Writ Petition No. 2996 (M/S) of 2004. Case: Dwarika Prasad Agarwal & Brothers Vs Registrar, Firms, Societies and Chits. High Court of Allahabad (India)
| Case Number | Writ Petition No. 2996 (M/S) of 2004 |
| Judges | S.S. Chauhan, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 1; Order XXXIX Rule 1, 2; Constitution Of India - Articles 136, 21, 226, 227, 32; Hindu Marriage Act, 1955 - Sections 11, 16, 17, 5; Indian Partnership Act, 1932 - Sections 18, 19, 21, 22, 25, 29, 29(1), 30, 31, 31(1), 32, 32(1), 43, 58, 58(1), 59, 60, 62, 63, 63(1), 64, 64(1), 70, 72; ... |
| Citation | 2014 (2) ADJ 524 |
| Judgement Date | January 21, 2014 |
| Court | High Court of Allahabad (India) |
Judgment:
S.S. Chauhan, J., (Lucknow Bench)
1. The petitioners through this writ petition have challenged the orders dated 8.9.2003, 3.12.2003 and 7.1.2004, contained in Annexure Nos. 1 to 3 to the writ petition.
The facts giving rise to the present petition, are that firm namely, M/s. Dwarika Prasad Agarwal and Bothers (for short' the firm') was constituted consisting of four members, namely, Dwarika Prasad Agarwal, Bishambhar Dayal, Mahesh Prasad Agarwal and Ramesh Chandra Agarwal on 10.4.1972 and the aforesaid firm was registered with the Assistant Registrar, Firms, Societies and Chits, Jhansi having its registered office at 28 Rani Mahal, Jhansi on 15.11.1976. The said firm was also registered in Form-I under the Indian Partnership Act (for short 'the Act') and continued to run its business. The firm itself was not doing any business, but in fact the partners of the firm in their individual capacity were running separate businesses regarding publication of newspaper from different cities owned by different entities in publishing the newspaper in the name and style "Dainik Bhaskar." These firms were known as Bhaskar Publication and Allied Industries, Pvt. Ltd. at Gwalior managed by Sri Ramesh Chandra Agarwal with majority shares; Bhaskar Graphics, Pvt. Ltd. at Indore managed by Sri Ramesh Chandra Agarwal with majority shares; Writers and Publishers Pvt. Ltd. at Bhopal managed by Sri Ramesh Chandra Agarwal with majority shares. Sri Bhishambhar Dayal Agarwal was publishing the newspaper at Jabalpur, whereas Sri Sanjay Agarwal was publishing the newspaper at Jhansi. It appears that there was some misunderstanding and bickering between the partners, so on 25.11.1987 Mahesh Prasad Agarwal gave a notice under Section 43 of the Act to dissolve the firm. The said notice was replied by Bishambhar Dayal Agarwal by means of letter dated 11.12.1987 stating therein that his notice to dissolve the firm shall be taken as a notice for retirement and he shall be deemed to have retired from the said date. But no reply was given by Mahesh Prasad Agarwal to the aforesaid notice of the Bishambhar Dayal Agarwal. On 28.11.1987 Ramesh Chandra Agarwal filed Civil Suit No. 74A of 1987 in the Court of Additional District Judge-I, Bhopal as Managing Director of M/s. Writers and Publishers Limited against Dwarika Prasad Agarwal and Bishambhar Dayal Agarwal for declaration that plaintiff is the sole owner of business and goodwill of printing and publishing of Dainik Bhaskar from Bhopal and for perpetual injunction restraining the defendants from publishing the newspaper from Jabalpur or any other place. On 30.11.1987 another Civil Suit No. 75A of 1987 was filed by Ramesh Chandra Agarwal in the Court of Additional District Judge-I, Bhopal against Dwarika Prasad Agarwal, Mahesh Prasad Agarwal and Bishambhar Dayal Agarwal for rendition of accounts and for declaration that the firm stood dissolved in the year 1985 or be declared that it stood dissolved w.e.f. 25.11.1987 and for appointment of receiver. On 6.2.1988 another Suit No. 22A of 1988 was filed by Bishambhar Dayal Agarwal in the Court of Additional District Judge-II, Raipur seeking declaration that title "Dainik Bhaskar" belonged to Firm Dwarika Prasad Agarwal & Bros. in which an order was passed on 15.2.1988 restraining the defendants therein, including Ramesh Chandra Agarwal and Writers & Publishers Limited, from publishing Dainik Bhaskar from Raipur. On 28.3.1988 Suit No. 57A of 1988 was filed by Bishambhar Dayal Agarwal in the Court of Additional District Judge-II, Bhopal seeking declaration that agreement dated 13.3.1985 was null and void. Applications moved under Order XXXIX, Rule-1 and 2 CPC by the Writers & Publishers Limited and Ramesh Chandra Agarwal in both the suits i.e. 74A of 1987 and 75A of 1987 were rejected by the Civil Court on 24.11.1988. In January, 1990, Bishambhar Dayal Agarwal wrote a letter to Dwarika Prasad Agarwal expressing his desire to retire from the firm in case he wanted to induct Hemlata Agarwal as partner he has no objection in that regard and he should be deemed to be separate from the firm from the said date. He also acknowledged that there was nothing due to him from the firm. On 2.2.1990 a fresh partnership-deed was executed inducting Kishori Devi, Hemlata and Anil Kaushik as partners and in the said deed, it was narrated that Ramesh Chandra Agarwal, Mahesh Prasad Agarwal and Bishambhar Dayal Agarwal have parted their ways suiting to their convenience without caring about their duties and obligations to the firm, which gave rise to multiplicity of litigations leaving behind Dwarika Prasad Agarwal alone, therefore, with a view to continue the business of the aforesaid firm, the new partners were being inducted. On 10.2.1990 it is alleged that some letter was written by Dwarika Prasad Agarwal to the Assistant Registrar, Firms, Societies and Chits, Jhansi stating therein the change of three partners in the firm, namely, Kishori Devi, Hemlata Agarwal and Anil Kaushik. In the year 1992 some dispute arose between the aforesaid owners as Sudhir Agarwal son of Ramesh Chandra Agarwal started publishing Nav Bhaskar from Jabalpur. Being aggrieved by the said action of Sudhir Agarwal, Bishambhar Dayal Agarwal, who was already publishing Dainik Bhaskar from Jabalpur moved the Jabalpur High Court by way of Writ Petition No. 802 of 1992. In the writ petition at High Court level, a settlement was arrived at between the family members of Dwarika Prasad Agarwal, wherein the parties to the settlement divided between themselves territories from where each of them would be entitled to publish newspaper in the name and style "Dainik Bhaskar." It was also decided to dissolve the firm M/s. Dwarika Prasad Agarwal & Bros., but in all these proceedings, Dwarika Prasad Agarwal was not a party and neither he was signatory to the compromise. Writ petition filed by Bishambhar Dayal Agarwal was disposed of on 29.6.1992 on the basis of compromise. As and when Dwarika Prasad Agarwal came to know about the aforesaid order, he filed Review Petition bearing No. 477 of 1992 before the Jabalpur High Court, which was dismissed on 18.11.1992. Against the said order, Dwarika Prasad Agarwal preferred a Special Leave Petition before the Hon'ble Supreme Court, which was converted into Civil Appeal being CA No. 4783 of 1996. Apart from it, Bishambhar Dayal Agarwal also filed Writ Petition (C) No. 527 of 1993 under Article 32 of the Constitution of India before the Apex Court. On 29.3.1993 an interim order was granted by the Apex Court restraining transfer of property of the firm by the parties. During the pendency of proceedings before the Apex Court, Dwarika Prasad Agarwal expired on 20.7.1993. Thereafter Kishori Devi and Hemlata Agarwal moved an application for substitution in the aforesaid Special Leave Petition being the legal heirs of Dwarika Prasad Agarwal, which was allowed by the Apex Court on 7.1.1994. In the meantime, it is alleged that one registered Will was executed by Dwarika Prasad Agarwal in favour of Kishori Devi. On 19.10.1993, an application for substitution was moved by Kishori Devi in Suit Nos. 74A of 1987 and 75A of 1987 and the said suits were got dismissed as withdrawn on 27.10.1993. On 12.9.1995 the firm was reconstituted with the remaining partners, namely, Kishori Devi Agarwal, Hemlata Agarwal and Anil Kaushik. In the said partnership-deed, it was indicated that partner Dwarika Prasad Agarwal had expired, therefore, he is no more a partner with the firm and on that assumption and belief, the firm was reconstituted. In the said partnership-deed, it was specifically provided in clause (7) that terms and conditions of the partnership business as well as the conditions relating to the relations of the partners not provided for hereinabove and not repugnant hereto shall be the same as are spelled in the partnership-deed dated 10.4.1972 and IInd (2nd) of February, 1990 pertaining to the partners thereof. Thereafter, the aforesaid partners of the firm presented Form-VII regarding reconstitution of the firm on the same day to the Registrar, Firms, U.P., Jhansi and the same was accepted by him on 2.3.1996. After induction of the new partners under Section 63 of the Act, nothing came to light as the new inducted partners who were contesting their claim before the Court, never brought it to the notice of the Apex Court at any point of time after the death of Dwarika Prasad Agarwal on 20.7.1993 regarding the aforesaid fact. The said induction was never pressed upon and neither executed or impressed against the other partners of the firm informing them that they have retired or have been ousted from the firm and new members have been inducted. On 7.7.2003 the Apex Court allowed the civil appeal and quashed the order passed by the Jabalpur High Court, wherein writ petition filed by Bishambhar Dayal Agarwal was disposed of in terms of the settlement dated 29.6.1992 arrived at between the parties and relegated the parties to the same position in which they were immediately prior to the passing of the order dated 29.6.1992. On 4.7.2003, an application was moved by Hemlata Agarwal for change of address of the firm from Jhansi to Ghaziabad before the Deputy Registrar, Jhansi praying therein that change in address of the firm be affected from 3.7.2003 and the said application was allowed by the Deputy Registrar to the effect that change in address be affected from 10.7.2003. After change of the address, the jurisdiction of the firm went under the control of the Deputy Registrar, Meerut. The aforesaid fact came to the knowledge of Mahesh Prasad Agarwal, who was one of the partners of the firm, on the basis of press conference, which was held by Hemlata Agarwal on 8.7.2003, wherein she claimed herself to be the owner of Dainik Bhaskar Daily alongwith Smt. Kishori Devi and Anil Kaushik as partners. The said news was published in daily newspaper on 9.7.2003 and Smt...
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