Sumathi and Others vs Nagabushanam Fastnerns

G. Rajasuria, J.—The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of these Civil

Revision Petitions and the civil miscellaneous appeal would run thus:

The revision petitioners/appellants/plaintiffs, filed the plaint seeking to pass a preliminary decree in favour of the plaintiffs against the defendants for

partition of the suit properties to be divided into 36 equal shares and allotment and separate possession of 22 shares viz. 22/36 shares to the

plaintiffs. Written statement was filed. While so, the plaintiff also filed the following three I.As:

(1) I.A. No. 167 of 2010 was filed seeking the following relief:

It is therefore, just and necessary that this Honourable Court may be pleased to pass suitable orders by giving directions to the BHEL, Trichy, who

is shown as third respondent in the accompanying petition, to remit the amounts due and payable to the defendants 3 and 6 into Court to the credit

of this suit and thus render justice.

(2) I.A. No. 168 of 2010 was filed seeking the following relief:

It is therefore, just and necessary that this Honourable Court may be pleased to pass an order of appointment of an advocate/Commissioner

directing him to inspect the premises of the defendants 3 and 6 described in the petition filed herewith, take an inventory of all movable items,

machineries, tools, tackles, accounts and all other things available and submit a report and also pass an ad interim order to that effect and thus

render justice.

(3) I.A. No. 818 of 2010 was filed seeking the following relief:

It is therefore, just and necessary that this Honourable Court may be pleased to pass an order of appointment of an advocate/Receiver or third

party Receiver who is well acquainted with Quality Control and Management of Small Scale Engineering Industries to manage the suit properties

conferring them all such powers for the realization, management, protection, preservation and improvement of the property, the collection of rents,

profits thereof etc., till the disposal of suit and also pass an ad interim order to that effect and thus render justice.

After hearing both the sides, the Lower Court dismissed all the three I.As as though any decision rendered in those I.As would prejudice the rights

of the parties. Being aggrieved by and dissatisfied with the same, these two revisions and CMA have been filed.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the Lower Court.

The learned counsel for the plaintiffs would put forth and set forth his arguments which could tersely and briefly be set out thus:

In the written statement, candidly and categorically, the defendants admitted that in the Fixed Deposits standing in the name of the deceased-

propositus, namely, Rathinasabapathi, the parties are all entitled to equal shares and as such, partial decree can be passed by the Court; at least,

the feasibility of appointing party receiver from among the defendants might also be considered by the Court; inventory of the apparatus/articles

available could be taken by the Commissioner for which there could not be any objection. A time frame may be fixed for early disposal of the suit

itself taking into account the relationship between the parties.

Per contra, the learned counsel for the defendants, in a bid to torpedo and pulverise the arguments as put forth and set forth by the learned

counsel for the plaintiffs, would pyramid his arguments which could tersely and briefly be set out thus:

(a) There could be no objections for final partition regarding the Fixed Deposits are concerned, for which it is open for the revision petitioners to

petition the Court and accordingly it could be processed.

(b) The suit itself by this time could have been got disposed of, but the plaintiffs are interested in litigating in the I.As and as such, if a receiver is

appointed, it would not in any way be conducive for the early disposal of the suit.

(c) So far as conducting inventory is concerned, records are maintained by the Partnership as well as Private Limited Company and there should

be no hanky-panky business about it and those things are all available and no inventory need be taken up by the Commissioner.

(d) There should be no objection for this Court issuing a direction to the Lower Court for speedy disposal of the matter.

The point for consideration is as to whether the Lower Court was justified in simply dismissing the I.As as though any decision rendered thereon

would prejudice the parties.

Regarding the partial partition is concerned, I am of the considered view that Order 12 Rule 6 of CPC empowers the Court to pass even a

partial decree based on admission. Now it is clear that parties are not at loggerheads relating to dividing the Fixed Deposits standing in the name of

the deceased-propositus Rathinasabapathi. As such, the revision petitioners should be given liberty to petition the Court under Order 12 Rule 6 of

CPC for obtaining such relief, whereupon the Court, based on the pleadings itself can pass straightaway executable decree relating to Fixed

Deposits.

Even though the learned counsel for the plaintiffs would suggest the possibility of appointing a party receiver preferably among the defendants,

yet as rightly contended by the learned counsel for the defendants, appointment of party receiver in the facts and circumstances of the case, may

not be conducive for early disposal of the case. However, as correctly highlighted by the learned counsel for the plaintiffs, admittedly the plaintiffs

are getting income derived from the business relating to which, Rathinasabapathi also had a share; wherefore there could be no hesitation on the

part of the defendants to deposit the shares of the plaintiffs in Court out of the income being derived by them from such business. However, the

learned counsel for the defendants would submit that the early disposal of the case would solve the problem and deposit of shares of the plaintiffs

tentatively would further complicate the issue. I am of the considered view that when prima facie, the relationship among the parties, is an admitted

one and the deceased propositus-Rathinasabapathi also had a share in the Partnership as well as Private Limited Company business, the

defendants who are in-charge of the business could be mandated to deposit the plaintiffs'' tentative share amounts which could be fixed by the

Lower Court, periodically at an interval of three months in Court. The Court also should safeguard both the sides by re-investing such deposited

amounts in some Fixed Deposits in Nationalised Banks also so that interest might occur.

Regarding inventory is concerned, I am of the considered view that the Partnership as well as the Private Limited Company are expected to

maintain the balance sheet including assets particulars and all the details would be available with the defendants. Therefore, the defendants are

expected to submit the same to the Court at the earliest point of time and the plaintiffs are entitled to have a copy of it.

With regard to fixation of time limit, I am of the view that the Lower Court shall do well to see that the O.S. is disposed of within a period of six

months from the date of receipt of a copy of this order. The Civil Revision Petitions and Civil Miscellaneous Appeal are disposed of with the

above observations. Consequently, the connected miscellaneous petitions are closed. No costs.