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Judgment
K. Chandru, J.—Both writ petitions came to be posted on being specially ordered by the Hon''ble Chief Justice vide order, dated 9.3.2011.
The first writ petition was filed by the original Petitioner seeking to challenge an order, dated 13.07.2010 passed by the first Respondent
Registrar of Firms, Office of District Registrar, Coimbatore. By the aforesaid order, the first Respondent found that the removal of four partners
from the business and induction of seven persons was illegal and contrary to Sections 31 and 32 of the Partnership Act. With reference to change
of name and place of business, no signatures of partners were obtained in terms of Section 60 of the Partnership Act and with reference to
dissolution of partners, it was not made with the consent of partners in terms of Sections 39 and 40 and therefore, the Form submitted in this
regard and the entries made were cancelled and the Joint Registrar was directed to act accordingly.
That writ petition is yet to be admitted. During the pendency of the writ petition, the original Petitioner died on 4.3.2011 and his wife and the
minor daughters were brought on record by a substitution application. In the meanwhile, Respondents 3 to 6 jointly filed W.P. No. 20816 of
2010, seeking to challenge an order dated 6.1.2010 by which the first Respondent company was incorporated by the second Respondent and for
consequential direction to the second Respondent to delete the name of the first Respondent from the Register of Companies and pass further
orders on the writ petition.
It was the case of the Petitioners in the second writ petition that the registration of a Company and its incorporation had to be done in terms of
Sections 34(2) and 35 of the Companies Act, 1956. Since the first Respondent Company had fraudulently obtained a Certificate of Incorporation
of the Company, they had stated that in the absence of any other remedy, they have come forward to file the present writ petition. The Registrar of
Companies by his Certificate of Incorporation, dated 6.1.2010 had registered the company by name K.P. Balakrishnan Oil Mills Private Limited in
terms of the Companies Act, 1956.
Heard the arguments of Mr. P.V.S. Giridhar, learned Counsel leading Mr. S. Senthil Kumar, learned Counsel appearing for the Petitioners in
W.P. No. 15660 of 2010 and Mr. P.H. Arvindh Pandian, learned Counsel appearing for Petitioners in W.P. No. 20816 of 2010.
It is not clear as to how both writ petitions are maintainable. In the first case, the dispute is purely among the partners of the Company. It must
be noted that a partnership is a contract between the partners and that the business of partnership is carried on subject to contract between the
partners. The Registrars are appointed u/s 37 to exercise powers that are assigned to them. u/s 59, if the Registrar is satisfied that provisions of
Section 58 was complied with, he can record an entry in the Register called Register of Firms and to file the statement. Thereafter, he can record
alterations in the firm''s name and the principal place of business. Thereafter, he can note the information furnished including the closing and opening
of branches. He can note changes in names and address of partners, record changes and dissolution of firm, rectification of mistakes and that he
can also grant copies of documents. Therefore, under the Partnership Act, 1932, the Registrar plays a very limited role and he is not empowered
to go into the disputes between the partners including any breach of contract constituting the partnership.
7.A division bench of this Court in C. Dharma lingam v. The District Registrar, Office of the District Registrar, Madurai South, Palace Road,
Madurai and Ors. reported in 2010 (3) CTC 390 in respect of Tamil Nadu Societies Registration Act, after reviewing all the case laws on the
relevant subject had held that the Registrar can look into the provisions of the Act and Rules and prima facie materials to arrive at a conclusion
either to believe or not to believe the form submitted to effect changes in the Register. If there are any dispute among the members, the parties will
have to move the Civil Court. In doing so, the division bench followed the earlier Full Bench judgment of this Court in C.M.S. Evangelical Suvi
David Memorial Higher Secondary School Committee Karisal Vs. The District Registrar and Others, . Since the Petitioners have questioned
several issues arising out of the dispute between the partners, this Court is not inclined to entertain the first writ petition. Hence W.P. No. 15660 of
2010 is liable to be dismissed.
The second writ petition, i.e., W.P. No. 20816 of 2010 is an offshoot of the first writ petition. In respect of the second writ petition, it is claimed
that the Company K.P. Balakrishnan Oil Mills Private Limited represented by its Directors, filed a suit in O.S. No. 1148 of 2010 before the I
Additional District Munsif Court, Coimbatore against the writ Petitioners herein in the name of the Company and also sought for a temporary
injunction restraining the writ Petitioners from interfering with the company. While the suit is pending, an interim application made in I.A. No. 1278
of 2010 was dismissed by the Court. Hence, it is for the Petitioners in the writ petition to work out their rights in the main suit. The Petitioners can
also act as if there is no interim order against them. But, this Court do not find that a writ petition will lie for the cancellation of the registration of the
company. Ultimately if a civil suit is pending or instituted for any declaratory relief, then the Registrar of Companies is bound to act on the basis of
the said decree and that the provisions of the Companies Act do not stand in the way of adhering to the order made by the Civil Court.
In the light of the above, both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected
miscellaneous petitions stand closed.