ALKA GUPTA Vs. NARENDER KUMAR GUPTA

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree dated March 13,2009 whereby CS (OS) No. 302 of 2007, filed by the appellant, has been dismissed. The brief facts, as stated in the pleadings are as under:

(2.) VIDE partnership deed dated April 05, 2000, the appellant / plaintiff and the defendant / respondent entered into a partnership for running an educational institute under the name and style of M/s. Takshila Institute. As per the terms and conditions of partnership, the place of business of firm was to be F-19, LAC, Bhera Enclave, Paschim Vihar, Delhi u 110 087 and / or other place or places as mutually decided by the parties. The fee etc. used to be collected by defendant / respondent, who was also maintaining books of accounts and managing the affairs of the firm. The defendant/ respondent had been withdrawing money from time to time, from the accounts of the firm whereas no money, at all, was received by the plaintiff / appellant, as her share of the profit. A Civil Suit for permanent injunction was filed by the defendant / respondent against the plaintiff/appellant, her husband Shri navindu Gupta and her brother in law Shri Rajan Gupta, which was later on withdrawn on 16. 10. 2004. As a result of institution of the suit, the partnership being 'at Will', stood dissolved from the date of institution of the suit and the defendant did not have any right to use the name, style and good will of Takshila Institute'. A legal notice dated 8. 3. 05 was sent by the plaintiff / appellant to the defendant / respondent, requiring him to stop using the name 'takshila Institute' or its similar or phonetic variation. He was also called upon to render full and true account of the income and expenditure of the partnership firm. It has been further stated that during the subsisting of the partnership, the defendant / respondent had opened another institute under the name and style of'm/s. Taxila Institute at C-9/5, sector 8, Rohini, Delhi using the same photographs of students, logo, pictures etc. According to the plaintiff / appellant, the defendant/respondent is also liable to account for and pay the share of the plaintiff /appellant in the profits earned from 'm/s. Taxila Institute'. It is further stated in the plaint that the defendant / respondent was also using the goodwill of the partnership business to run other institutes in the name and style of 'takshila Institute' at Janakpuri, Ashok Vihar and Kalu Sarai, all at Delhi, and also at Dehiradoon, Uttranchal, Uttranchal, and Palampur, in Himachal pradesh. The plaintiff sought a preliminary decree for rendition of accounts, directing the defendants to render complete accounts of all money received and expenditure incurred by him in connection with the business carried out under the partnership agreement dated 5. 4. 2000 and also all the monies earned by him by using the goodwill of 'takshila Institute' at all places including the 'taxila Institute' at Rohini. A final decree with costs along with a decree of Rs. 25. 28 lacs or a higher amount as per details stated to have been given in Annexure A was also sought.

(3.) THE defendant/respondent filed Written Statement taking preliminary objection that the suit was barred by the principles of res judicata as similar dispute had already been adjudicated between the parties, vide Suit No. 16/06 titled as 'smt. Alka Gupta v. Shri Narender kumar Gupta', decided by the court of Shri Paramjit Singh, Additional district Judge on 25. 11. 2006. It has been further alleged that during subsisting of the partnership, the plaintiff and Smt. Deepa Gupta, wife of the defendant, jointly acquired immovable properties including second floor of property No. 8, Block C-9 in Sector-8, Rohini, Delhi. Since disputes arose between the parties, it was finally decided that total value of the partnership firm will be made and 50 per cent share of the plaintiff would be calculated and paid to her, and she would relinquish all her rights and claim in the institute, which will then become an absolute property of the defendant. The total value was assessed at Rs. 46. 00 lacs and it was decided that the plaintiff. will get Rs. 23. 00 lacs from the defendant and transfer all her claims in the partnership to him. A Biyana Agreement dated 29. 6. 04 was executed between the parties. The payment of Rs. 23. 00 lacs, agreed to be made to the plaintiff under the Biyana Agreement, included Rs. 21. 5 lacs against her 50 per cent share in the institute and also the transfer of her undivided half share in the second floor of property No. 8, in Block C-9 of Rohini, Delhi. The partnership stood dissolved on execution of agreement dated 29. 6. 04. Since, instead of fulfilling the terms of the agreement dated 29. 6. 04, the defendant, along with her husband Shri Narender Gupta, tried to put her locks on the institute, a Civil Suit was filed by the defendant against her. During pendency of the suit, the plaintiff executed a Sale Deed on 13. 8. 04, in view of the compromise between the parties, after receiving the entire balance consideration of Rs. 14. 00 lacs. In view of the terms and settlement of the issues, the suit was disposed of on 16. 10. 2004.