IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 FAO.No. 67 of 2010() -------------------- OS.201/2008 of SUB COURT, SULTHAN BATHERY .................... APPELLANT/PETITIONER/PLAINTIFF:- ---------------------------------------------------- U.KUTTAPPAN NAIR, AGED 63 YEARS, S/O.DHAKSHAYANI AMMA, UMMELI HOUSE, KOTTAMPARAMBU, CHELAVOOR AMSOM DESOM, POST KOTTAMPARAMBU, KOZHIKODE TALUK,PIN-673008. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): RESPONDENTS/DEFENDENDANTS -------------------------------------------------------------------------- 1. M.P.KOMALAVALLY AGED 50 YEARS, W/O.LATE U.CHANDRAN NAIR, D/O.LATE P.C.DHAMODHARAN NAIR, KOMALA BHAVAN, P.O.,KAKKVAYAL ,WAYANAD. 2. C.K.SARITHA, AGED 30 YEARS, D/O.LATE U.CHANDRAN NAIR. KOMALA BHAVAN, P.O.,KAKKVAYAL ,WAYANAD. 3. C.K.SUNITHA,AGED 27 YEARS, D/O.LATE U.CHNADRAN NAIR. KOMALA BHAVAN, P.O.,KAKKVAYAL ,WAYANAD. 4. C.K.ARUNKUMAR, AGED 22 YEARS, S/O.LATE U.CHANDRAN NAIR. KOMALA BHAVAN, P.O.,KAKKVAYAL ,WAYANAD. 5. V.T.MURALIDHARAN,AGED 45 YEARS, S/O.CHANDU NAIR,V.T.M.COMMUNICATION, BINDU NIVAS, KUNNAMPATTA P.O.,WAYANAD. FAO.No. 67 of 2010 - 2 - 6. SANKARAN, ABOUT 50 YEARS, NAGARJUNA AYRUVEDIC SHOP, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 7. K.J.ROY,ABOUT 38 YEARS, MAHARANNI JEWELLERS, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 8. K.J.BINU, ABOUT 35 YEARS, K.J.ENTEREPRISES AND FINANCES, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 9. KUTTIYAMMA, ABOUT 52 YEARS, VOG SIX BARBER SHOP, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 10. M.K.ABDULLA, ABOUT 45 YEARS, NITHA GAS AGENCIES, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 11. HARSHAN, ABOUT 38 YEARS, HARSHA ELECTRONICS, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 12. V.K.SURESH, ABOUT 38 YEARS, SRUTHI MOBILES, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 13. SHAJI, ABOUT 40 YEARS, NET WORLD INTERNET KAFE, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 14. NAZAR, ABOUT 47 YEARS, GARMENT SHOP, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 15. KAREEM, ABOUT 40 YEARS, K.T.K.ELECTRONICALS, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 16. PRASAD, ABOUT 38 YEARS, GOLDSMITH, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 17. THOMAS, ABOUT 40 YEARS, NOBLE PRESS, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 18. P.K.PURUSHOTHAMA PANICKKER, ABOUT 25 YEARS, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 19. V.T.VIJAYAN, AGED 43 YEARS, S/O.CHANDU NAIR, MOOVI HOUSE, P.O.MARRIKUNNU, CALICUT-12. FAO.No. 67 of 2010 - 3 - 20. MANAGING DIRECTOR, KERALA STATE CO-OPERATIVE AGRIUCLTURE AND RURAL DEVELOPMENT BANK. STATUE JUNCTION, THIRUVANANTHAPURAM-1. 21. REGIONAL MANAGER, REGIONAL OFFICE, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK. 22. SECRETARY, BANKMEN'S CLUB, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 23. UMMER, AGED 37 YEARS, KUJAK, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 24. ANILKUMAR,ABOUT 39 YEARS, DOCUMENT WRITER, ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 25. BUREAU MANAGER, MADHYAMMAM KALPETTA. ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 26. K.SATHEESAN, ABOUT 36 YEARS, UDUPPI HOTEL, AFFAS BUILDING, KALPETTA. 27. MANAGER, VRINDAHVAN HOTAL AND BAR., ARUN TOURIST HOME, MAIN ROAD, KALPETTA, WAYANAD. 28. MANAGER,AURN TOURIST HOME, KELPETTA, WAYANAD 29. UNION ENTERPRISES, REPRESENTED BY PARTNER M.P.KOMALAVALLY, AGED 50 YEARS,W/O.LATE U.CHANDRAN NAIR, D/O.LATE P.C.DAMODHARAN NAIR P.C., KOMALA BHAVAN HOUSE,P.O.KAKKAVAYAL,WAYANAD. ADV. SRI.BECHU KURIAN THOMAS FOR R1TO R4 SRI.R.BINDU (SASTHAMANGALAM) FOR R19 SRI.PRASANTH M.P FOR R19 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.67 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of June, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The plaintiff in a suit for rendition of accounts of a firm which is defendant no.29, is the appellant before us. A composite order passed on an application for temporary injunction and an application for appointment of receiver is under challenge. Though an order refusing to appoint receiver and an order refusing an order of temporary injunction are appealable, the learned counsel for the contesting respondents, justifiably, points out that a single appeal against both those orders may not be entertained. Even if, going by practice and procedure, we are inclined to treat it as an appeal against two orders, such an appeal could be considered only FAO67/10 -: 2 :- if it filed as one such, also by making payment of court fee payable on both the appeals, if filed separate. We find that only an amount of Rs.25/- has been paid on the memorandum of appeal, which is the fee on one appeal. 2.We notice that the main thrust of the arguments on behalf of the appellant was on the question of appointment of receiver and therefore, we treat this as an appeal only against the order refusing to appoint receiver. 3.Going by his pleadings, the plaintiff and the husband of the first defendant are brothers. Some time in 1998, they came together and it is stated that there was a partnership business. According to the plaintiff, with the passage of time, his brother fell ill and ultimately died in 2008 and it was only thereafter that the first defendant, the widow and the children refused to account and provide the plaintiff with the profit and loss account of the firm and also to give him the FAO67/10 -: 3 :- share of profits. The learned senior counsel appearing for the appellant-plaintiff argued that the impugned order goes to the extent of holding that the plaintiff has not made out a good prima facie case and as such, would not be entitled to relief finally, in the main matter. She further argued that the document which was the trump-card of the contesting defendants to show that the plaintiff had retired from the partnership some time in 2004, was subjected to forensic examination from a criminal case instituted on a complaint by the appellant and the expert has opined that the document does not bear the signature of the plaintiff. Before us, along with an interlocutory application, a photo copy of the expert evidence is placed on record. She also argued that on the totality of the facts and circumstances and the near relationship between the parties, the court below should have persuaded itself to hold that the transaction pleaded by the plaintiff has to be prima facie accepted. With the aforesaid, the learned senior FAO67/10 -: 4 :- counsel appearing for the appellant pointed out that it would be sufficient, if the impugned order is stayed and the matter remitted for consideration in the light of the expert evidence. 4.Per contra, the case of the contesting defendants appears to be that in 2004, the plaintiff had retired from the firm. To evidence this fact, they produced before the court below, the communication by the Registrar of Firms and the registered document under which the plaintiff is shown to have retired by settling his share, in favour of the other partners. It is this document which is disputed by the plaintiff and which is now the subject matter of a proceedings before the criminal court in relation to which the expert opinion is stated to have been placed before that court. The learned counsel for the contesting defendants states that his clients have serious objections to the opinion of the expert and they would raise that, when the FAO67/10 -: 5 :- report, which is only opinion evidence, is sought to be relied on against them before the criminal court and it would be too premature for the plaintiff to refer to a copy of that report which is not even part of the records of this case. 5.We caution ourselves that what is placed before us as additional material is nothing but a photo copy of some material stated to be available in connection with a criminal case. We also stand reminded of the evidentiary value of the opinion evidence of the expert before that is put to examination before the court in terms of the Evidence Act. With that, we have to excuse ourselves from looking into that material at all, at this stage. Even if we are to vacate the impugned order refusing to appoint receiver, there can be no remit to consider the opinion evidence of the expert by the civil court in the interlocutory matter when no such material was available before the civil court when the receiver petition was taken up and argued. FAO67/10 -: 6 :- 6.The undisputed situation is that going by the endorsement of the Registrar of Firms, the plaintiff is no more a partner of the firm. That is a statutory document. The Partnership Act and the Rules framed under that Act provide that it would be open to the court to ultimately direct the Registrar of Firms to rectify its register in terms of directions as may be found necessary at the conclusion of any adjudication. However, we do not deem it appropriate for the Court to meddle with the situation available on the face of the register of firms, as of now. An order appointing a receiver can be issued on an application for temporary injunction and an order to the vice versa could also be issued by a civil court, subject to the rules. For the aforesaid reasons, while dismissing this appeal, we clarify that the court below will decide the matter untrammelled by any findings or observations that may appear to be contained in FAO67/10 -: 7 :- the impugned order, as also in this judgment. It is further clarified that no such observations or findings would bind the parties before any other court or authority including the criminal court. No costs. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- S.S.Satheesachandran, Judge. Sha/3006 -true copy- P.S.to Judge.