IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 13584 of 2011(W) ----------------------------------------- PETITIONER(S): ------------------------- 1. K.SASIDHARAN NAIR,AGD 63 YEARS, S/O.LATE SRI.SREEDHARAN NAIR,SANTHA BHAVANATHU HOUSE,THALAYOLAPARAMBU.P.O,KOTTAYAM-686 605. 2. S.UNNIKRISHNAN,AGED 58 YEARS, S/O.SREEDHARAN NAIR,SANTHA BHAVANATHU HOUSE, THALAYOLAPARAMBU.P.O,KOTTAYAM-686 605. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------------------- 1. CIRCLE INSPECTOR OF POLICE,VAIKOM, KOTTAYAM - 686 605. 2. SUB INSPECTOR OF POLICE,THALAYOLAPARAMBU,KOTTAYAM-686 605. 3. SANTHA MOHAN,D/O.LATE SRI.SREEDHARAN NAIR, SANTHA BHAVANATHU HOUSE,THALAYOLAPARAMBU.P.O, KOTTAYAM-686 605. 4. SAJUMON.K.S,S/O.LATE SRI.SREEDHARAN NAIR, SANTHA BHAVANATHU HOUSE,THALAYOLAPARAMBU.P.O, KOTTAYAM-686 605. 5. SAJEETH MOHAN,S/O.LATE MOHAN KUMAR, SANTHA BHAVANATHU HOUSE,THALAYOLAPARAMBU.P.O, KOTTAYAM-686 605. 6. SANTHOSH MOHAN,S/O.LATE MOHAN KUMAR, SANTHA BHAVANATHU HOUSE,THALAYOLAPARAMBU.P.O, KOTTAYAM-686 605. R1 & R2 BY GOVERNMENT PLEADER SMR. C.M. CHARISMA R4 & R6 BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY, SRI.ANOOP.V.NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13584/2011 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PARTNERSHIP DEED DTD. 5/5/1990. P2: COPY OF THE DEED OF RECONSTITUTION OF PARTNERSHIP DTD. 20/03/2003. P3: COPY OF THE REPLY NOTICE DTD. 21/04/2011 ISSUED BY THE FIRST PETITIONER TO THE 3RD RESPONDENT. P4: COPY OFTHE FL-3 LICENSE. P5: COPY OF THE JUDGMENT DTD. 29/11/2010 PASSED BY THIS HONOURABLE COURT IN ITA NO.800 OF 2009. P6: COPY OF THE JUDGMENT DTD. 4/4/2011 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.10272 OF 2011. P7: COPY OF THE NOTICE DTD. 21/04/2011 ISSUED TO THE DEPUTY COMMISSIONER OF EXCISE. P8: COPY OF THE NOTICE DTD. 26/04/2011 ISSUED TO THE COMMISSIONER OF EXCISE. P9: COPY OF THE LETTER NO.X.C.7-7214/10 DTD. 23/03/2011 OF THE COMMISSIONER OF EXCISE. P10: COPY OF THE LETTER NO.X.C.7-7214/10 DTD. 28/03/2011 OF THE COMMISSIONER OF EXCISE. P11: COPY OF GENERAL POWER OF ATTORNEY DTD. 28/03/2003. P12: COPY OF THE PETITION DTD. 11/05/2011 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. P13: COPY OF THE BALANCE SHEET AS ON 31/03/2008. P14: COPY OF THE BALANCE SHEET AS ON 31/03/2009. P15: COPY OF THE EXT.P2 ISSUED BY THE BANK. P16: COPY OF THE DISSOLUTION DEED PREPARED BY THE CHARTERED ACCOUNTANT. P17: COPY OF THE AGREEMENT PREPARED BY THE CHARTERED ACCOUNTANT. P18: COPY OF THE LETTER DTD. 5/04/2011 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE COMMERCIAL TAX OFFICER, VAIKOM. Kss ..2/- ..2.... WPC.NO.13584/2011 W P19: COPY OF THE MINUTES OF THE HOTEL PANKAJ DTD. 20/11/2010. P20: COPY OF THE LETTER DTD. 19/11/2010 ISSUED TO THE BANK. P21: COPY OF THE DEED OF CANCELLATION OF POWER OF ATTORNEY DTD. 26/03/2011. P22: COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: R6(A): COPY OF THE POWER OF ATTORNEY EXECUTED BY THIS RESPONDENT IN FAVOUR OF HER YOUNGEST BROTHER DTD. 12/03/1990. R6(B): COPY OF THE FL LICENSE GRANTED TO THIS RESPONDENT AS PER ORDER DTD. 18/04/1990 AS LICENSE NO.FL3 NO.32/90-91. R6(C): COPY OF THE RECONSTITUTION DEED DTD. 20/03/2003. R6(D): COPY OF THE CANCELLATION DEED DTD. 12/11/2010 EXECUTED BY THIS RESPONDENT IN FAVOUR OF K.S.SAJUMON. R6(E): COPY OF THE COMPLAINT FILED BY THE FIRST PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, VAIKOM DTD. 24/11/2010. R6(F): COPY OF THE ORDER ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM DTD. 23/12/2010. R6(G): COPY OF THE RECEIPT ISSUED BY THE THALAYOLAPARAMBU GRAMA PANCHAYAT DTD. 16/02/2011. R6(H): COPY OF THE CERTIFICATE ISSUED BY THE WELFARE FUND INSPECTOR, KERALA TODDY WORKER'S WELFARE FUND BOARD, KOTTAYAM DTD. 28/02/2011. R6(I): COPY OF THE AFFIDAVIT FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF EXCISE DTD. 28/02/2011. R6(J): COPY OF THE CERTIFICATE ISSUED BY THE ABKARI WORKERS WELFARE FUND INSPECTOR DTD. 1/3/2011. R6(K): COPY OF THE CERTIFICATE GIVEN BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KADUTHURUTHY DTD. 4/3/2011. R6(L): COPY OF THE CERTIFICATE ISSUED BY THE COMMERCIAL TAX OFFICER, VAIKOM DTD. 10/03/2011. Kss ...3/- ...3..... WPC.NO.13584/2011 W R6(M): COPY OF THE DEMAND DRAFT DTD. 21/03/2011 PURCHASED BY THIS RESPONDENT FROM THE STATE BANK OF TRAVANCORE, KOTTAYAM. R6(N): COPY OF THE APPLICATION SUBMITTED BY THIS RESPONDENT DTD. 29/03/2011 FOR RENEWAL OF THE FL3 LICENSE. R6(O): COPY OF THE JUDGMENT DTD. 4/4/2011 IN WP(C) NO.10272/2011. R6(P): COPY OF THE PROCEEDINGS ISSUED BY THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM DTD. 11/04/2011. R6(Q): COPY OF THE ORDER OF THE EXCISE COMMISSIONER DTD. 27/04/2011. R6(R): COPY OF THE ENDORSEMENT MADE IN THE FL3 LICENSE DELETING THE NAME OF THE POWER OF ATTORNEY HOLDER DTD. 28/04/2011. R6(S): COPY OF THE NOTICE GIVEN BY THIS RESPONDENT DTD. 11/04/2011. R6(T): COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHOOMI DAILY DTD. 21/04/2011. /TRUE COPY/ P.S.TO JUDGE Kss R. BASANT & K. SURENDRA MOHAN, JJ. ........................................... W.P.(C).NO.13584 OF 2011 ............................................. Dated this the 16th day of June, 2011. JUDGMENT Basant, J: The petitioners, two in number, have come to this Court seeking issue of directions under Article 226 of the Constitution to respondents 1 and 2 to afford police protection to them to function as working partners of a partnership firm by name Hotel Pankaj in Kottayam of which they along with respondents 3 to 6 are said to be partners. 2. According to the petitioners, they continue to be partners of the partnership firm Hotel Pankaj. It was initially constituted by Ext.P1 partnership deed dated 5.5.1990 with effect from 1.4.1990. Consequent to the death of one of the partners, it was re-constituted as per Ext.P2 dated 20.3.2003. The petitioners as well as respondents 3 and 4 are siblings and respondents 5 and 6 are the children of the third respondent. 3. The bone of contention between them is an FL-3 licence dated 18.4.1990, (copy produced as Ext.R6(b) )issued W.P.(C).NO.13584 OF 2011 : 2 : in the name of the fourth respondent as power of attorney holder of the third respondent. The petitioners have a case that the rights over the FL-3 licence vests in the partnership and not exclusively on the third respondent or her power of attorney holder, the 5th respondent. According to the petitioners, they are partners of the firm to which firm must enure the benefits of Ext.R6(b) licence. The business is continuing. The petitioners are prevented by goondas engaged by respondents 3 and 4 from entering the partnership premises. It is in these circumstances that the petitioners have come to this Court seeking issue of directions under Article 226 of the Constitution. 4. Respondents 3 to 6 have entered appearance. They accept Ext.P1 partnership deed dated 5.5.1990. They accept that the partnership was reconstituted as per a deed of re- constitution dated 20.3.2003. But, according to them, Ext.P2 is not their deed of re-constitution. Actually, Ext.R6(c) is the date of re-constitution. According to them, Ext.P2 re- constitution deed was fraudulently fabricated by the petitioners. According to the respondents, there was W.P.(C).NO.13584 OF 2011 : 3 : stipulation-8 in the partnership deed. Ext.R6(c), which is significantly found to be not there in Ext.P2 partnership deed. 5. Respondents 3 to 6 have a further contention that the partnership is not in existence now. It was one at Will and it has now been dissolved by notice issued by the third respondent. Petitioner No.1 admits having received the notice of dissolution of partnership, but according to the petitioners, such a notice does not terminate the partnership. 6. Respondents 3 to 7 have a case that Ext.R6(b) licence belongs exclusively to the third respondent. It has now been renewed in her name and the name of the fourth respondent which appears in the licence as power of attorney holder of the 3rd respondent has now been deleted. Though originally Ext.R6(b) was issued in the name of the fourth respondent as power of attorney holder of the third respondent, after renewal necessary alterations have been carried out in the licence and the licence now stands in the name of the third respondent. Relying on clause-8 of Ext.R6(c), it is contended that all the partners have agreed that only the third W.P.(C).NO.13584 OF 2011 : 4 : respondent is entitled for exclusive rights in respect of the licence. 7. Various circumstances have been pressed into service and various contentions have been raised by the counsel for rival contestants. We must alertly note that we are called upon to invoke and exercise our extra ordinary constitutional jurisdiction under Article 226 of the Constitution. That there was a partnership is admitted. Ext.P1 dated 5.5.1990 is admitted. Re-constitution by deed dated 20.3.2003 is also admitted. There is difference between the parties as to which is the genuine deed of re-constitution – Ext.P2 or Ext.R6(c). The crucial difference between Ext.P2 and Ext.R6(c) relevant for our purpose is clause-8 in Ext.R6(c) which declares that the third respondent has exclusive rights in respect of Ext.R6 (b) FL-3 licence. 8. Admittedly, the third respondent has now issued notice that the partnership is dissolved. The first petitioner admits having received notice. Ext.R6(t) is the paper publication by the third respondent of notice to all the partners of dissolution of the firm. Whether we go by Ext.P2 or W.P.(C).NO.13584 OF 2011 : 5 : Ext.R6(c), it is seen that the partnership is one 'at will'. It is also conceded that whether we go by Ext.P2 or Ext.R6(c), there is a clause for arbitration in the deed of partnership. 9. We are also informed that another writ petition is pending before this Court by which the petitioners have challenged the renewal of the license in favour of the third respondent for the current year. In that proceedings, contention has been raised that renewal in favour of the third respondent is not justified and the renewal must have been in the name of the partnership. That dispute remains and has not been resolved. 10. We have rendered our anxious consideration to all the relevant inputs. We are satisfied that exercising our jurisdiction under Article 226, the crucial dispute as to whether Ext.P2 or Ext.R6(c) is the real deed of re-constitution on 20.3.2003 cannot be resolved. Partners must be left to resolve that dispute by initiating appropriate proceedings before the civil court or if there is an arbitral clause in the partnership deed to cover the same by initiating proceedings in arbitration. If a civil suit is maintainable, the question will W.P.(C).NO.13584 OF 2011 : 6 : have to be decided by the civil court or if there is a binding arbitral clause in the agreement, the dispute will have to be resolved by the arbitrator. At any rate, we intend only to note that we need not, cannot or should not take upon ourselves the burden to resolve the controversy between the contestants as to whether Ext.P2 or Ext.R6(c) really represents the deed of re-constitution. 11. So, is the dispute relating to the person entitled to claim rights under Ext.R6(b) licence. Both sides have relied upon circumstances in support of their contention as to whether the licence belongs exclusively to the 3rd respondent or to the partnership firm. We are of the opinion that the said question also need not be decided by us in the proceedings under Article 226 of the Constitution. It is unnecessary to refer to precedents specifically. It is trite that such complicated disputes on facts between the parties cannot be resolved in proceedings before this Court under Article 226. Parties must be left to seek their reliefs before appropriate legal forum. 12. Lastly and finally, the learned counsel for the W.P.(C).NO.13584 OF 2011 : 7 : petitioners submits that even assuming that the partnership is dissolved, notice of dissolution by the 3rd respondent cannot ipso facto put an end to all the activities of the partnership. Until appropriate arrangements are made by the competent authorities in proceedings initiated by either, there may be a direction to afford protection to the petitioners to participate in the activities of the firm, it is prayed. The petitioners are working partners both under Exts.P2 and R2(c), points out the counsel. We are of the opinion that the petitioners must seek such reliefs to entitle them to participate in the business of the firm either from the civil court, if proceedings are maintainable before the civil court, or under Section 9 of the Arbitration and Conciliation Act , if proceedings are to be initiated before the arbitrator. At any rate considering the nature of disputes and contentions of the parties, we do not perceive any need to permit the petitioners to be armed with an order of police protection. 13. We are in these circumstances satisfied that this petition is only deserves to be dismissed. W.P.(C).NO.13584 OF 2011 : 8 : 14. In the result: This petition is dismissed. We may at the risk of repetition reiterate that we have not intended to express any opinion on the factual disputes raised by the parties and no observations in this judgment can be taken advantage of by any of the parties in the proceedings to be initiated by them as pending before courts/authorities. 15. The learned counsel for the petitioners seeks a further clarification and we do say, though it is not strictly necessary, that no observation herein should weigh with the court before which W.P.(C).No.12785/2011 is pending. Sd/= R. BASANT, JUDGE. Sd/= K. SURENDRA MOHAN, JUDGE. /true copy/ P.S. to Judge. cl