1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. REVIEW PETITION NO.30 OF 2009 IN APPEAL (L) NO.44 OF 2008 IN COMPANY PETITION NO.352 OF 1996 Raviathaappa Shetty & Anr. ...Petitioners. Vs. Raksha Kirit Gosher & Ors. ...Respondents. .... Mr.Rushabh Shah i/b. Raval Shah & Co. for the Petitioner. Mr.Darshan Mehta i/b. M/s.Dhruve Liladhar & Co. for Respondent No.1. Mr.Harinder Toor with Mr. O.Khaiyam i/b. Mishra & Co. for Respondent Nos.2 and 4. Ms.Sheetal Shah i/b. Mehta & Girdharilal for Respondent No.7. Mr.L.T.Satelkar for Official Liquidator. ..... CORAM : DR.D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. July 2, 2010. P.C. : By the Review Petition, the order which is sought to be reviewed, is an order of the Division Bench dated 12 February 2008, passed by a Division Bench, consisting of the Learned Chief Justice (Mr.Justice Swatanter Kumar as His Lordship then was) and the Hon’ble Mr.Justice J.P.Devadhar. 2 2. Briefly stated the facts are: A Petition was filed under Sections 582 and 583 of the Companies’ Act, 1956 for winding up of an unregistered partnership firm consisting of seven partners. By an order dated 9 January 2008, a Learned Single Judge of this Court allowed the Company Petition and directed that the firm be wound up. The Official Liquidator was appointed as Liquidator of the firm together with its assets and properties. An appeal was filed against the order of the Learned Single Judge on behalf of the firm and six partners. It is common ground that Appellants 2 to 7 and Respondents 1 to 5 were all partners of the firm. The First Respondent to the Appeal, was the original Petitioner in the Petition for winding up. Consent Terms were arrived at between Appellants 2 to 5 and the First Respondent on 12 February 2008, in terms of which, the appeal was disposed of. The Consent Terms envisaged that Appellants 2 to 5 would pay an amount of Rs.87 lakhs to the First Respondent against which the First Respondent would relinquish her share in the partnership firm in favour of Appellants 2 to 5. The manner in which the payment was to be made is provided in clause 5 of the Consent Terms. Clause 8 of the Consent Terms envisages that Appellants 2 to 5 will give on 3 franchisee basis part of the ground floor premises to the First Respondent for selling food items and that the First Respondent in turn would hand back possession on the payment of a sum of Rs.87 lakhs. 3. The submission which has been urged on behalf of the Review Petitioners, who are partners of the firm, is that such an arrangement could not have been arrived at between some of the partners inter se, once an order of winding up was passed. The Consent Terms, inter alia provide in clause 8, for the handing over of the Ground Floor premises to the First Respondent. In paragraph 2(c) of the Review Petition, it has been averred that these premises are owned and occupied by the partnership firm. The Consent Terms constitute a private arrangement which was arrived at between Appellants 2 to 5 and the First Respondent. There is merit in the submission which has been urged on behalf of the Review Petitioners that such an arrangement cannot be arrived at between some of partners once a final order of winding up was passed in the Company Petition which would enure to the benefit of the general body of the creditors as well. At least prima facie, it 4 would appear that by the Consent Terms an effort has been made in clause 8 to deal with property which the Review Petitioners have stated, constitutes property of the partnership. Counsel appearing on behalf of the First Respondent has stated before the Court that apart from the payment of Rs.5 lakhs, no further payments have been made and the First Respondent would also have applied before the Court for the restoration of the appeal. 4. Sufficient ground has, therefore, been made out for reviewing the order of this Court by which the Appeal was disposed of in terms of the Consent Terms tendered before the Court by some of the parties to the proceedings in appeal, as noted earlier. The Review Petition is accordingly allowed by recalling the order dated 12 February 2008. The appeal shall stand restored to file and shall be placed for admission before the Division Bench in accordance with the roster of work. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.)