NARAYANAN NAMBOODIRI Vs. M. P. VARGHESE

JUDGEMENT

(1.) 3rd respondent in O. P. 2693 of 1990 is the appellant. His father Anujan Namboodiripad and first respondent were partners of a firm named 'Periyar Oil Mills'. The mill was established in the Mini Industrial Estate at Sreemoolanagaram. Each of the partners was having 50 per cent share in profits and loss. The mill was running at a loss. A deed of dissolution was executed by the partners on 2nd November 1987 by which first respondent took over the assets and liabilities. As per the decision of the Supreme Court in Civil Appeal 2241 of 1987 it was ' found that the partnership firm was eligible for a refund of Rs. 3,68,977.58 paid by way of sales tax. The assessing authority issued refund orders as per Exts. P-2 to P-4, On ' the basis of the dissolution deed first respondent claimed the amount. The assessing authority directed him to furnish the names of the legal heirs of the deceased partner. That proceeding Ext. P-6 was challenged in the Original Petition and the reliefs asked for are:

(2.) The learned Single Judge after hearing both sides allowed the writ petition, quashed Ext. P-6 and directed the first respondent, the Assistant Commissioner of Sales Tax, Special Circle, Mattancherry to refund the amount due under Exts. P-2 to P-4 to the petitioner as expeditiously as possible and in any event within two months from the date of receipt of a copy of the Judgment. This appeal is against that decision.

(3.) The claim of first respondent petitioner in the Original Petition was based on the dissolution deed entered into between him and the other partner Sri Anujan Namboodiripad. The refund orders Exts. P-2 to P-4 are seen to have been issued in the name of the firm 'Periyar Oil Mills'. The dissolution deed was exhibited as Ext. P-1. The learned Single Judge observed that prima facie deceased partner Anujan Namboodiripad cannot claim any share in the refund in view of the following clause in the deed of dissolution. "That the assets and liabilities of the partnership firm have been taken over by party No. 1 (the petitioner) with effect from 1st November 1987". The Judge was also not impressed by the argument that the Original Petition is liable to be dismissed for non joinder of the other legal representatives of Anujan Namboodiripad. The court was aware of the claim raised by the heirs of Anujan Namboodiripad. On this point the court observed that this can be decided only after taking evidence and the question was left open for consideration in appropriate proceedings.