RFA No.1468/2006 1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 8 TH DAY OF NOVEMBER 2013 PRESENT THE HON’BLE Dr. JUSTICE K.BHAKTHAVATSALA AND THE HON’BLE Mrs. JUSTICE B.S.INDRAKALA R.F.A.NO.1468/2006 (DEC) BETWEEN 1. Smt.Sandhya Anthraper Kurishingal, W/o Tarun Kurishingal, Aged about 29 years, Residing at No.CA-132, Riviera Retreat Thevara Waterfront, Kochi-682 013, Rep. by GPA Holder Smt.Cecilia Anthraper. 2. Mr.Vinod Vijayakumar, S/o.Dr.V.Vijayakumar, Aged about 28 years, Residing at No.4, Langford Gardens, Bangalore-560 025, Rep. by GPA Holder Dr.V.Vijayakumar. …APPELLANTS (By Sri.Udaya Holla, senior counsel for M/s.Holla & Holla, Advs.)
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RFA No.1468/2006
1
® IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF NOVEMBER 2013
PRESENT
THE HON’BLE Dr. JUSTICE K.BHAKTHAVATSALA
AND
THE HON’BLE Mrs. JUSTICE B.S.INDRAKALA
R.F.A.NO.1468/2006 (DEC)
BETWEEN
1. Smt.Sandhya Anthraper Kurishingal, W/o Tarun Kurishingal, Aged about 29 years, Residing at No.CA-132, Riviera Retreat Thevara Waterfront, Kochi-682 013, Rep. by GPA Holder Smt.Cecilia Anthraper.
2. Mr.Vinod Vijayakumar,
S/o.Dr.V.Vijayakumar, Aged about 28 years, Residing at No.4, Langford Gardens, Bangalore-560 025, Rep. by GPA Holder Dr.V.Vijayakumar. …APPELLANTS
(By Sri.Udaya Holla, senior counsel
for M/s.Holla & Holla, Advs.)
RFA No.1468/2006
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AND: 1. Manju Kathuria,
W/o.Virendra Kathuria, Aged about 52 years, Residing at Sompur Gate, Sarjapur Road, Bangalore-562 125.
2. M/s.Fortune Projects,
A partnership firm, Having its principal Place of business at No.98/1, 1st Floor, 1st Block, Koramangala, Sarjapura Main Road, Bangalore-560 034.
(By M/s.Kamal & Bhanu, Advs. for R-2 to 5, Sri.Ravi V.Hosmani, Adv. for proposed impleading
Respondents, 9 9-A, 13, 16, 18-A, 20 and 26 in I.A.I/2006, Smt.Lata Sawant, for M/s.Fortune Law Firm, Advs. for proposed Impleading respondents 1, 3, 3A, 4, 5, 5A, 6, 6A, 7, 7A, 8, 11, 12, 12A, 14, 15, 17, 18, 19, 21, 22 23, 23A, 24, 24A and 27 in I.A.I/06)
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This RFA is filed u/s.96 of CPC against the Judgment & Decree dt.19.4.2006 passed in O.S.No.1071/2003 on the file of the I Addl. Civil Judge (Sr. Dn.), Bangalore Rural Dist., Bangalore, dismissing the suit for declaration and injunction.
This Appeal being heard and reserved, coming on for pronouncement of Judgment, this day, Dr.Bhakthavatsala, J, delivered the following:-
JUDGMENT
A short question that arises for our consideration in
this appeal is -
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“Whether the dismissal of the suit in
O.S.No.1071/2003 on the file of I Addl. Senior
Civil Judge, Bangalore Rural District, Bangalore,
as not maintainable under Section 69(2) of the
Partnership Act, 1932 (in short, “the Act”) calls
for interference of this Court ?”
2. Our answer to the above point is in the affirmative
for the following reasons:
Appellants who are plaintiffs/partners of an
unregistered firm of M/s.Windsor Wings Developers, filed a
suit against the defendants in O.S.No.1071/2003 on the file
of Senior Civil Judge, Bangalore Rural District, Bangalore,
for the relief of declaration that the registered Sale deed
dated 26.04.2003 executed by defendant No.1 is invalid,
illegal and not binding on the plaintiffs, cancellation of the
sale deed and for permanent injunction restraining the
defendants 2 to 5 from selling, leasing, mortgaging or
otherwise alienating and interfering with their peaceful
possession of the suit schedule property. It is the case of the
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plaintiffs that the suit schedule property was purchased in
the name of the Firm and RTC entries stands in the name of
the Firm. In the year 2003, due to growth of I.T corridor in
the area, market value of the suit property was
`30,00,000/-. The plaintiffs, in the month of March 2003,
brought up the subject of selling the suit schedule property
to the 1st defendant. But, the 1st defendant objected for sale.
Again, when the plaintiffs raised the subject in the month of
November, 2003, the 1st defendant avoided the discussion
and the plaintiffs suspected the conduct of the 1st defendant
and they made enquiries about the suit schedule property in
the Office of the Sub-Registrar and discovered that the 1st
defendant, who had no authority to sell the immovable
property belonging to the Firm, without their consent had
executed a sale deed dated 26.4.2003 on behalf of the Firm,
in favour of the 2nd defendant for a consideration of
`16,66,620/- though the property was worth more than
`30,00,000/-. It is contended that the sale deed is invalid,
void, fraudulent and the same is executed clandestinely with
an intention of cheating the plaintiffs. In para-14 of the
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plaint, it is pleaded that defendants 2 to 5 are trying to
dispossess the plaintiffs and also trying to alienate the suit
schedule property and therefore filed the Suit for the relief,
as prayed for.
3. For the purpose of convenience ‘the appellants’ and
‘the respondents’ are hereinafter referred to as ‘the plaintiffs’
and ‘the defendants’ as arrayed in the Suit.
4. The defendants entered appearance and filed their
written statement.
5. The defendants have taken up the contention that
the Suit is barred under Section 69(2) of the Partnership Act.
6. The trial Court framed as many as eight issues and
the issue No.5 is on the point-
“Whether the plaintiffs prove that the suit of
the plaintiffs is not maintainable in view of
Section 69(2) of the Partnership Act ?”
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The above-said issue No.5 was treated as preliminary
issue. The trial Court, after hearing on the preliminary
issue, answered the same in the affirmative in favour of the
defendants and dismissed the Suit as not maintainable
under Section 69(2) of the Act. This is impugned in this