J.Indirani vs The Registrar Of Firms on 7 June, 2011

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :  07.06.2011

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.NOs.15660 and 20816 of 2010
and
M.P.Nos.1 and 1 of 2010


K.P.B.Jayakumar (deceased)
1.J.Indirani
2.J.I.Nivedha
3.J.Shri Priyanka
   (petitioners 1 to 3 are substituted as L.Rs.
    In the place of deceased petitioner vide
    order dated 18.04.2011 in M.P.No.1 of 2011)
    (2nd and 3rd petitioners are minors and
    represented by their natural guardian
    first petitioner) 				..  Petitioners in
					    W.P.No.15660 of 2010

1.B.Saraswathy
2.B.Parimala
3.B.Pavizhaselvi
4.N.Bhoobalan				..  Petitioners in
					    W.P.No.20816 of 2010


	Vs.

1.The Registrar of Firms,
   District Registrar Office,
   Coimbatore-18.
2.M/s.Shri Usha Oil Extractors,
   rep by its Partner,
   N.Bhoobalan,
   No.246,T.V.Samy Road East,
   R.S.Puram, Coimbatore-2.
3.Mrs.B.Saraswathy
4.B.Parimala
5.B.Pavalaselvi
6.N.Bhoobalan				..  Respondents in
					    W.P.No.15660 of 2010 


1.K.P.Balakrishnan Oil Mills Private Limited,
   65, Sasthri Road,
   Ram Nagar,
   Coimbatore-641 009.
2.The Registrar of Companies,
   Tamilnadu Coimbatore
    Stock Exchange Building,
   2nd Floor, 683,Trichy Road,
   Singanallur, Coimbatore-641 005.		..  Respondents in
					    W.P.No.20816 of 2010

W.P.No.15660 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records pertaining to the order passed by the first respondent in his proceedings No.6393/A2/2010, dated 13.07.2010 and quash the same and consequently, to direct the first respondent to conduct fresh enquiry after providing sufficient opportunity to the petitioner to raise his objections. 

W.P.No.20816 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the Registration of the first respondent with the second respondent and quash the Certificate of Incorporation bearing Corporate Identity Number U15143TZ2010PTCO15737 dated 6.1.2010, by which the first respondent company was incorporated in Coimbatore in the State of Tamil Nadu and consequently, to direct the second respondent to delete the name of the first respondent from the Register of Companies. 

	For Petitioners	  :  .Mr.P.V.S.Giridhar
			      for Mr.S.Senthilkumar in W.P.No.15660/2010
			     Mr.P.H.Arvindh Pandian in W.P.No.20816/2010

	For Respondents	  :  .Mr.P.V.S.Giridhar
			      for Mr.S.Senthilkumar
			      for R-1 in W.P.No.20816/2010
			      Mr.P.H.Arvindh Pandian 
			      for RR3 to 6 in W.P.No.15660/2010

- - - - 



COMMON ORDER
	
	Both writ petitions came to be posted on being specially ordered by the Hon'ble Chief Justice vide order, dated 9.3.2011.
	2.The first writ petition was filed by the original petitioner seeking to challenge an order, dated 13.07.2010 passed by the first respondent Registrar of Firms, Office of District Registrar, Coimbatore. By the aforesaid order, the first respondent found that the removal of four partners from the business and induction of seven persons was illegal and contrary to Sections 31 and 32 of the Partnership Act. With reference to change of name and place of business, no signatures of partners were obtained in terms of Section 60 of the Partnership Act and with reference to dissolution of partners, it was not made with the consent of partners in terms of Sections 39 and 40 and therefore, the Form submitted in this regard and the entries made were cancelled and the Joint Registrar was directed to act accordingly.
	3.That writ petition is yet to be admitted. During the pendency of the writ petition, the original petitioner died on 4.3.2011 and his wife and the minor daughters were brought on record by a substitution application. In the meanwhile, respondents 3 to 6 jointly filed W.P.No.20816 of 2010, seeking to challenge an order dated 6.1.2010 by which the first respondent company was incorporated by the second respondent and for consequential direction to the second respondent to delete the name of the first respondent from the Register of Companies and pass further orders on the writ petition.
	4.It was the case of the petitioners in the second writ petition that the registration of a Company and its incorporation had to be done in terms of Sections 34(2) and 35 of the Companies Act, 1956. Since the first respondent Company had fraudulently obtained a Certificate of Incorporation of the Company, they had stated that in the absence of any other remedy, they have come forward to file the present writ petition. The Registrar of Companies by his Certificate of Incorporation, dated 6.1.2010 had registered the company by name K.P.Balakrishnan Oil Mills Private Limited in terms of the Companies Act, 1956.
	5.Heard the arguments of Mr.P.V.S.Giridhar, learned counsel leading  Mr.S.Senthil Kumar, learned counsel appearing for the petitioners in W.P.No.15660 of 2010 and Mr.P.H.Arvindh Pandian, learned counsel appearing for petitioners in W.P.No.20816 of 2010.
	6.It is not clear as to how both writ petitions are maintainable. In the first case, the dispute is purely among the partners of the Company. It must be noted that a partnership is a contract between the partners and that the business of partnership is carried on subject to contract between the partners. The Registrars are appointed under Section 37 to exercise powers that are assigned to them. Under Section 59, if the Registrar is satisfied that provisions of Section 58 was complied with, he can record an entry in the Register called Register of Firms and to file the statement. Thereafter, he can record alterations in the firm's name and the principal place of business. Thereafter, he can note the information furnished including the closing and opening of branches. He can note changes in names and address of partners, record changes and dissolution of firm, rectification of mistakes and that he can also grant copies of documents. Therefore, under the Partnership Act, 1932, the Registrar plays a very limited role and he is not empowered to go into the disputes between the partners including any breach of contract constituting the partnership. 

	7.A division bench of this court in C.Dharmalingam Vs. The District Registrar, Office of the District Registrar, Madurai South, Palace Road, Madurai and others reported in 2010 (3) CTC 390 in respect of Tamil Nadu Societies Registration Act, after reviewing all the case laws on the relevant subject had held that the Registrar can look into the provisions of the Act and Rules and prima facie materials to arrive at a conclusion either to believe or not to believe the form submitted to effect changes in the Register. If there are any dispute among the members, the parties will have to move the Civil Court. In doing so, the division bench followed the earlier Full Bench judgment of this Court in C.M.S.Evangelical Suvi David Memorial Higher Secondary School committee, Karisal through its Secretary Sri S.David Stephen Vs. The District Registrar, Cheranmahadevi reported in 2005 (2) CTC 161. Since the petitioners have questioned several issues arising out of the dispute between the partners, this court is not inclined to entertain the first writ petition. Hence W.P.No.15660 of 2010 is liable to be dismissed.
	8.The second writ petition, i.e., W.P.No. 20816 of 2010 is an offshoot of the first writ petition. In respect of the second writ petition, it is claimed that  the Company K.P.Balakrishnan Oil Mills Private Limited represented by its Directors, filed a suit in O.S.No.1148 of 2010 before the I Additional District Munsif Court, Coimbatore against the writ petitioners herein in the name of the Company and also sought for a temporary injunction restraining the writ petitioners from interfering with the company. While the suit is pending, an interim application made in I.A.No.1278 of 2010 was dismissed by the Court. Hence, it is for the petitioners in the writ petition to work out their rights in the main suit. The petitioners can also act as if there is no interim order against them. But, this court do not find that a writ petition will lie for the cancellation of the registration of the company. Ultimately if a civil suit is pending or instituted for any declaratory relief, then the Registrar of Companies is bound to act on the basis of the said decree and that the provisions of the Companies Act do not stand in the way of adhering to the order made by the Civil Court.
	9.In the light of the above, both the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.

						07.06.2011
Index : Yes
Internet : Yes
vvk
To
1.The Registrar of Firms,
   District Registrar Office,
   Coimbatore-18.
2.The Registrar of Companies,
   Tamilnadu Coimbatore
    Stock Exchange Building,
   2nd Floor, 683,Trichy Road,
   Singanallur, Coimbatore-641 005.













						K.CHANDRU, J.

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PRE DELIVERY ORDER IN
W.P.NOs.15660 and
20816 of 2010

07.06.2011