESPONDENTS' EXHIBITS:

EXHIBIT R1(a) A COPY OF THE INTIMATION DATED 28.10.2019.

EXHIBIT R3(a) THE TRUE COPY OF THE DEATH CERTIFICATE OF THE HUSBAND OF THE PETITIONER ISSUED FROM THYCATTUSSERY GRAMA PANCHAYATH DATED 18.05.2016.

EXHIBIT R3(b) THE TRUE COPY OF THE JUDGMENT IN WPC 40461/2017 BY THIS HONOURABLE COURT.

EXHIBIT R3(c) THE TRUE COPY OF THE JUDGMENT IN OP(G&W) 678/2018 BEFORE THE FAMILY COURT, ALAPPUZHA DATED 20/02/2020.

EXHIBIT R3(d) THE TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 1ST RESPONDENT HEREIN DATED 05.04.2018.

WP(C) No.33043/2019

EXHIBIT R3(e) THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 24.06.2019.

EXHIBIT R3(f) THE TRUE COPY OF THE REPLY FILED BEFORE THE 1ST RESPONDENT HEREIN DATED 28/10/2019.

EXHIBIT R3(g)         THE TRUE COPY OF THE REPLY FROM THE
                      1ST    RESPONDENT'S     OFFICE    DATED
                      29.02.2020.
EXHIBIT R2(a)         THE TRUE COPY OF THE DEATH CERTIFICATE

OF THE HUSBAND OF THE PETITIONER ISSUED FROM THYCATTUSSERY GRAMMA PANCHAYATH DATED 18.05.2016 EXHIBIT R2(b) THE TRUE COPY OF THE JUDGMENT IN WP(C)40461/2017 BY THIS HONOURABLE COURT EXHIBIT R2(c) THE TRUE COPY OF THE JUDGMENT IN OP(G&W) 678/2018 BEFORE THE FAMILY COURT, ALAPPUZHA DATED 20/02/2020 EXHIBIT R2(d) THE TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 1ST RESPONDENT HEREIN DATED 05.04.2018 EXHIBIT R2(e) THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 24.06.2019 EXHIBIT R2(f) THE TRUE COPY OF THE REPLY FILED BEFORE THE 1ST RESPONDENT HEREIN DATED 28/10/2019 EXHIBIT R2(g) THE TRUE COPY OF THE REPLY FROM THE 1ST RESPONDENT'S OFFICE DATED 29.02.2020