Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2382/2018 in S.C.Suit 5872/1994
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2382 OF 2018
IN
S.C.SUIT NO. 5872 OF 1994
CNR NO. : MHCC010076892018
Smt. Laxmi Narayan Shetye & Ors. …Plaintiffs
Versus
Nisha Ramesh Kantak & Anr. ...Defendants
Appearance:
Adv. Shri. R.J.Thakkar for plaintiff.
Adv. Shri. Mehul Thakkar for Defendant.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 17/09/2021
ORDER
The Notice of Motion is filed by the plaintiff to appoint a Valuer
to file report furnishing valuation of movable properties of the
partnership firm and immovable properties of Room No. 14A and 14B
in Sneh Sadan, Mangalwadi Girgaon, Mumbai400 004. The plaintiff
has also sought relief to appoint a Chartered Accountant to prepare and
furnish reports in respect of Goodwill & Profit and Loss Account of the
said partnership business on the basis of available accounts of the
partnership business on the record of the suit in order to file his report
in respect of movables and assets of the partnership business.
2. The Notice of Motion is supported by affidavit of plaintiff stating
the defaults and non cooperation on the part of the defendant to file the
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account books to the Commissioner appointed by the Hon'ble High
Court and in preliminary decree passed in the suit.
3. The defendant filed reply through affidavit of Ramesh Kantak, the
Constituted Attorney of defendant no. 1 and 2 and has denied the
allegations in toto.
4. The plaintiff filed rejoinder dated 06.12.2017 and 14.12.2018 to
the reply of the defendant denying the reply of the defendant. In the
rejoinder dated 14.12.2018, the copies of order passed by Hon'ble High
Court is filed. The defendant has filed affidavit of Harshad Trivedi, who
on oath stated that the defendants have filed documents relating to the
accounts before the Court Commissioner. The Court Commissioner has
verified all the documents and kept the record with him. The plaintiff
has filed reply to the affidavit of advocate Harshad Trivedi denying the
facts stated in the affidavit and again has incorporated the contents of
the history of the proceeding.
5. Heard Advocate Shri. R.J.Thakkar for plaintiff and Advocate Shri.
Mehul Thakkar for Defendant. I have gone through the contents of
Notice of Motion, reply and rejoinder reply of plaintiff along with the
documents and affidavit of Advocate Harshad Trivedi.
6. The suit is filed by the plaintiff for declaration that the
partnership firm “Prasad Life Like Eyes and Allied Products” stands
dissolved from the date of notice of dissolution dated 11.07.1994. The
direction is already sought to render accounts of partnership evaluating
the properties of the said partnership firm and to pay the plaintiff 1/3rd
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share in the partnership properties being legal heirs of deceased partner
Shri. Narayan Shambhu Shetye.
7. The preliminary decree is passed in the suit along with
counterclaim no. 4 of 2001 on 09.08.2005. The Counterclaim is
dismissed. The suit is decreed as under:
“i) Defendants 1 & 2 are directed to render full, final and
true accounts of the suit firm – Prasad Life Like Eyes & Allied
Products – to the Commissioner for taking accounts, High
Court, Bombay, for settlement of accounts of the said firm
and the Commissioner shall submit his report about the
partnership assets and liabilities of the firm – Prasad Life
Like Eyes & Allied Products – within six months from the
date of this order. After settlement of final accounts as per
the report of the Commissioner for taking accounts, the
Plaintiffs shall be entitled to share in the profits made by the
suit firm as may be attributable to the use of the estate of
late Shri. Narayan Shetye of the property of the firm till the
subsistence of the firm Prasad Life Like Eyes & Allied
Products and shall be entitled to interest at the rate of 6
percent per annum on the amount of his share in the
property of the firm till the final settlement of the accounts
as per the report of the Commissioner for taking accounts as
and when received. On receiving the report of the
Commissioner, the Plaintiffs shall be entitled for payment as
per clause 18 of the agreement dated 1479 Ex.A.
ii) …...........
iii) Preliminary decree be drawn up accordingly. Returnable
on 4206. Matter be kept on 4206 for passing final decree”.
8. The Commissioner has filed report dated 29.11.2011 stating that
the defendants did not file the books of accounts of the suit firm for the
relevant period i.e. from 01.04.1988 till the date of the death of
plaintiff. Therefore, it is difficult for the Commissioner for taking
accounts to determine the accounts on account of failure on the part of
defendants to lodge the book of accounts and non cooperation by
them.
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9. I have gone through roznama. The relevant roznamas showing
the orders/observations of the Court is as under :
i. In the roznama dated 26.04.2012, the direction is
given to the defendant observing that,
“The Commissioner's report Exhibit26 reveals that failure on the
part of defendants to lodge the books of account and non
cooperation, the Commissioner is unable to determine the
accounts. Office is directed to issue a letter to the defendants
directing them to furnish all the necessary details and cooperate
with the Commissioner of taking accounts within 15 days, failing
which adversed inference would be drawn against them. The
copy of the said letter be also given to Commissioner. The matter
be remanded back to Commissioner”.
ii. In the roznama dated 14.10.2014, direction is given
observing that,
“Decree was passed directing deft. no. 1 and 2 to render full,
final accounts of suit firm to the commissioner who will be
appointed for taking accounts. Commissioned was appointed.
After receiving commission report, matter was listed for
arguments. Perusal of commission report reveals that
commissioner could not determine the accounts as defts. did
not cooperate him. Thus the inquiry under Order 20 Rule 17 of
CPC which is contemplated after order of the court under decree
can not be said to be complete. Adv. for plff submits that
because of failure of commissioned it is required that defts. be
directed to produce the accounts in question in the court.
Considering the commissioner's report I also find it necessary to
direct defts. to tender accounts of suit firm in the court. Thus
following directions are given Defts/judgment debtor to
produce accounts of suit firm from 01/04/1988 till the date of
death of the plaintiff within four weeks of receiving directions.
As no one is appearing on behalf of defts/ judgment debtor”.
iii. In the roznama dated 26.04.2019 the notice is
issued to defendant observing that
“Despite specific orders dated 25.2.2019 and 3.4.2019, the
defendants nos. 1 and 2 have not appeared before this court
and there is breach of order dated 25.2.2019 and 3.4.2019.
Hence issue show cause notice to D1 – Nisha Ramesh Kanthak
and D2–Snehlata Radhakrishna Aroskar, as to why they should
not be detained in civil prison for non compliance of the orders
passed by this Court. The Ld. Counsel appearing for D1 and 2
waives the notice. The defendants no. 1 and 2 to submit their
reply to show cause notice by next date”
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iv. In the roznama dated 04.11.2019 it is observed that,
“This Court on 15/06/2019 specifically directed him to file
affidavit in respect of books of accounts of the firm from
01/04/1988 till the death of plaintiff husband and also to
disclosed the about the immovable property shop no. 14(a)
and 14(b). Till date defendant failed to file such affidavit.
Therefore, defendant is directed to file the same today only.
Adv. Harshad Trivedi who was earlier representing the
defendant is also present in the court. He made statement that,
books of accounts were filed in the court. However,
commissioner report says that there is no cash book therefore,
he cannot assess the accounts from 1988 till the death of
plaintiff husband. Even the cash book is not available on
record. There is bank book for period 198788 is available on
record.
Second time matter called out (4.41 p.m)
after going through the record inform that, books of accounts
was filed during cross examination vide Exh19 and Exh20.
However, the aforesaid exhibit did not find on record. On
contrary as per roznama dated 20/10/2003 it appears that, 12
books of accounts were handed over to the advocate of
defendant. Thus, in order to get the whereabout of cash books
and for filing proper affidavit by the defendant and his earlier
advocate, matter needs to be adjd. The roznama of the matter
is not in good condition therefore, sheristedar is directed to
take the photocopy of roznama and keep in the record”.
10. In the Judgment dated 09.08.2005, it is observed in para no. 25
that,
“However, at the same time, it will have to be noted that both
these premises 14A & 14B were tenanted premises which
cannot be subjected to evaluation for settlement of accounts. It
is the case of the Plaintiffs that the premises value worth more
than Rs. 40 lac and the plaintiffs had demanded money from
the defendants for giving up her claim in respect of premises
14B and for the defendants' refusal to pay the amount, she has
filed the present suit. She cannot and could not have, merely
for the reason that the property has not been subjected to
evaluation, sold out and given share of the plaintiffs. The
property belongs to somebody who is landlady Lad as
appearing from the rent receipts. Neither the plaintiffs nor the
defendants can be permitted to sell the property i.e. one room
in 14B encash it and disburse the amount between the
plaintiffs and defendants. Leasehold rights cannot be subjected
to evaluation. Therefore, contention of the plaintiffs that 14B
forms part of partnership property cannot be accepted”.
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11. Advocate for plaintiff has relied on authorities reported in :
i. Vasantrao Udhavrao Shivale & Ors. Vs. Wamanrao Genuji
Shirole (deceased by L.R.s) & Ors. : 2005 Vol. 107(2) Bom.L.R.
150;
ii. Veetrag Investments and Finance Company Vs. Premier
Brass and Metal Works Private Limited : 2003 (2) Bom.C.R.
812;
iii. Jane Andrew Austin and Anr. Vs. State Bank of Travancore
Kollam and Ors. : AIR 1999 Kerala 136;
iv. Zenna Sorabji & Ors. Vs. Mirabelle Hotel Co. (Pvt.) Ltd. &
Ors. : MANU/MH/0356/1981.
I have gone through the above authorities. The ratio that
leasehold property can be auctioned and there is no bar under Section
15 (1) of Bombay Rents, Hotel and Lodging House Rates (Control) Act,
1947 for non residential premises. In the facts of the above authorities,
there was an Execution Proceeding. In the present facts of the case, the
preliminary decree is passed and the commissioner is appointed for
taking accounts and to file report stating the total amount of the
business of the partnership firm, so as to decide 1/3rd share of the
plaintiff in the partnership business. The said decree is under Order 20
Rule 15 of the Code of Civil Procedure. The final decree is yet to be
drawn on the basis of report of the Commissioner about the amount of
the partnership business. Therefore, the above preliminary decree
cannot be executed unless final decree is drawn. The ratio of the above
authorities is not applicable to the present facts of the case.
12. The plaintiff has relied on the order passed by the Hon'ble High
Court in First Appeal No. 5307 of 2006 in Civil Application No. 1365 of
2006 dated 14.11.2006 that,
“Heard learned counsel for the parties.
Mr. Gole, learned counsel for the applicants/appellants prays for
withdrawal of the application/appeal with liberty to the
applicants/appellants to raise all the contentions before the
executing authority in final decree proceedings. He made the
statement in view of the operative part of the judgment by which
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the suit filed by the applicants/appellants has been decreed. The
application/appeal is allowed to be withdrawn with liberty as
prayed for. If any such objections are raised by the applicants/
appellants same may be considered and dealt within accordance
with law. The application/appeal stands disposed of as
withdrawn.”
The Advocate for plaintiff has withdrawn the Appeal and the
objections if any raised by the plaintiff are to be considered and decided
as per law. The relief to value the immovable property Room No. 14A
and 14B cannot be considered on the ground that the prayer in that
respect is already rejected in the Judgment dated 09.08.2005. It is a
tenanted premise of partnership business. Order 21 of Code of Civil
Procedure provides procedure for execution of decree. The final decree
is not yet passed. Therefore, the provision of Order 21 Rule 49 of CPC
will not apply at this stage. The said provision will apply at the time of
execution of decree, in case the defendant fails to comply the decree.
Hence, relief of prayer 'A' in the Notice of Motion is not tenable.
13. In respect of Prayer 'B' to appoint the Chartered Accountant, the
facts on record shows that sufficient opportunities have been granted to
the defendant to produce the books of account but on one or the other
ground the defendant failed to produce the books of accounts. The
adverse inference will have to be drawn at the time of decision of final
decree. The earlier commissioner has filed report and shows his inability
to furnish the accounts of the partnership business due to failure on the
part of the defendant to produce books of accounts. Therefore, in order
to collect the complete information of accounts of partnership firm so as
to calculate the amount as per the preliminary decree, the appointment
of Chartered Accountant is necessary to prepare and furnish report of
the Goodwill and Profit & Loss Account of the Partnership firm. The
Prayer 'C' of the Notice of Motion to adduce evidence of Chartered
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Accountant will be considered after the report of the Chartered
Accountant, if required. Hence, pass following order:
ORDER
1. Notice of Motion is partly allowed.
2. Prayer 'B' of Notice of Motion is made absolute that to
appoint a Chartered Accountant to prepare and furnish
reports in respect of Goodwill of the said partnership
business and firm and Profit and Loss Accounts of the
partnership business on the basis of available accounts
of the partnership business on the record of the above
suit in order to file his report in respect of movables
and assets of the partnership business and firm.
3. The Registrar to comply the order to appoint the
Chartered Accountant.
4. Plaintiff and defendants to equally bear the fees of the
Chartered Accountant.
5. Accordingly, Notice of Motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 17/09/2021 City Civil Court,
Gr. Mumbai
Declared on : 17.09.2021
Dictated on : 17.09.2021
Typed on : 17.09.2021
Checked & Signed on : 17.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20/09/2021 12.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
17/09/2021
Judgment/order signed by P.O on 17/09/2021
Judgment/order uploaded on 20/09/2021
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