JUDGMENT
Manmohan Sarin, J.
1. The petitioner has filed the present
writ petition seeking quashing of the order dated
3.1.1995, recording the retirement of the petitioner
w.e.f. 1.4.1992 or otherwise direct the Registrar of
firms of respondent No. 1 to rectify Under Section 64 of
the Indian Partnership Act (hereinafter referred to as
‘the Act’) the alleged mistake as done by him and
further to penalise the other partners of the firm for
their act of forgery and furnishing false particulars,
under Section 70 of the Act.
2. The factual matrix of the case may be
briefly noted to the extent it is relevant. The
petitioner claims that he is a partner in the
partnership firm in the name of M/s. Kapoor Sons and
Co., along with respondent No. 2 Mr. O.P. Kapoor and other
partners.
The writ petition has its origin and genesis
in family acrimony. The petitioner is the son of
respondent No. 2 and other partners are his brother.
Petitioner claims that he is also a partner in other
family concerns and firms, such as Continental Films
and M/s. Rupas International, which own various other
assets. Petitioner claims to have been looking after
the business of partnership firm in Columbia. Writ
petition has several averments with regard to the
petitioner looking after the family business and
interest in Columbia. However, the same are not
relevant to the issue in the present writ petition.
3. The petitioner’s grievance in the writ
petition is that respondent No. 2 in collusion with
other partners, forged a notice of change in
constitution of the registered firm by filing form V,
appearing at page 21 of the paper book. The said form
No. V under Section 63(1) of the Act is to the effect that the
petitioner has retired from the partnership w.e.f.
31.3.1992. Petitioner denies his signature as also
the execution of the dissolution deed, which is stated
to have been filed with the Registrar of Firms. In the
writ petition, the petitioner’s claim is that the
Registrar of Firms has acted on this forged document
and has recorded the changes under Section 63 of the
Indian Partnership Act. The petitioner therefore seeks
the quashing of the changes as recorded by the
Registrar and seeks quashing of entries in Form-A as
recorded by the Registrar of Firms.
4. Learned counsel for the petitioner
submits that the Registrar is obliged to carry out the
rectification of mistakes under Section 64 of the Act
and such a direction can be given by the Court under
Section 65 of the Act. Learned counsel for the
petitioner submits that the Registrar has not taken any
precaution or acted to verify the signatures in Form-V
and compare it with the original partnership deed. He
submits that there is a CFSL report to the effect that
the signatures of the petitioner have been forged.
5. Respondents have filed the counter
affidavit. It has been brought out in the counter
affidavit that there are number of civil and criminal
proceedings, which have been initiated by the
petitioner against respondent No. 2 and other family
members. Mr. Harish Malhotra, counsel for respondent
No. 2 submits that petitioner had even filed a civil
suit, wherein he had sought a declaration that the
petitioner had not retired and continued to be a
partner of the firm in question. During the course of
the Court proceedings all the civil disputes relating
to the partnership firm in question and other
partnership firms and businesses were referred to the
arbitration of Hon’ble Mr. Justice P.K. Bahri, a
retired judge of this court. It is submitted that the
proceedings before the Arbitrator are going on and
evidence is being led. In the proceedings before the
Arbitrator, the petitioner has raised the same
contention that he did not resign from the partnership
firm and his signatures have been forged on the form
and Dissolution Deed. Evidence has been partly led and
arguments are to go on. The very issue i.e. whether
the petitioner resigned from the partnership or not is
the subject matter of adjudication before the
arbitrator. Respondent No. 2 in the counter affidavit
claims that the Dissolution Deed was duly singed by the
petitioner and in fact, the petitioner also wrote
letter dated 15.2.1992, wherein he expressed the desire
not to continue as a partner in the firm and requested
for its dissolution. Further, by another letter dated
24.4.1992, the petitioner had sent the Dissolution Deed
dated 21.3.1992 and other documents and Deeds. The
respondent No. 2 claims that the petitioner has admitted
before the Arbitrator his signatures on these letter
but alleges them to be manipulated, as blank papers
were provided by the petitioner himself to respondent
No. 2.
6. The position that emerges, therefore, is
that the petitioner claims that respondent No. 2 along
with other family members have forged his signatures on
the Form V as well as the Dissolution Deed and filed
the same before the Registrar. The petitioner also
relies on police investigation as well as CFSL report
to claim that the signatures are forged while
respondent No. 2 claims that the petitioner has admitted
his signatures on the letters dated 15.2.1992 and
24.4.1992, by which he had also expressed is desire to
retire from the partnership firm and had subsequently
forwarded the Dissolution Deed. It is thus clear that
these are disputed questions of fact.
7. The petitioner in support of his
contention submitted that the Registrar should not have
acted mechanically and accepted Form V in respect of
the retirement of the petitioner along with Dissolution
Deed and passed the entry dated 3.1.1995, recording the
petitioner’s retirement. He relies on Durga Prosad
Sarawagi and Ors. v. Registrar of Firms, West Bengal
and Anr. to urge that the writ
petition as filed was maintainable and the Registrar
could be directed to rectify the record by issuance of
a writ.
8. Learned counsel for respondent No. 2, on
the other hand, has relied on Dr. V.S. Bahal v.
S.L. Kapur and Co. and Kesrimal and
Anr. v. Dalichand and Ors. . The aforesaid authorities have been cited by
learned counsel for respondents to support his
contention that the Registrar on receipt of a notice in
terms of Section 63 of the Act is simply required to
make a note of the change notified and after making an
entry, file the same on record.
In Kesrimal and Anr. v. Dalichand and
Ors. (supra) it was held that a change in the
constitution of a registered firm owing to the coming
in or going out a partner or by death of a partner
does not occasion the necessity of any fresh
registration but all that is required is that the
change thus brought about should be notified to the
Registrar and it is then for the latter to make a note
of it in the relevant register. The language used in
Section 63 of the Act, it was permissive as it uses the
word ‘may’ and not ‘shall’. Learned counsel,
therefore, urged that the Registrar has duly carried
out its function on receipt of the form V duly signed
by the partners, by nothing it and making a relevant
entry of the same in the record. Learned counsel for
respondent No. 1 Ms. Ansuya Salwan urged that the
Registrar having duly received the notice, could not be
faulted with for making an entry in accordance with the
Rules. In case, ultimately either in arbitration or by
adjudication by the Court of law, the said intimation
or dissolution deed are found to be not genuine,
rectification in terms of Section 64 of the Act would
be carried out. However, till the matter was subjudice
before the arbitrator or under investigation, and
pending in Courts, the Registrar was not obliged to
make any rectification.
9. Learned counsel for the petitioner
placed considerable emphasis on Durga Prosad Sarwagi
and Ors. v. Registrar of Firms, West Bengal and
Anr. (supra) to urge that the writ court would
direct the Registrar to correct the entry and a writ
petition would be maintainable. In the cited case, the
learned single Judge had dismissed the writ petition
filed under Article 226 of the Constitution of India
holding that whether the firm was dissolved on
11.4.1954 or not, appears to be a disputed question of
fact and that it was impossible for him to come to a
conclusion without more, as to what the true version
was, namely, whether the firm was dissolved on
11.4.1954 or was still continuing. The Judge dismissed
the writ petition holding that he was disinclined to
interfere with the entry made by the Registrar. The
Division Bench allowed the appeal.
10. In my view, the cited case is clearly
distinguishable on facts and cannot advance the
petitioner’s case in the present writ petition. In the
cited case, the Division Bench found that the notice of
dissolution had been given on 30.8.1961 by one Manik
Chand Sarvagi to the effect that the firm stood
dissolved with effect from 11.4.1954. The Court found
that as per the records of the Registrar of Firms
itself, the said Manik Chand had retired on 14.8.1958.
Accordingly, a notice could not have been given on
30.8.1961 by a person, who had retired on 14.8.1958.
Further, if the partnership stood dissolved on
11.4.1954, then Manik Chand Sarvagi could not have
continued as a partner as per the Registrar’s own
record till 14.3.1958. The Division Bench, therefore,
found that there were inherent contradictions in the
notice as given and the record maintained by the
Registrar of Firms, which were self evident. In these
circumstances, the Court held that the Registrar of
Firms could not have acted illegally and in violation
of Section 63(1) by making an entry of dissolution in
pursuance to the notice received on 30.8.1961.
Besides, the solicitors of the opposite side had
protested and made a request for rectification to the
Registrar, which he refused to take notice of. This
was a case were a notice of dissolution of firm was
being sent after the alleged event by a person who
stood retired as per the record of the Registrar of
firms. The aforesaid case of the Division Bench is,
therefore, clearly distinguishable on facts.
12. In the instant case before us, there is
no such apparent illegality or contradiction. The
present case is simply one where the petitioner claims
the notice in Form V to have been a forged one and the
dissolution deed not executed. The other partners
claim that it was duly executed. Further, the
petitioner in the correspondence and letters had
expressed is desire to retire and forwarded the
Dissolution Deed. Petitioner, it is claimed, has
admitted his signature before the Arbitrator in the
letter. This controversy, as noted above, was earlier
the subject matter of a suit for declaration resulting
finally in reference of the disputes to the arbitrator,
a retired Judge of this Court, Hon’ble Mr. Justice
P.K. Bahri, before whom the issue of petitioner’s
retirement from the said partnership is also pending.
In these circumstances, the petition raised highly
disputed questions of fact, which are under
adjudication and the petitioner is not entitled to the
issuance of a writ, as prayed for.
13. The writ petition is dismissed.