IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL REVISION PETITION NO.203/2017 BETWEEN:
M/S. SARVODAYA ENGINEERING EQUIPMENTS PRIVATE LIMITED, NO.49 ‘A’, 2ND PHASE, PEENYA INDUSTRIAL AREA, BENGALURU – 560 058.
REPRESENTED BY ITS DIRECTOR, SMT.SHIVASHANKARI, W/O LATE M.R.NAGARAJAN. … PETITIONER (BY SRI.VIVEKANANDA.S, ADV.) AND:
1. SMT. KALPANA MANAVALAN, W/O LATE M.N.MANAVALAN, AGED 52 YEARS, R/AT NO.36, 1ST A CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU – 560 054.
2. SRI.N.M.GURURAJ, S/O LATE M.N.MANAVALAN, AGED 31 YEARS, R/AT NO.36, 1ST ‘A’ CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU – 560 054.
3. SMT. SANDHYA GIRI PRASAD, D/O LATE M.N.MANAVALAN, AGED 29 YEARS, R/AT NO.36, 1ST ‘A’ CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU – 560 054.
4. KUMARI N.M.SOUMYA RANI, D/O LATE M.N.MANAVALAN, AGED 26 YEARS, R/AT NO.36, 1ST ‘A’ CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU – 560 054.
5. SMT. VASANTHA KUMARI, D/O LATE M.R.NAGARAJAN, W/O R.GNANAMANI, AGED 57 YEARS, R/AT CEE – BROS, SHYAMALA GARDENS, BLOCK – III, FLAT 7 – I, ARCOT ROAD, SALIGRAMAM, CHENNAI – 600 093.
6. SMT. DAKSHAYANI, D/O LATE M.R.NAGARAJAN, W/O S.RAJASEKAR, AGED 42 YEARS, R/AT PLOT NO.W-493, 10TH STREET, SECTOR – C, ANNANAGAR WEST EXTENSION, CHENNAI – 600 101.
7. SMT. SUMATHI SUDARSHAN, D/O LATE M.R.NAGARAJAN, AGED ABOUT 52 YEARS, R/AT 7577, SOUTH DUQUESNE – CT, AURORA – CO, USA – 80016, REPRESENTED BY DULY CONSTITUTED GENERAL POWER OF ATTORNEY HOLDER, SMT.DAKSHAYANI, (I.E., 6TH PLAINTIFF IN OS) 8. SRI.M.N.PADMANABHAN, S/O LATE M.R.NAGARAJAN, AGED 48 YEARS, M.R.N.EDUCATIONAL TRUST REGD., GOOD WILL ENGLISH SCHOOL, NO.15, 18TH CROSS, ANDHRAHALLI MAIN ROAD, VISHWANEEDAM POST, HEGGANAHALLI, BANGALORE – 560 091.
9. SMT. MALAR SELVI, W/O M.N.PADMANABHAN, AGED ABOUT 41 YEARS, M.R.N.EDUCATIONAL TRUST REGD., GOOD WILL ENGLISH SCHOOL, NO.15, 18TH CROSS, ANDHRAHALLI MAIN ROAD, VISHWANEEDAM POST, HEGGANAHALLI, BANGALORE – 560 091.
10. M/S. M.R.N. EDUCATIONAL TRUST REGD., REPRESENTED BY ITS TRUSTEE, SRI.M.N.PADMANABHAN, S/O LATE M.R.NAGARAJAN, NO.15, 18TH CROSS, ANDHRAHALLI MAIN ROAD, VISHWANEEDAM POST, HEGGANAHALLI, BANGALORE – 560 091.
11. SRI.PREM KUMAR, S/O SHIVAKUMAR & LATE HEMAVATHI, SINCE MINOR, REPRESENTED BY HIS NATURAL GUARDIAN FATHER SRI SHIVAKUMAR, R/AT NO.2043, WEST DEKALB STREET, CAMDEN, S.C. – 29020 US.
12. SEQUENT AUTOMATION (P) LTD., REPRESENTED BY ITS MANAGING DIRECTOR, #49/A/1, 2ND PHASE, PEENYA INDUSTRIAL AREA, BANGALORE – 560 058.
13. M/S. G.P.S.P.L. SERVICES, REPRESENTED BY ITS PROPRIETOR, #49/A/2, 2ND PHASE, PEENYA INDUSTRIAL AREA, BANGALORE – 560 058.
14. M/S. H.M.G. POWER, REPRESENTED BY ITS PROPRIETOR, #49/A/3, 2ND PHASE, PEENYA INDUSTRIAL AREA, BANGALORE – 560 058.
15. M/S. G.P.S.P.L. SYSTEM, REPRESENTED BY ITS PROPRIETOR, #49/A/4, 2ND PHASE, PEENYA INDUSTRIAL AREA, BANGALORE – 560 058.
16. SMT. SANGAMMA A LANGTI, AGED ABOUT 50 YEARS, PROPRIETRIX SWATHI P.G. ACCOMODATION, OFFICE AT OLD CANARA BANK BUILDING, NO.4216/A/2/4, 2ND FLOOR, MUNESHWARA TEMPLE ROAD, A – BLOCK, SUBRAMANYANAGAR, BANGALORE – 560 021.
17. VODAFONE INFRASTRUCTURE LIMITED COMPANY, REPRESENTED BY ITS REGIONAL MANAGER, OFFICE AT OLD CANARA BANK BUILDING, NO.4216/A/2/4, MUNESHWARA TEMPLE ROAD, A – BLOCK, SUBRAMANYANAGAR, BANGALORE – 560 021.
18. IDEA CELLULAR LIMITED, REPRESENTED BY ITS REGIONAL MANAGER, OFFICE AT OLD CANARA BANK BUILDING, NO.4216/A/2/4, MUNESHWARA TEMPLE ROAD, A – BLOCK, SUBRAMANYANAGAR, BANGALORE – 560 021. … RESPONDENTS (BY SRI.K.G.SADASHIVAIAH, ADV. FOR R1 TO R7; SRI.SHIVANANDA METI, ADV. FOR R8 TO R10; NOTICE TO R12 TO R18 DISPENSED WITH; R11 SERVED AND UNREPRESENTED) - - -
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CPC 1908, AGAINST THE ORDER DATED 31.01.2017 PASSED IN OS.NO.6565/2013 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, NEGATIVELY ANSWERING THE ISSUE NO.2.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. Vivekananda S., learned counsel for the petitioner.
Sri K.G.Sadashivaiah, learned counsel for respondents-1 to 7.
Sri Shivananda Meti, learned counsel for respondents-8 to 10.
2. The civil revision petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short), the petitioner has assailed the validity of the order dated 31.01.2017 by which the application filed by the petitioner/defendant No.4 to try Issue No.2 as preliminary issue has been decided and the suit has been held to be not maintainable.
4. The facts give rise to filing of this petition briefly stated are that the respondents-1 to 7 have filed the suit seeking relief of partition of joint family properties by metes and bounds. The reliefs claimed by the respondents-1 to 7 in the plaint read as under:
“(a) Declare that, the plaintiffs and defendants 1 and 2 are joint family members and suit properties are joint family properties and the plaintiffs are entitled for a partition by meets and bounds and draw the preliminary decree for partition accordingly.
(b) Declare that, the appointment of defendants 2 and 3 as Directors of 4th defendants company is null and void and in violation of Articles of Association and Companies Act and also the alleged meetings dated 16.08.2013 & 02.09.2013 are illegal and void.
(c) Issue mandatory injunction to defendants 1 to 3 to furnish accounts in respect of defendants 4 and 5 and other receipts received by them.
(d) Declare that, the plaintiffs are entitled for mense profits and order to hold an enquiry as contemplated under Order XX Rule 12 of the C.P.C.
(e) Grant permanent injunction restraing the defendants from alienating or encumbering or creating third party rights in respect of the suit properties rights.
(f) Grant such other relief as this Hon’ble Court deems fit to grant under the circumstance of the case in the interest of justice and equity.”
5. Learned counsel for the petitioner submitted that the petitioner filed a memo seeking to try Issue No.2 as preliminary issue with regard to maintainability of the suit on the ground that the same is not maintainable under the provisions of the Companies Act, 1956 (hereinafter referred to as the ‘Act’ for short) and the Indian Trust Act, 1882. However, the said Issue No.2 has been decided in Negative by the Trial Court by its impugned order.
6. Learned counsel for the petitioner submitted that the suit was barred under the provisions of the Companies Act. The relief claimed by the plaintiff in Clause (b) and (c). However, the aforesaid aspect of the matter was not appreciated by the Trial Court. In support of his contention, reliance has been placed on the following decisions in the cases of ‘Chiranjeevi Rathnam & Others –vs- Ramesh’, (2017) 6 CTC 568, ‘Naga Brahma Trust Vs. Trans Lanka Air Travels P. Ltd.’ (1995 SCC Online Mad 299), ‘Amratlal Bhanji Laxman vs. Kusum Prabhudas Laxman & Others, (2009 SCC Online Bom 776), and ’Bacha F. Guzdar, Bombay vs. Commissioner of Income Tax, Bombay’ (1955) 1 SCR 876.
7. On the other hand, learned counsel for the respondents-1 to 7 has submitted that it is not permissible to reject the plaint in part. In support of his contentions, reliance has been placed on the reported decision of the Division Bench of this Court in the case of ‘Kanthamma and others –vs- N.Ananda Kumar Reddy and another’, in RFA No.1114/2016.
8. I have considered the submissions made by the learned counsel for the parties and perused the record.
9. From perusal of Clause (b) and (c) of the reliefs claimed in the plaint, it is evident that the aforesaid reliefs being not given to the principal relief claimed in the suit with regard to partition by metes and bounds. The reliefs claimed by the petitioner under Clause (b) and (c) can be claimed by the petitioner under the provisions of the Companies Act. The issue, which arises for consideration before the Trial Court is, whether in the context of Section 43 of the Act, the jurisdiction of the Civil Court under Section 9 of the Code shall be impliedly excluded, particularly in the context of clause (b) and (c) of the Act ? However, the aforesaid aspect of the matter has not been appreciated by the Trial Court while passing the impugned order. So far as the reliance placed by the learned counsel for the respondents-1 to 7 on the Division Bench reported decision of this Court (supra) is concerned, the same is of no assistance to the case of the respondents-1 to 7.
10. In the aforesaid case, the Division Bench had an occasion to deal with the provision of Order VII Rule 11 of Code and by placing reliance of the decision of the Supreme Court in ‘Sejal Glass Ltd. vs. Navilan Merchants Pvt. Ltd.’, (AIR 2017 SC 4477) it was held that there is no provision under the Code for rejection of the plaint in part. However, in the instant case, Issue No.2 has been tried as a preliminary issue. Therefore, the aforesaid decision is not applicable to the fact situation of the case. However, since the Trial Court while passing the impugned order has failed to take note of this factual aspect of the matter, therefore, the impugned order is quashed insofar as it pertains to Issue No.2. The Trial Court is directed to decide Issue No.2 afresh by passing a speaking order after affording an opportunity of hearing to the parties.
The petition is accordingly disposed of.
Sd/- JUDGE TL