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TMI Blog1993 (12) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... id partnership deed marked as annexure "A" is filed as an enclosure to the company petition. The petitioner states that respondents Nos. 2 to 12 along with her, "originally constituted" the first respondent firm and since there are more than seven partners, section 582 of the Act is attracted. Therefore, the first respondent firm can be wound up under the Act as an "unregistered company". The petitioner states that two other persons, namely, Sri B. Sitarama Rao and Sri B. Mohana Rao, were also partners of the first respondent the former was her father and the latter was her brother. The former died on October 2, 1985, and the latter died on March 9, 1988. According to the petitioner, the first respondent firm was a partnership at will and, therefore, it stood dissolved on the death of her father on October 2, 1985, and alternatively on March 9, 1988, on the death of Sri B. Mohana Rao. The petitioner contends that because the first respondent firm stood dissolved, it was incumbent on respondents Nos. 2 to 12, to settle the accounts and execute a dissolution deed and that they failed to do so. The object of the first respondent firm was to carry on business as hoteliers and cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition was filed on February 28, 1990, and notice before admission was ordered therein on March 2, 1990. On December 30, 1990, the company petition was admitted as a prima facie case was made out that the first respondent firm was dissolved. On that date none appeared for the respondents even though service was effected on them. The petition was advertised as directed by this court in the Hyderabad editions of the English daily Deccan Chronicle, dated January 22, 1992, and of the Telugu daily Eenadu, dated January 22, 1992. Subsequently, learned counsel, Mr. T. Anil Kumar, filed his appearance for the various respondents on different dates. As no appearance was filed initially for respondent No. 9, he was set ex parte on November 6, 1992. Company Application No. 273 of 1992 was filed by him represented by Mr. T. Anil Kumar on December 18, 1992, for setting aside the said ex parte order and the said application was allowed on July 9, 1993. He adopted the counter-affidavit filed on behalf of the other respondents. Respondent No. 10 filed the counter-affidavit dated September 18, 1992, on behalf of the respondents. It is stated therein that the petitioner was not at all conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rao, was entered in his account for the financial year ending March 31, 1985. It is also stated that for the financial year ending March 31, 1986, the petitioner's share of profit was Rs. 26,263.78 and that the same was shown in her income-tax return as share income from Hotel Dwaraka and income-tax was also paid for the same. From this the respondents contend that the petitioner received her share of profit from the first respondent firm and that her claim for accounts, etc., in the present company petition is patently false and dishonest to her knowledge. In the counter-affidavit it is also denied that the petitioner made any oral demands at any time for settlement of accounts. It is also stated that the respondents were not bound to reply to any of the notices issued on behalf of the petitioner in view of the fact that the claim made by the petitioner was false to her knowledge and was also time barred. It is contended that on the date of the presentation of the company petition on February 28, 1990, the claim of the petitioner was stale and time barred and that there was no debt due by the respondents to the petitioner and that the present company petition was filed maliciousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period which ended on March 31, 1986. She also alleges that the respondents deliberately suppressed the information as to what happened to her share of profits allegedly credited to her account for the said period and that regarding the advance tax, if any, paid on her behalf and the ultimate assessment made on the firm, etc. She contends that the respondents admitted that they continued the business of the first respondent firm in the name of Hotel Dwaraka wrongfully using the assets of respondent No. 1 which stood dissolved "on the date of the death of Sri B, Sitarama Rao or in any event on the date of death of B. Mohana Rao" and, that, therefore, the respondents are liable to account for all the profits earned from the date of death of Sri B. Sitarama Rao till present. The petitioner got herself examined as PW-1. In her examination-in-chief, she stated that she did not have the original partnership deed of the first respondent and she got marked a photo copy of the same as exhibit A-2. She has stated that after the death of her father on October 2, 1985, and after the death of her uncle, M. Mohana Rao, she did not sign any retirement deed or reconstitution deed. She has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied the suggestion that for the purpose of black-mailing the respondents she filed a false case against them. Though learned counsel for the respondents was given time for examining witnesses, he reported that he had no witness to be examined. No documents were also filed on behalf of the respondents. Learned counsel for the petitioner contends that all the three clauses of sub-section (4) of section 583 are attracted to the facts of the case and that grounds are made out for the winding up of the first respondent firm under the Act. Learned counsel for the petitioner submits that as the respondents do not dispute the formation of the first respondent firm under the partnership deed dated April 14, 1984, consisting of 14 partners as evidenced by exhibit A-2, respondent No. 1 falls within the definition of unregistered company under section 582 of the Act, and, therefore, the present petition under section 583 of the Act is maintainable. He relies on the decision of the Karnataka High Court in Ganapaiah Maiya v. M.T.R. Associates [1986] 59 Comp Cas 359 . He further submits that under clause 11 of exhibit A-2 the duration of the partnership shall be at will, and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccrued to the petitioner when the first respondent firm was dissolved on October 2, 1985, and, therefore, the present company petition is barred by time. He also relies on the recent decision of a Division Bench of this court in N. Kamalamba v. M. Ramaiah [1992] 2 APLJ 414. Learned counsel for the petitioner submits that the Limitation Act, 1963, is not attracted to petitions and applications under the Act. But I am of the view that learned counsel for the petitioner is not right in view of the clarification of the position by the Supreme Court in Kerala State Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282. The Supreme Court has considered the changes effected in the new Limitation Act, 1963, and has disagreed with the earlier view taken by a two-judge Bench of that court in Athani Municipal Council v. Presiding Officer, Labour Court, Hubli, AIR 1969 SC 1335, and has held that article 137 of the Limitation Act, 1963, will apply to any petition or application filed under any Act in a civil court and that the said article is not confined to applications contemplated by or under the Code of Civil Procedure. In the Limitation Act of 1963, the articles are divided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the partners died and the partnership was, therefore, dissolved and the present company petition was filed more than four years thereafter, i.e., on February 28, 1990, and the petitioner has not filed any application for condoning the delay in presenting the company petition beyond time. The petitioner has also not given any explanation for the delay in filing the company petition. The three years' time expired on October 2, 1988, and even as per the petitioner the first legal notice, i.e., the original of exhibit A-3, dated July 15, 1988, did not evoke any response from any of the respondents. The second legal notice, i.e., the original under exhibit A-4, was issued on October 10, 1988. But there was no response to that also. But by then the time ran out and there was no reason whatsoever for the petitioner to get issued another legal notice on November 22, 1989 (the original of exhibit A-5). Learned counsel for the petitioner contends that respondents Nos. 2 to 12 have been using the property of the first respondent and continuing the hotel business using the firm name after the dissolution of the first respondent firm on October 2, 1985, without winding up its affairs and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various grounds on which the court may dissolve a firm at the suit of a partner ground ( g ) is "on any other ground which renders it just and equitable that the firm should be dissolved". Section 46 provides that "on the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights". This adumbrates the rights of the partners to have the business of the firm wound up after dissolution. This provision makes it clear that when a partnership is dissolved its partners are entitled to have the firm wound up. This right accrues the moment a firm is dissolved in any of the manners provided under the Indian Partnership Act, 1932. (See . Kamalamba v. M. Ramaiah [1992] 2 APLJ 414). Therefore, I am of the view that where a firm is dissolved, a partner can approach this court only under clause ( a ) of sub-section (4) of section 583 and that clauses ( b ) and ( c ) can be invoked only in cases where the firm is subsistin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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