Madras High Court

Balavignesh S vs Seshasayee. R on 11 January, 2022

                                                                   C.S.190 of 2021

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              Dated :11.01.2022

                                                    Coram:

                          THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                              C.S.No.190 of 2021

                     Balavignesh S,
                     S/o.Mr.Subramani P
                     No.5, 3rd Cross Street, Ramesh Nagar
                     Tambaram West,
                     Chennai-600 045.                                .. Plaintiff

                                                   /versus/

                     1. Seshasayee. R,
                        S/o. Mr.Raghavachari
                        Quantas Trinity Apartments
                        #18, 2E, 2nd Floor, West Road
                        West CIT Nagar, Chennai-600 035.


                     2. Boopathy N.R,
                        S/o.Mr.Ramachandran
                        123/66, Kavya Towers
                        Velachery Road, Little Mount
                        West Saidapet, Chennai-600 015.

                     3. Gopi Krishna S,
                        S/o.Mr.Balaram
                        A3, Damayathi Apartments
                        No.17, South Mada Street
                        Nungambakkam, Chennai-600 034.


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                                                                                       C.S.190 of 2021

                     4. Chithra Seshasayee, W/o.Mr.Seshasayee R
                        Quantas Trinity Apartments
                        #18, 2E, 2nd Floor, West Road
                        West CIT Nagar, Chennai-600 035.                               ..Defendants

                     Prayer:
                           Civil Suit has been filed under Order IV Rule 1 of the Original Side
                     Rules read with Order VII Rule 1 of C.P.C. 1908 and under Section 7 of
                     the Commercial Courts Act, 2015, praying to pass a judgment and decree
                     for:-
                                  (a) A decree of Dissolution of Partnership business of the Firm,
                     MODOMINES with its Office at 123 & 66, Kavya Towers, Velachery
                     Road, Little Mount, West Saidapet, Chennai-600 015, dissolving the said
                     firm, be passed in favour of plaintiff and against the defendants with
                     effect from the date of filing of the suit;
                                  (b) A decree of rendition of accounts to be passed in favour of the
                     plaintiff and against the defendants, ordering defendants 1 to 4 to render
                     the true, complete and correct accounts of the firm, MODOMINES,
                     123/66, Kavya Towers, Velachery Road, Little Mount, West Saidapet,
                     Chennai 600 015 from 19.01.2018 till date of the suit and decree and the
                     share of the plaintiff towards capital, profits, assets, goods, properties
                     etc., of the said partnership, be ascertained and decree for the same be
                     passed.
                                  (c) A final decree for dissolution and rendition of accounts and
                     distribution of profits be passed after ascertaining the accounts, thereby
                     ascertaining the share of the plaintiff up to the tune of 25% and directing


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                                                                                    C.S.190 of 2021

                     the payment thereof to the plaintiff's;
                                  (d) A decree for appointment of a receiver to take charge of the
                     management and affairs of the firm, MODOMINES and to audit the
                     accounts of firm, MODOMINES from 19.01.2018 till date of suit and
                     decree and to direct the assets of the firm, MODOMINES to be valued
                     and realised, etc; and to wind up the affairs of the firm, MODOMINES in
                     accordance with law;
                                  (e) A decree of permanent injunction restraining the defendants,
                     their men, agents, servants and persons claiming through them from
                     dealing with all the properties of the partnership firm, MODOMINES in
                     any manner, by selling, mortgaging or transferring the assets of the firm,
                     MODOMINES and collecting the dues of the firm, MODOMINES from
                     its debtors etc,. till the receiver is appointed by this Court and he assumes
                     control of the assets of the firm, MODOMINES;
                                  (f) the costs.
                                  For Plaintiff :   Mrs.Revathi Manivannan
                                  For Defendants    :    Mr.V.P.Sengottuvel, Senior counsel
                                                         for Mr.P.S.Prabu
                                                         ------
                                                      JUDGMENT

(The case has been heard through Video Conferencing)

This suit was filed by the plaintiff seeking for a decree for

dissolution of partnership firm, rendition of accounts and other

consequential reliefs.

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2. During the pendency of the suit, the parties were able to arrive at

a settlement and the terms of settlement was reduced to writing and a

joint memo of compromise has been filed along with the deed of

retirement and reconstitution of partnership. The memo of compromise

has been signed by all the parties and their respective counsel.

3. The terms of joint memo of compromise are extracted hereunder:

'2. Subject to the terms and conditions agreed hereunder, the plaintiff has agreed to retire from the Firm "MODOMINES" with effect from the date of execution of a Deed of Retirement. The plaintiff in lieu of his retirement and towards full and final settlement of all claims, including but not limited to mismanagement and misappropriation, or any other new or additional claims of whatsoever in nature and quantum that the plaintiff may presently have or may rise in future against the Firm or the defendants, shall be entitled to a sum of Rs.28,00,000/- (Rupees Twenty Eight Lakhs Only) towards full and final settlement sum.

3. The Firm has on this day paid the above said full and final settlement sum of Rs.28,00,000/- (Rupees

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Twenty Eight Lakhs Only) to the plaintiff herein vide a Demand Draft dated 10.01.2022 bearing No.505259 drawn on ICICI Bank, CIT Nagar Branch, Chennai, in the name of the plaintiff herein. The above said sum has been paid by the Firm from and out of the funds brought in by the 1st defendant into the accounts of the Firm. The plaintiff acknowledges the receipt of the said full and final settlement amount and hereby discharges the Firm and the Defendants of any further payments and claims of whatsoever in nature thereof for the past, present or in future. The plaintiff in lieu of receipt of the above said full and final settlement sum towards all his claims against the Defendants and the Firm has on this day executed a Deed of Retirement and Reconstitution of the Partnership thereby confirming his retirement from the Firm.

4. The plaintiff covenants to withdraw all actions, including but not limited to Police compliant dated 04.05.2021, all other complaints or suits of whatsoever in nature, pertaining to initiating or continuing civil or criminal actions/proceedings against the Firm or the Defendants. The plaintiff and the Defendants mutually agree for disposal of this suit by recording the terms of compromise.

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5. The plaintiff shall irrevocably release, waive and discharge any and all actions, proceedings, claims of whatsoever in nature, counter claims, rights, demands and set-offs, in any and all jurisdictions, whether or not presently known in fact or under the law of any jurisdiction, whether arising in law or in equity, and whether arising in contract, tort or otherwise, that he ever had, may have or hereafter can, shall or may have against the Firm or the defendants.

6. The plaintiff, shall have no share, right, title or interest or claim of any nature whatsoever to or in the said partnership firm or business or assets or its name or goodwill or its ERP software or its properties, whether tangible or intangible, including the receivables and outstanding etc., whatsoever and wheresoever, with effect from the date of constitution of the Firm. The plaintiff specifically confirms that as agreed in the Addendum dated 07.03.2018, the ERP software - MODOMINES is the asset of the Firm and he shall hereinafter have no right, title, interest or claim of whatsoever in nature over the said software or its rights and further confirms that he shall neither put or offer it to use nor reproduce the said software and its materials in any manner either directly or indirectly.

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7. The plaintiff covenants that he shall have no claim or interest, either existing or may be arising in future, in the business of the Firm or in the benefits, rights, enjoyment and advantages of name, software, ERP - MODOMINES, domain, licenses, registrations, business, clients and all tangible, intangible assets, advantages, rights and incidental claim held by the Firm and it will continue to belong to the Firm and thus to the Defendants.

8. The plaintiff doth hereby release the defendants and each of them from all actions, accounts, claims and demands in relation to the said partnership and from all the covenants, agreements, matters and things connected thereto.

9. The plaintiff shall not establish after the execution hereof at any future point of time any business or trade under a name that is identical or similar to 'MODOMINES' or which in any way suggests any connection with 'MODOMINES'.

10. The plaintiff covenants to the defendants that he shall not either on his own account or in association with others engage or participate directly or indirectly, whether as shareholder, director, partner, proprietor, member, agent, distributor, employee or advisor or

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consultant or otherwise, within India or outside India in whatever capacity for a period of four years from the date of execution of this Deed for whatever reasons:

a) in any business which, involves, relates to or competes with the Firm's present Business and Software;

b) establish, develop, carry on or assist in carrying on or be engaged, concerned, interested or employed in any business enterprise or venture competing with the Firm's Business;

c) solicit, canvas or entice away (or Endeavour to solicit, canvass or entice away) from the Firm's Business, any person, firm or company who was at any time a client or customer of the Firm's Business, for the purpose of offering to such client or customer, goods or services similar to or competing with those of the Firm's Business;

d) solicit, canvass or entice away (or endeavour to solicit, canvass or entice away) any of the employees including the senior employees and/or technical or sales and marketing staff from the Firm, whether or not such person would commit a breach of contract by reason of leaving service with the Firm;

e) solicit, canvass or entice away (or endeavor to

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solicit canvass or entice away) any supplier of the Firm or of any of its affiliates or use its knowledge of or influence over any such supplier to or for its benefit or for the benefit of any other person carrying on business competing with the Firm's business;

f) act as an advisor, consultant, trustee or agent for any third person who is engaged or proposes to start any business which directly or indirectly relates to the Firm's business and software or promote, start, engage in or do any business that directly or indirectly relates to the Firm's Business and software.

11. That the defendants shall be absolutely entitled to continue the business of the firm and the plaintiff covenants to not cause any hindrances to the same.

12. That the plaintiff shall be entitled for refund of Rs.1,00,000/- (Rupees One Lakh Only) paid as Court Fee in C.S.No.190 of 2021 in terms of Section 69 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 and the Defendants shall not have any objection against the same.'

4. In view of the above development, this Civil Suit is disposed of

in terms of joint memo of compromise and the deed of retirement and

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reconstitution of partnership entered into between the parties. The joint

memo of compromise shall form part of the decree. Since the parties have

arrived at a settlement and the suit was at the pre-trial stage, this Court is

inclined to permit the plaintiff for refund of the entire Court fee that was

paid at the time of filing the suit. The learned counsel for the plaintiff

shall move an appropriate application/memo seeking for refund of Court

fee and the Court fee shall be refunded. Considering the facts and

circumstances of the case, there shall be no order as to costs.

Consequently, connected applications are closed, if any.