IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15896 of 2008(P)
1. ACHAMMA JOSE, W/O. JOSE,
... Petitioner
Vs
1. THE KEERTHI FINANCE,
... Respondent
2. SUNNY UKKEN, S/O. UKKEN VARGHESE,
3. ANTONY KATTUKARAN,
4. SHERLY JOSE, D/O. MANIYAKU JOSE,
5. THOMAS CHERUVATHUR,
6. KUNJUVAREED,
7. SUBHADRA BALAN, W/O. BALAN,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.P.V.CHANDRA MOHAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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W.P.C No.15896 OF 2008
--------------------------------
Dated this the 18th day of February 2010
JUDGMENT
Petitioner is the plaintiff in O.S No.2855 of 2004 on the
file of the 3rd Additional Munsiff Court, Thrissur. The above suit is
one for dissolution of a partnership firm, the 1st defendant in the
suit. Petitioner and Respondents 2 to 7 are the partners of the firm,
the 1st respondent. Alleging mismanagement and misappropriation
of the assets of the firm by the respondents 2 to 7, the suit was laid
by the petitioner/plaintiff seeking its dissolution and settlement of
accounts. The respondents resisted the suit claim by filing a written
statement. An application for appointment of a receiver over the 1st
respondent was applied for by the plaintiff to which also
respondents 2 to 7/defendants filed objections. An advocate
commissioner appointed by the court after conducting local
inspection filed a report. The learned Munsiff after hearing both
sides, declined the request of the petitioner for appointing a
receiver to take over the assets and to manage the firm. Appeal
preferred by the plaintiff challenging the order of the learned
Munsiff was also turned down by the District Judge. Propriety and
correctness of the judgment passed by the District Judge confirming
the order dismissing the application for appointment of a receiver is
challenged in the writ petition invoking the supervisory jurisdiction
W.P.C No.15896 OF 2008 Page numbers
vested with this court under Article 227 of the Constitution of India. .
2. I heard the counsel on both sides. Learned counsel
for the petitioner inviting my attention to Ext.C1 report filed by the
advocate commissioner contended that when the commissioner
visited the business concern of the 1st respondent firm, not only the
records were not made available to the commissioner, but, one of
the defendants with the account books had made himself scarce
fleeing away from the scene. The circumstance is sufficient,
according to the counsel, to indicate that the case canvassed by the
petitioner that the assets and funds of the 1st respondent are
misappropriated and mismanaged by the defendants, the other
partners, and this is a fit case where it is just and convenient to
appoint a receiver. On the other hand, the learned counsel for the
respondents submitted that both the courts after meticulously
considering the facts and circumstances presented with reference to
the pleadings of the parties, and materials produced, have rightly
and correctly concluded that no appointment of receiver over the
assets of the firm is warranted in the case. So much so, the learned
counsel for the respondents submitted that interference with the
orders of the inferior courts declining the request of the plaintiff for
appointing a receiver may not be made in exercise of the writ
jurisdiction of this court.
W.P.C No.15896 OF 2008 Page numbers
3. Perusing Ext.P2 order passed by the learned Munsiff
and Ext.P3 judgment passed by the learned District Judge in appeal,
I find that both courts have concurrently came to the conclusion
that this is not a fit case where it is just and convenient to appoint a
receiver as canvassed by the plaintiff. It is also seen that the suit
instituted in 2004 is almost ripe for trial. When that be the case,
only on the statement made in the commission report even
assuming that there was some misconduct on the part of one of the
partners at the time the commissioner conducted the local
inspection, I find it is not proper and appropriate to interfere with
the management of the firm by appointing a receiver. It is open to
the petitioner to move for appointment of a receiver in case a
preliminary decree is granted declaring the dissolution of the firm
and directing settlement of accounts between the partners and
provided cause thereof is established at that stage. The impugned
order will not stand in the way of the plaintiff in applying for
appointment of a receiver subject to what is stated above. Subject
to the above observation, the writ petition is closed directing the
court below to dispose the suit as expeditiously as possible
untrammelled by any of the observations made in its Ext.P2 order or
Ext.P3 judgment rendered by the learned District Judge in the
appeal. Sd/-
S.S.SATHEESACHANDRAN
vdv //TRUE COPY// JUDGE