-1- Regular Second Appeal No. 2321 of 1995 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: January 20, 2011. Regular Second Appeal No. 2321 of 1995 (O&M). Sham Kumar Kohli ... Appellant VERSUS Ravinder Kumar ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Sumeet Mahajan, Senior Advocate, with Mr. Sham Lal Bhalla, Advocate, and Mr. Vaibhav Sehgal, Advocate, for the appellant. Mr.Arun Jain, Senior Advocate, with Mr.Amit Jain, Advocate, for the respondent. -.- MOHINDER PAL, J. Plaintiff-respondent Ravinder Kumar filed the instant suit against defendant-appellant Sham Kumar Kohli for dissolution of the partnership firm M/s. Sham Kumar Kohli -2- Regular Second Appeal No. 2321 of 1995 (O&M). Ravinder Kumar (hereinafter referred to as the `partnership firm'), for rendition of accounts and for separating the 40 per cent share of the plaintiff-respondent from the partnership property No.33, Shop-cum-Flat, Bahadur House, Ludhiana, described in the head note of the plaint (hereinafter referred to as the `suit property') and, further, for separate possession of the suit property after dissolution and division of the suit property. Vide judgment and decree dated 1.3.1998 passed by the trial Court, the suit of the plaintiff-respondent was decreed to the following effect:- “ xx xx xx. In view of my findings issue-wise above, a preliminary decree is passed in accordance with Rule 15 of Order XX of the C.P.C dissolving the firm M/s. Ravinder Kumar Sham Kumar w.e.f 9.12.1982, with share of the plaintiff as 40% and of the defendant 60% in the partnership, and also in the properties mentioned in head note of the judgment. The defendant shall be the accounting party with plaintiff also to assist the accounts by producing all the documents which are in possession of the plaintiff. I appoint Sh. S.K. Aggarwal, Advocate, Ludhiana, who shall go into accounts of -3- Regular Second Appeal No. 2321 of 1995 (O&M). partnership and submit his report within six months from the date of service of notice to him. His fee is fixed at Rs.2000/- (Rupees two thousand) to be borne equally by the parties and in default of any of the party contributing to the fee of the Local Commissioner, the other party shall pay the entire amount to the Local Commissioner, and it shall be taken as costs of the suit. Suit of the plaintiff is decreed with costs. Preliminary decree be accordingly prepared.” The defendant-appellant went in appeal against the aforesaid preliminary decree passed by the trial Court. The appeal of the defendant-appellant was dismissed by the lower appellate Court vide judgment and decree dated 17.4.1995. Hence this appeal by the defendant-appellant. I have heard Mr. Sumeet Mahajan, Senior Advocate, assisted by Mr. Sham Lal Bhalla, Advocate, and Mr. Vaibhav Sehgal, Advocate, appearing for the appellant and Mr.Arun Jain, Senior Advocate, assisted by Mr.Amit Jain, Advocate, appearing for the respondent and have gone through the records of the case. Plaintiff and defendant, along with Jagan Nath Malhotra, entered into partnership to erect a shop-cum-flat and to start a hotel. Partnership deed dated 17.12.1975 was reduced into writing. However, this partnership was dissolved on -4- Regular Second Appeal No. 2321 of 1995 (O&M). 7.3.1977 when Jagan Nath Malhotra retired from the partnership after receiving his share. However, plaintiff and the defendant again started the partnership firm and partnership deed dated 9.3.1977 was executed. They purchased the suit property in auction from the Improvement Trust, Ludhiana, and construction was raised thereon by the plaintiff and the defendant in the name of the partnership firm after taking loan from the Punjab Financial Corporation. To the raising of loan from the Punjab Financial Corporation, the Improvement Trust had issued a `No Objection Certificate' in favour of the partnership firm. Common wall of the suit property was sold to one Smt.Raj Kumari Bajaj, owner of the adjoining building i.e No.34, for Rs.4500/-. This amount was put in the account of the partnership firm. Ist, 2nd and 3rd floors of the suit property were given on rent to the Telephone Department at a monthly rent of Rs.2400/-. The rent received from the Telephone Department, used to be deposited in the account of the partnership firm bearing Account No.1900 which had been opened in Bharat Overseas Bank. When the defendant- appellant started negotiating as sole owner for leasing out the suit property to M/s. Sahara Savings & Finance Pvt. Ltd., the plaintiff-respondent sent notice to the said Company through counsel intimating his (plaintiff's) interest in the suit property. The defendant-appellant thereafter denied the right of the plaintiff- respondent in the suit property vide reply dated 10.10.1982. Per force, the plaintiff filed the instant suit praying for the relief as mentioned above. -5- Regular Second Appeal No. 2321 of 1995 (O&M). The defendant-appellant, in the reply filed to the suit, denied the claim of the plaintiff-respondent. Instead, he pleaded that Mohinder Kumar Khosla, brother of the plaintiff, had suggested the defendant to start hotel business and offered his technical services and experience, he (Mohinder Kumar Khosla) being an engineer. For his technical assistance, Mohinder Kumar Khosla had agreed to charge Rs.80,000/- from the defendant in all. Since the defendant could not pay this much amount to Mohinder Kumar Khosla, he agreed to pay 40 per cent of the rent of the building to him (Mohinder Kumar Khosla), which he was to accept in the name of his brother i.e plaintiff Ravinder Kumar, he (Mohinder Kumar Khosla) being an employee of the Improvement Trust. The defendant also averred that Rs.35,000/- had been received by the plaintiff from him (defendant) for his brother Mohinder Kumar Khosla out of total amount of Rs.80,000/-. As dispute arose between the parties, Mohinder Kumar Khosla started tampering with the records of the Improvement Trust regarding the suit property and got name of his brother i.e plaintiff Ravinder Kumar entered in the record of the Improvement Trust also. It was denied by the defendant that the suit property was purchased by the partnership firm in the auction conducted by the Improvement Trust. Instead, he stated that the suit property was purchased by him individually in the auction conducted by the improvement Trust and that he himself had raised construction thereon. Regarding the opening of the account in the name of the partnership firm, the defendant alleged that this account was -6- Regular Second Appeal No. 2321 of 1995 (O&M). opened in the Bank for making payment of Rs.80,000/- to Mohinder Kumar Khosla, brother of the plaintiff. The trial Court, after framing issues on the pleadings of the parties and recording their respective evidence, passed a preliminary decree in favour of the plaintiff, as quoted above. The appeal preferred by the defendant-appellant against the judgment and decree passed by the trial Court was dismissed by the lower appellate Court. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the appellant that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. Plaintiff-respondent Ravinder Pal , in his testimony as P.W.13, categorically deposed regarding the execution of the partnership deed (Exhibit P.W.13/1) dated 17.12.1975 between him (plaintiff), appellant and Jagan Nath Malhotra for commencing hotel business over the suit property after raising construction thereon. The defendant-appellant, in his written statement, had not disputed the execution of this deed. It is significant to note that it was on 17.12.1975 when partnership deed (Exhibit P.W.13/1) was executed that the auction for the suit property i.e Plot No.33, Shop-cum-Flat had been conducted by the Improvement Trust, Ludhiana. Obviously, the construction work was to start later on. Exhibit D.2 is the tender offer form which was filled before the start of the auction. It (Exhibit D-2) bears the signatures of the plaintiff and the defendant for the -7- Regular Second Appeal No. 2321 of 1995 (O&M). partnership firm M/s. Sham Kumar Kohli Ravinder Kumar. Still further, Exhibit D.1 is the auction bid sheet dated 21.10.1975 and it was signed by the defendant-appellant on behalf of the partnership firm. Both these documents (Exhibits D.1 and D.2) remained in the custody of the Improvement Trust, Ludhiana and their authenticity cannot be doubted merely because of the fact that Mohinder Kumar Khosla, brother of the plaintiff-respondent was working as an Engineer in the Improvement Trust, Ludhiana. In this case, Mr. K.S. Puri, Document Expert, has given evidence to prove that words “Sham Kumar Kohli Ravinder Kumar” in the auction bid sheet (Exhibit D.1) are in the hands of the defendant-appellant himself. The report of Mr. K.S. Puri, Document Expert, in this regard is Exhibit P.W.17/A, in which, after comparing the admitted signatures of the defendant on other documents i.e certain cheques etc., he opined that the words “Sham Kumar Kohli Ravinder Kumar” in Exhibit D.1 and the admitted signatures of the defendant on documents with which he had compared these words, were of one and the same person. It may be mentioned here that the defendant-appellant had himself given an application dated 8.12.1987 before the learned trial Court for examining Mr.K.S.Puri, Document Expert, as a Court witness, mentioning in the application that he (Mr.K.S.Puri) was a trustworthy expert known for his honest and integrity. There is, thus, no reason to doubt the opinion of the expert. It is admitted case of the parties that Account had been opened in Bharat Overseas Bank in the name of the -8- Regular Second Appeal No. 2321 of 1995 (O&M). partnership firm, of which defendant-appellant and plaintiff- respondent were partners. Another factor showing the partnership between the parties is the document/letter dated 2.12.1975 (Exhibit P.W.13/37) written by the defendant-appellant to the Improvement Trust, Ludhiana, for allowing the partnership firm to make payment of the plot in question by easy instalments. The defendant did not deny his signatures on Exhibit P.W.13/37. Thereafter, the defendant-appellant requested the Improvement Trust to issue `No Objection Certificate' in the name of the partnership firm for enabling the firm to get loan from the Punjab Financial Corporation. Exhibit P.W.13/39 dated 28.5.1976 is that letter which the defendant had sent to the Improvement Trust for that purpose. In this letter as well, the defendant mentioned about the allotment of the plot in question in the name of the firm. It was in response to the said letter of the defendant that the Improvement Trust, vide letter dated 1.6.1976 (Exhibit P.W.13/40) allowed permission to the firm to create second charge on the plot in favour of the Punjab Financial Corporation. Thereafter, the appellant himself applied to the Punjab Financial Corporation vide application Exhibit P.W.13/33 for the grant of loan. In this application also, the defendant admitted the partnership firm between him (defendant), plaintiff and Jagan Nath Malhotra, who had later on left the firm on 7.3.1977, as has been mentioned above. Still further, before raising construction on the plot, the defendant, vide application (Exhibit P.W.13/45), had applied for the sanction of the plan in the name of the firm. -9- Regular Second Appeal No. 2321 of 1995 (O&M). As is clear from the copy of the order (Exhibit P.W.13/64), the house tax assessment in respect of the suit property had been made in the name of the partnership firm. Vide receipt Exhibit P.W.13/59, payment of the house tax in respect of the suit property had been made by both the parties i.e plaintiff and the defendant. Subsequent payments of the house tax in respect of the suit property had also been made by both the parties on behalf of the partnership firm. When a dispute had arisen with the neighbour of the suit property i.e Smt. Raj Kumari Bajaj, owner of Plot No.34, the compensation amount was received from that neighbour in the name of the firm vide receipt Exhibit P.W.13/62. Harcharanjit Singh (P.W.10), partner of firm Bitla Iron and Hardware Store, Ludhiana, had proved on record bills Exhibit P.W.10/1 to Exhibit P.W.10/4 in respect of the sale of the materials to the partnership firm i.e M/s. Sham Kumar Kohli Ravinder Kumar. The payment to this firm was made vide receipt Exhibit P.W.10/5 from the account of the partnership firm maintained by the plaintiff and the defendant. Similarly, Jeev Karan Nath (P.W.14), partner of M/s. Prem Brick Works, deposed regarding the supply of bricks to the firm M/s. Sham Kumar Kohli Ravinder Kumar at Bhadaur House, Ludhiana, and that payment was made to his firm through cheque Exhibit P.W.13/29. He supplied 8000 bricks for Rs.1680/- to the partnership firm for which payment had been made to him view cheque Exhibit P.W.13/29. -10- Regular Second Appeal No. 2321 of 1995 (O&M). After construction,the building had been leased out to Telephone Department. Exhibit P.W.6/2 is the letter written by the District Manager, Telephones, to both the plaintiff and the defendant informing them about the vacation of the tenanted premises. Another portion of the suit property had been leased out to Bharat Overseas Bank and the lease deed in this regard had also been signed by both the parties i.e the defendant-appellant and the plaintiff-respondent as lessors. The lease amount was credited to the account of the partnership firm as is evident from the copy of the statement of account Exhibit P.W.5/4, which had been proved on record by Tilak Raj Batra (P.W.5), who was working as Steno in the Bharat Overseas Bank. This above evidence, led by the plaintiff could not be challenged by the defendant by leading any cogent evidence in rebuttal. Besides, various cheques had been issued by the plaintiff and the defendant jointly in the name of the Chairman, Improvement Trust, Ludhiana, from the joint account of the partnership firm. No doubt, the defendant-appellant took the plea that the plaintiff-respondent had not enough funds to enter into partnership with him (defendant), but in the presence of impeccable evidence led by the plaintiff-respondent,discussed above, this plea taken by the defendant-appellant pales into insignificance. Under the circumstances, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, -11- Regular Second Appeal No. 2321 of 1995 (O&M). which may give rise to any substantial question of law in the present appeal. Resultantly, this appeal is hereby dismissed being without any merit. ( MOHINDER PAL ) January 20, 2011. JUDGE ak