KAILASH PATI SUGAR INDUSTRIES KAPSENDA Vs. KAMLA GUPTA

JUDGEMENT

(1.) THESE two appeals by defendants are directed against the same order dated 21-11-1988 passed by the Civil Judge, Shahjahanpur, allowing the application no. 6 Ga of the plaintiff respondent no. 1 Smt. Kamla Gupta, wife of Sri Basdev Gupta, for grant of temporary injunction and application no. 28 Ga for appointment of Receiver in a suit filed by plaintiff respondent no. 1 for permanent injunction restraining the defendants from interfering with the joint possession, control and management of the firm Parag Sugar Factory, a partnership firm, having its plant at village Kapsenda, district Shahjahanpur and for dissolution of the firm and for accounts, on the allegations that the firm was carrying on the business of sugar manufacturing, and on the death of Smt. Parag Devi, the firm was not to be dissolved, rather her legal representatives defendant nos. 3, 5 and 6 being her sons, became partners. There was a heavy liability of loan (i. e. about four lacs) of the Allahabad Bank, Shahjahanpur and the firm was unable to pay the same. Defendant no. 2 Sri Kavindra Goel (the present appellant in Appeal no. 1089) who was an active partner of the firm, promised to pay the loan of the Bank amounting to Rs. 4 lacs and pay other liabilities excluding the sales tax etc., and under that assurance he got the signature of the plaintiff on the so called deed of dissolution dated 10-9-1986, which was at the best an agreement to dissolve the firm. The Allahabad Bank has filed a suit for recovery of its huge dues of about Rs. 5 lacs against the plaintiff and defendants as the amount promised by defendant no. 2 Ravindra Goel could not be paid rather he has misappropriated the assets of the firm. Hence in view of clause VII of the alleged deed of dissolution of the firm (Annexure 1 to the affidavit) the assets of the firm were to be taken back from party no. 4 Ravindra Goel, defendant no. 2 to the suit and the same would become the property of the partnership firm. In this way the partnership firm continues and the alleged deed of dissolution of the firm was totally ineffective.

(2.) THE application for grant of temporary injunction and for appointment of Receiver was filed on the allegation that the plaintiff was in possession but the defendant no. 2 was threatening to dispose of the property to M/.s. Kailash Pati Sugar Industries, the appellant in appeal no. 1088 of 1988 (who was not made party in the suit of the plaintiff respondent in Appeal no. 1089 of 1988) and that the assets of the firm were being mismanaged, there was no accounting maintained by defendant no. 2 and that as the assets were mismanaged, damaged and tried to be alienated, hence the temporary injunction may be granted restraining the defendants including opposite party no. 2 from interfering with peaceful possession of the plaintiff respondent no. 1 (in F. A. F. O. no. 1089 of 1988), and a Receiver, preferably an Advocate, may be appointed.

(3.) SRI Ranjeet Saxena, learned counsel for the appellant urged that no prima facie case, balance of convenience or irreparable loss was made out, nor under the facts and circumstances of the case it was just and convenient to appoint the Receiver under Order 40 (forty) Rule 1 of the Code of Civil Procedure, 1908 (for short the Code). The entire amount due to the Bank was paid by defendant no. 2, party no. 4 to the deed of dissolution of the firm and the present appellant in F. A. F. O. no. 1089 of 1988 and the other dues including dues of the sales tax etc. as was obvious from the certificate of no dues. Consequently the present appellant Ravindra Goel became absolute owner of the entire assets of the firm and he was entitled to execute the sale deed. Consequently, he executed the sale deed in favour of the appellant (in F. A. F. O. no. 1088 of 1988) who was not even made party in the suit filed by Kailash Pati Sugar Industries. Hence even the order for appointment of Receiver or the grant of temporary injunction was not binding on him nor he was effected by the same, but for the sake of precaution he has also filed an appeal as indicated above. As the present appellant Ravindra Goel has undertaken to repay the entire dues to the Allahabad Bank and other Government dues and dues to third parties, consequently he took it seriously and even though there might be some order to the contrary without his knowledge, he has executed the sale deed in favour of Kailash Pati Sugar Industries on 17-8-1988. A true copy of the same has been filed as Annexure-3 to the affidavit in F. A. F. O. no 1088 of 1988. Neither the plaintiff nor the other partners in view of the deed of dissolution or otherwise are in possession over any asset of the firm and they are bound by the terms of the deed of dissolution of partnership firm as quoted above and the defendant appellant Ravindra Goel became the absolute owner and the sale deed executed by him in favour of other appellant Kailash Pati Sugar Industries was legal as the plaintiff was not in possession nor has any title in view of the deed of dissolution of the partnership firm. Hence the application for temporary injunction or for the appointment of Receiver was not maintainable and no relief can be granted and the learned Civil Judge has erroneously allowed those applications.