IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 OP.No. 26083 of 2002(E) ----------------------- PETITIONER(S): --------------- 1. M/S. ASHOK DRUGS, RAMAN MENON ROAD, CALICUT - 673 002, REPRESENTED BY ITS PARTNER, A.P.PREMARAJAN. 2. A.P. PREMARAJAN, AGED 53 YEARS, S/O. KUNHIKANNAN, PARTNER, M/S. ASHOK DRUGS, RAMAN MENON ROAD, CALICUT-2. BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENT(S): --------------- 1. THE DRUGS CONTROLLER, OFFICE OF THE DRUGS CONTROLLER, NEAR PUBLIC HEALTH LABORATORY, TRIVANDRUM-37 2. THE ASSISTANT DRUGS CONTROLLER AND LICENSING AUTHORITY, CIVIL STATION, KOZHIKODE 3. THE DRUGS INSPECTOR, CALICUT. 4. THE CHAIRMAN, DRUGS CONSULTATIVE COMMITTEE, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI 5. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI. GOVERNMENT PLEADER SHRI.MUHAMMED HASHIM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.26083/02. APPENDIX PETITIONERS' EXHIBITS: P1. COPY OF THE ACKNOWLEDGEMENT OF REGISTRATION DTD.26.5.93 BY THE REGISTRAR OF FIRMS. P2. COPY OF THE LICENCE ISSUED BY R2. P3. COPY OF THE LICENCE BY R2. P4. COPY OF THE CERTIFICATE OF RENEWAL OF LICENCE DTD.28.5.2001 P5. COPY OF THE DEATH CERTIFICATE DTD.19.6.02 OF T.BALAN. P6. COPY OF THE PARTNERSHIP DEED DTD.1.2.93. P7. COPY OF THE REPRESENTATION BY P2 BEFORE R1, R2 AND R3 DTD.10.9.02. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 26083 of 2002 ================== Dated this the 8th day of September, 2009 J U D G M E N T The 1st petitioner is a partnership firm and the 2nd petitioner is one of the partners of the firm. The firm possessed a licence under the Drugs and Cosmetics Act, which licence was renewed from time to time and at the time of filing the original petition, the same was valid till 31.12.2002. The firm consisted of nine partners. Out of the nine partners, one partner died on 11.6.2002. The petitioners' contention in this original petition is that on the death of one of the partners, there is no change in the firm and therefore, the petitioners are not liable to take out a fresh licence. The petitioners allege that respondents 1 to 3 are threatening closure of the petitioners' business on the ground that they are bound to apply for fresh licence, since the death of one parter amounts to change in the firm. The petitioners, therefore, seek the following reliefs: “i) issue a writ of prohibition prohibiting respondents 1, 2 and 3 from effecting closure of the petitioner's firm; ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1, 2 and 3 not to cancel or suspend the licence granted to the petitioner's firm for sale, distribution and storage of drugs and allied products till the expiry of the validity of Exhibit P4 that is upto 31.12.2002 iii) grant the prayer as prayed for in the C.M.P. And O.P.26083/02 2 iv) grant such other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.” 2. According to the petitioners, as per the terms of the partnership deed, death of a partner would not result in dissolution of the firm, but the business of the firm shall be continued by the remaining partners either with or without admitting new partner or partners. The petitioners would contend that the remaining partners had not chosen to induct any new partner in the firm and, therefore, there is absolutely no change in the constitution of the firm. Therefore, the firm is not liable to take out any fresh licence as directed by respondents 1 to 3. Consequently, they are entitled to continue the business on the strength of the original licence issued to the firm itself, is their contention. 3. Counter affidavits have been filed by respondents 1 and 3. Both would contend that on the death of one of the partners of the firm, there is a change in the firm and, therefore, the firm is liable to take out fresh licence. 4. I have considered the rival contentions in detail. 5. I am not satisfied that on the death of one partner, out of nine partners of a firm, there is a change in the constitution of the firm, especially when the partnership deed provides for continuation of the business of the firm, by the remaining partners on the death of one of the partners. Unless a partner is sought to be inducted, it O.P.26083/02 3 cannot be said that there is any change in the constitution of the firm on the death one of the partners. Therefore, on the ground of death of one of the partners the firm is not liable to take out a fresh licence and they are entitled to continue the business on the strength of the licence issued in the name of the firm. It is declared so. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge O.P.26083/02 4 S.SIRI JAGAN, J. ================== O.P.No. 26083 of 2002-E ================== J U D G M E N T 8th September, 2009 O.P.26083/02 5