R. ARULSIGAMANI Vs. PAULDURAI ALIAS PERUMAL

JUDGEMENT

(1.) IN this revision, the petitioners questioned the correctness of the order dated 16.04.2002 made in I.A. No. 200 of 1993 in O.S. No. 39 of 1993 on the file of the II Additional Subordinate Judge's Court, Tirunelveli.

(2.) IN order to resolve the issue, the brief facts of the case are as follows : The petitioners together with defendants No. 1, 4 and 5 formed a partnership firm in the name and style of 'Kumari Minerals', which engaged in mining and dealing in Mineral called garnet sand. The firm obtained mining lease in G.O.Ms. No. 700, Industries Department, dated 15.05.1974 for the purpose of mining, originally for a period of twenty years and subsequently the period has been renewed. Originally, the firm Kumari Minerals was started on 12.02.1973 with two partners viz., defendants 1 and 2 and the firm was duly registered with the Sub -Registrar, Kanyakumari. The very purpose of formation of partnership is the condition contained in mineral concession rules to the effect that the lease would be granted only in the name of a registered firm or registered body corporate. Subsequent to the registration of firm, several partners were inducted and several other original partners were retired. Necessary documents were executed for induction as well as retirement of partners of the firm from time to time. The core contention of the petitioners/plaintiffs in the suit is that the respondent/first defendant is acting against the interest of the partnership firm by inducting partners and forming separate partnership to do the very same business with one V.V. Minerals, which has been arrayed as the 17th defendant and virtually causing loss to the partnership firm. The induction of the new partner has been characterised as fraud played on the partnership and for that purpose, the Registrar of the firm has been arrayed as a party and it has also been contended that the first defendant on behalf of the firm has applied for and obtained permit for transportation of the quarried minerals and exported the same to the detriment of the partnership firm. With these pleadings, the suit has been filed for a declaration declaring the entry of new partners and the change in constitution of 'Kumari Minerals' are void and restraining defendants No. 2, 3 and 6 to 11 from in any manner representing or claiming as partners of 'Kumari Minerals' and for further declaration that the plaintiffs and defendants 1, 4 and 5 are the lessees under the lease deed dated 12.11.1974 executed pursuant to the grant of lease by the Government in G.O. Ms. No. 700 and consequently restraining the statutory defendants 12 to 15 from granting mining permit or movment permit of the mineral quarried and directing defendants 1 to 11 to account for the transactions of the mining of the quarry. The said suit was filed in February, 1993.

(3.) THE respondent's further case is that except Mrs. Chitraboopathy Animal, the third respondent in the application, all other respondents including the petitioners' Arulsigamani and Mani instituted a suit in O.S. No. 213 of 1989 on the file of Sub -Court, Nagercoil against the respondent herein. The said Chitraboopathy Ammal, got impleaded herself as a party to the said suit. The suit has been filed on the ground that the first defendant/the respondent herein acted against the interest of the firm with the very same allegations as that of the present suit and sought for an injunction restraining the respondents from acting against the interest of the firm. Along with the suit, the petitioners also filed an application for injunction. The suit has been subsequently transferred to the file of the Sub -Court, Padmanabhapuram and re -numbered as O.S. No. 16 of 1990. In that suit, the respondent herein filed an interlocutory application in I.A. No. 153 of 1990 raising the very same contentions that are raised in the present application. The petitioners resisted that application contending that there is no arbitration clause. After elaborate arguments, the Sub -Court found that the arbitration clause contained in the deed dated 01.10.1979 is binding on the parties and stayed the suit. That order has become final since the same has not been agitated further before any other competent Court. Incidentally the interim injunction application filed along with the said suit was also dismissed. Subsequently, for the very same reason, the suit in O.S. No. 16 of 1990 was also dismissed against the petitioners. Even that dismissal has not been challenged by the petitioners.