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Raman Kapoor Vs. Government of Nct Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberCW No. 3332/2001 and CM 5854/2001
Judge
Reported in2002VAD(Delhi)217; 98(2002)DLT135; 2002(63)DRJ678
ActsIndian Partnership Act - Sections 63, 63(1), 64, 65 and 70; Constitution of India - Article 226
AppellantRaman Kapoor
RespondentGovernment of Nct Delhi and anr.
Appellant Advocate Sanjay Bansal, Adv
Respondent Advocate Anusuya Salwan and ; Harish Malhotra, Advs.
DispositionPetition dismissed
Cases ReferredDurga Prosad Sarwagi and Ors. v. Registrar of Firms
Excerpt:
.....before the arbitrator--issue pending arbitration--disputed question of facts--not entitled to a writ.partnership act, 1932 - section 64 & 70--rectification of alleged mistake--writ petition seeking quashing of order--petitioner claims the notice in form v to be a forged one and the dissolution deed not executed--other partners claim the execution--admitted his signatures before the arbitrator--issue pending arbitration--disputed question of facts -not entitled to a writ.;in the instant case before us, there is no such apparent illegality or contradiction. the present case is simply one where the petitioner claims the notice in form v to have been a forged one and the dissolution deed not executed. the other partners claim that it was duly executed. further, the petitioner in the..........case in the present writ petition. in the cited case, the division bench found that the notice of dissolution had been given on 30.8.1961 by one manik chand sarvagi to the effect that the firm stood dissolved with effect from 11.4.1954. the court found that as per the records of the registrar of firms itself, the said manik chand had retired on 14.8.1958. accordingly, a notice could not have been given on 30.8.1961 by a person, who had retired on 14.8.1958. further, if the partnership stood dissolved on 11.4.1954, then manik chand sarvagi could not have continued as a partner as per the registrar's own record till 14.3.1958. the division bench, thereforee, found that there were inherent contradictions in the notice as given and the record maintained by the registrar of firms,.....
Judgment:

Manmohan Sarin, J.

1. The petitioner has filed the present writ petition seeking quashing of the order dated 3.1.1995, recording the retirement of the petitioner w.e.f. 1.4.1992 or otherwise direct the Registrar of firms of respondent No. 1 to rectify Under Section 64 of the Indian Partnership Act (hereinafter referred to as 'the Act') the alleged mistake as done by him and further to penalise the other partners of the firm for their act of forgery and furnishing false particulars, under Section 70 of the Act.

2. The factual matrix of the case may be briefly noted to the extent it is relevant. The petitioner claims that he is a partner in the partnership firm in the name of M/s. Kapoor Sons and Co., along with respondent No. 2 Mr. O.P. Kapoor and other partners.

The writ petition has its origin and genesis in family acrimony. The petitioner is the son of respondent No. 2 and other partners are his brother. Petitioner claims that he is also a partner in other family concerns and firms, such as Continental Films and M/s. Rupas International, which own various other assets. Petitioner claims to have been looking after the business of partnership firm in Columbia. Writ petition has several averments with regard to the petitioner looking after the family business and interest in Columbia. However, the same are not relevant to the issue in the present writ petition.

3. The petitioner's grievance in the writ petition is that respondent No. 2 in collusion with other partners, forged a notice of change in constitution of the registered firm by filing form V, appearing at page 21 of the paper book. The said form No. V under Section 63(1) of the Act is to the effect that the petitioner has retired from the partnership w.e.f. 31.3.1992. Petitioner denies his signature as also the execution of the dissolution deed, which is stated to have been filed with the Registrar of Firms. In the writ petition, the petitioner's claim is that the Registrar of Firms has acted on this forged document and has recorded the changes under Section 63 of the Indian Partnership Act. The petitioner thereforee seeks the quashing of the changes as recorded by the Registrar and seeks quashing of entries in Form-A as recorded by the Registrar of Firms.

4. Learned counsel for the petitioner submits that the Registrar is obliged to carry out the rectification of mistakes under Section 64 of the Act and such a direction can be given by the Court under Section 65 of the Act. Learned counsel for the petitioner submits that the Registrar has not taken any precaution or acted to verify the signatures in Form-V and compare it with the original partnership deed. He submits that there is a CFSL report to the effect that the signatures of the petitioner have been forged.

5. Respondents have filed the counter affidavit. It has been brought out in the counter affidavit that there are number of civil and criminal proceedings, which have been initiated by the petitioner against respondent No. 2 and other family members. Mr. Harish Malhotra, counsel for respondent No. 2 submits that petitioner had even filed a civil suit, wherein he had sought a declaration that the petitioner had not retired and continued to be a partner of the firm in question. During the course of the Court proceedings all the civil disputes relating to the partnership firm in question and other partnership firms and businesses were referred to the arbitration of Hon'ble Mr. Justice P.K. Bahri, a retired judge of this court. It is submitted that the proceedings before the Arbitrator are going on and evidence is being led. In the proceedings before the Arbitrator, the petitioner has raised the same contention that he did not resign from the partnership firm and his signatures have been forged on the form and Dissolution Deed. Evidence has been partly led and arguments are to go on. The very issue i.e. whether the petitioner resigned from the partnership or not is the subject matter of adjudication before the arbitrator. Respondent No. 2 in the counter affidavit claims that the Dissolution Deed was duly singed by the petitioner and in fact, the petitioner also wrote letter dated 15.2.1992, wherein he expressed the desire not to continue as a partner in the firm and requested for its dissolution. Further, by another letter dated 24.4.1992, the petitioner had sent the Dissolution Deed dated 21.3.1992 and other documents and Deeds. The respondent No. 2 claims that the petitioner has admitted before the Arbitrator his signatures on these letter but alleges them to be manipulated, as blank papers were provided by the petitioner himself to respondent No. 2.

6. The position that emerges, thereforee, is that the petitioner claims that respondent No. 2 along with other family members have forged his signatures on the Form V as well as the Dissolution Deed and filed the same before the Registrar. The petitioner also relies on police investigation as well as CFSL report to claim that the signatures are forged while respondent No. 2 claims that the petitioner has admitted his signatures on the letters dated 15.2.1992 and 24.4.1992, by which he had also expressed is desire to retire from the partnership firm and had subsequently forwarded the Dissolution Deed. It is thus clear that these are disputed questions of fact.

7. The petitioner in support of his contention submitted that the Registrar should not have acted mechanically and accepted Form V in respect of the retirement of the petitioner along with Dissolution Deed and passed the entry dated 3.1.1995, recording the petitioner's retirement. He relies on Durga Prosad Sarawagi and Ors. v. Registrar of Firms, West Bengal and Anr. : AIR1966Cal573 to urge that the writ petition as filed was maintainable and the Registrar could be directed to rectify the record by issuance of a writ.

8. Learned counsel for respondent No. 2, on the other hand, has relied on Dr. V.S. Bahal v. S.L. Kapur and Co. and Kesrimal and Anr. v. Dalichand and Ors. . The aforesaid authorities have been cited by learned counsel for respondents to support his contention that the Registrar on receipt of a notice in terms of Section 63 of the Act is simply required to make a note of the change notified and after making an entry, file the same on record.

In Kesrimal and Anr. v. Dalichand and Ors. (supra) it was held that a change in the constitution of a registered firm owing to the coming in or going out a partner or by death of a partner does not occasion the necessity of any fresh registration but all that is required is that the change thus brought about should be notified to the Registrar and it is then for the latter to make a note of it in the relevant register. The language used in Section 63 of the Act, it was permissive as it uses the word 'may' and not 'shall'. Learned counsel, thereforee, urged that the Registrar has duly carried out its function on receipt of the form V duly signed by the partners, by nothing it and making a relevant entry of the same in the record. Learned counsel for respondent No. 1 Ms. Ansuya Salwan urged that the Registrar having duly received the notice, could not be faulted with for making an entry in accordance with the Rules. In case, ultimately either in arbitration or by adjudication by the Court of law, the said intimation or dissolution deed are found to be not genuine, rectification in terms of Section 64 of the Act would be carried out. However, till the matter was subjudice before the arbitrator or under investigation, and pending in Courts, the Registrar was not obliged to make any rectification.

9. Learned counsel for the petitioner placed considerable emphasis on Durga Prosad Sarwagi and Ors. v. Registrar of Firms, West Bengal and Anr. (supra) to urge that the writ court would direct the Registrar to correct the entry and a writ petition would be maintainable. In the cited case, the learned single Judge had dismissed the writ petition filed under Article 226 of the Constitution of India holding that whether the firm was dissolved on 11.4.1954 or not, appears to be a disputed question of fact and that it was impossible for him to come to a conclusion without more, as to what the true version was, namely, whether the firm was dissolved on 11.4.1954 or was still continuing. The Judge dismissed the writ petition holding that he was disinclined to interfere with the entry made by the Registrar. The Division Bench allowed the appeal.

10. In my view, the cited case is clearly distinguishable on facts and cannot advance the petitioner's case in the present writ petition. In the cited case, the Division Bench found that the notice of dissolution had been given on 30.8.1961 by one Manik Chand Sarvagi to the effect that the firm stood dissolved with effect from 11.4.1954. The Court found that as per the records of the Registrar of Firms itself, the said Manik Chand had retired on 14.8.1958. Accordingly, a notice could not have been given on 30.8.1961 by a person, who had retired on 14.8.1958. Further, if the partnership stood dissolved on 11.4.1954, then Manik Chand Sarvagi could not have continued as a partner as per the Registrar's own record till 14.3.1958. The Division Bench, thereforee, found that there were inherent contradictions in the notice as given and the record maintained by the Registrar of Firms, which were self evident. In these circumstances, the Court held that the Registrar of Firms could not have acted illegally and in violation of Section 63(1) by making an entry of dissolution in pursuance to the notice received on 30.8.1961. Besides, the solicitors of the opposite side had protested and made a request for rectification to the Registrar, which he refused to take notice of. This was a case were a notice of dissolution of firm was being sent after the alleged event by a person who stood retired as per the record of the Registrar of firms. The aforesaid case of the Division Bench is, thereforee, clearly distinguishable on facts.

12. In the instant case before us, there is no such apparent illegality or contradiction. The present case is simply one where the petitioner claims the notice in Form V to have been a forged one and the dissolution deed not executed. The other partners claim that it was duly executed. Further, the petitioner in the correspondence and letters had expressed is desire to retire and forwarded the Dissolution Deed. Petitioner, it is claimed, has admitted his signature before the Arbitrator in the letter. This controversy, as noted above, was earlier the subject matter of a suit for declaration resulting finally in reference of the disputes to the arbitrator, a retired Judge of this Court, Hon'ble Mr. Justice P.K. Bahri, before whom the issue of petitioner's retirement from the said partnership is also pending. In these circumstances, the petition raised highly disputed questions of fact, which are under adjudication and the petitioner is not entitled to the issuance of a writ, as prayed for.

13. The writ petition is dismissed.


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