P.R. Sarin & Anr vs Harbans Lal Sachdeva(Dead) By Lrs. &Ors

P.R. SARIN & ANR. ... Appellant(s)

Versus

HARBANS LAL SACHDEVA & ORS. ... Respondent(s)

ORDER

The respondent No.1 has died. An application for substitution of the

names of the legal representatives has been filed. The names of the legal

representatives are mentioned in the application. The prayer is allowed. The legal

representatives, as mentioned in the application are ordered to be brought on record.

They shall be impleaded as respondents (ii) to (vi). Legal representative at Sl.No.(i) is

already on record as respondent No.2.

This appeal is directed against the judgment and order dated 30th November,

2004, passed by the Madhya Pradesh High Court, Jabalpur Bench, disposing of the

Writ Petition filed under Article 227 of the Constitution of India.

Counsel appearing for the appellants submits before us that in a suit for

dissolution of the partnership, a preliminary decree already stands passed by the court 2

of Additional Judge, District Court, Gwalior in Case No.7-A 78 C.S. The said order

was passed in the suit filed by the appellant herein as plaintiffs seeking for a decree of

dissolution of partnership and for transaction accounts of the partnership. In the said

suit, a preliminary decree was

passed on 10th October, 1979, declaring that the partnership firm would be deemed to

have been dissolved from 15/02/1975 and that an advertisement be taken out regarding

the aforesaid dissolution. Our attention is drawn to the orders of the dissolution

made by the Trial Court in the said preliminary decree, particularly, to the following

order as appearing in paragraph 3:-

"All the transactions of the accounts between the plaintiffs & defendants be sough for. It is also be observed. It is also be observed in this regards that by the order dated 01.2.77 of the Hon'ble Supreme Court, the defendants No. 1 & 2 had paid the plaintiffs on dated 05.2.77 and 08.2.77 Rs.1,46,513.60 through this Court. In this regard it is also be observed that according to the order dated 24.8.79 passed by the Hon'ble High Court, M.P. Bench, at Gwalior, the defendant No.1 present Receiver, who is maintaining the accounts and submitting in this court, and for auditing of all such accounts Shri P.D. Garg & Co. Patankar Bazar, lashkar is appointed Auditor and he is instructed to submit his report by 15.11.79."

It is pointed out by the counsel for the appellants that the Receiver, who was

appointed by the court has since died and he has not been replaced till date. It is also

submitted by the counsel appearing for the appellants that the Receiver was required

to maintain accounts and submit the same in the court, which was to be audited by 3

Shri P.D. Garg & Co., who was appointed as the Auditor by the court and the said

report was required to be filed expeditiously.

Having heard the learned counsel appearing for the appellants as also the

senior counsel appearing for the respondents, we find that the dispute revolves

around within a very narrow compass. The appellants are before this Court for

proper implementation of the preliminary decree which is passed, particularly, for

implementation of the directions contained in paragraph 3, which are extracted above.

We are also of the considered opinion that since the Receiver appointed by the court

has died in the meantime, it would be necessary for the trial court to pass appropriate

orders appointing a new Receiver in place of the deceased Receiver. Such an order of

appointment/substitution shall be passed as expeditiously as possible, preferably

within a period of two months from today by the trial court. After the Receiver is so

appointed, he shall be given the custody of all the records and the accounts of the

Company, as as to enable him to place the same before the Auditor for the purpose of

auditing of all such accounts in terms of the orders passed in the preliminary decree

dated 15/10/1979. The report shall be submitted by the Auditor as expeditiously as

possible so as to enable the Trial Court to pass the final decree in accordance with

law and after hearing the counsel appearing for the parties.

The parties shall now appear before the Trial Court for further orders on

28/05/2009. Appropriate orders shall be passed by the Trial Court in terms of the

observations made herein.

4

Mr. Amlan Kumar Ghosh, counsel appearing for the appellants, however, has

submitted at this stage that the Trial Court is wrong in saying that the accounts be

submitted by the receiver with a report by 15.11.1979 and then the same should have

been recorded as upto 15.11.1979. We express no opinion on the same as it is the order

of the Trial Court. He may, however, approach the Trial Court with a proper

application in that regard in accordance with law.

The appeal stands disposed of in terms of the order.

The records of the trial court, which were called for and are available with us,

are also to be send back immediately, so as to made available with the trial court on or

before the next date.

......................J. (Dr. MUKUNDAKAM SHARMA)

......................J. (Dr. B.S. CHAUHAN)

New Delhi, May 20, 2009.