08/10/15
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
In this complaint case it has been stated by the Complainant that the Complainant and the OP Nos.5 and 6 are the partners of a registered firm under the name and style “M/s Sicon India” having its office at 12, Dasurathi Dey Lane, Shibpur, Howrah. For the purpose of carrying on government contract business, an O.D. A/c No.211 (now O.D. A/c No.1129644342) was opened in the name of the said partnership firm with the Central Bank of India, Shibpur Branch, the OP No.3 and the said account was being operated regularly. A Civil Suit bearing no.65 of 2003 in the nature of declaratory suit was filed by the original Complainant in the 2nd Court of Ld. Civil Judge (Junior Division), Howrah, but the prayer for ad-interim injunction was not granted and, as such, a Misc. Appeal was preferred before the Ld. Additional District Judge, 3rd Court, Howrah. By an order dated 27/08/03 the Misc. Appeal was allowed and the temporary injunction was granted. Against the said order a Revisional Application bearing no.C.O.1921 of 2003 was filed before the Hon'ble High Court, Calcutta wherein an order dated 17/09/03 was passed directing, inter alia, that the partnership firm was carrying on business and the profit and loss of such business shall accrue to the partners and that a new bank account shall be opened which will be operated jointly by the mother and son. The original Complainant vide letter dated 13/12/02 requested the OP No.3 Bank not to allow withdrawal of any sum from the a/c no.211 of the said partnership firm without the signature of the Complainant. The said letter was duly received by OP No.3 on 16/12/02. But the OP No.3 allowed OP Nos.5 and 6 to withdraw the sum of Rs.24,03,266/- during the period from 26/11/06 to 28/08/08 in spite of the Complainant’s written instruction for not allowing any withdrawal by OP Nos.5 and 6 without her written consent and signature. For the said reason, the complaint has been filed praying for refund of the sum of Rs.24,03,266/- with interest, compensation of Rs.5 lakh and cost of Rs.5000/-.
The OP No.3 has filed W.V. contending, inter alia, that the personal dispute between mother and son cannot be the subject matter of the present complaint. There is no cause of action for filing this complaint and the present complaint is not bonafide and it should be dismissed.
OP No.5 has filed W.V. contending, inter alia, that the Complainant has no cause of action for filing the suit and suit is not maintainable in law and facts.
The Learned Counsel for the Complainant has submitted that the Complainant requested the OP No.3 Bank not to allow withdrawal of money from the O.D. A/c No.211 in the name of the partnership firm by OP Nos.5 and 6 without the written consent of the Complainant, but in spite of such written instruction the OP No.3 has allowed the withdrawal of the sum of Rs.24,03,266/-. It is contended that the Bank did not supply the statement of accounts. It is contended that in view of the subsequent instruction, the Bank ought not to have allowed such withdrawal by other partner of the firm. In this connection the Learned Counsel for the Complainant has referred to the decision reported in AIR 2008 Calcutta 103 [Pabitra Construction & Co. vs. UCO Bank & Ors.]. It is submitted that the partnership deed is registered one and provision containing section 69 of the Partnership Act is not attracted.
The Learned Counsel for OP No.5 has submitted that the present Complainant has no locus standi to file this complaint being the daughter of the original Complainant. It is submitted that the substituted Complainant is not a partner. It is contended that section 69 provides that no suit shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any other person unless the firm is registered one and the person suing has been shown in the register of firms as a partner of the firm. It is contended that the mother filed the suit and thereafter the present Complainant being a daughter has been substituted and there is no paper to show that the partnership firm has been registered.
The Learned Counsel for the OP No.3 has submitted that there was no deficiency in service on the part of the Bank. It is contended that in a/c no.211 there was direction as “either or survivor” which is still continuing and the amount was disbursed to the existing partner. It is submitted that the suit was instituted after the expiry of the period of limitation. It is submitted that as per previous direction of the Hon'ble High Court, Calcutta in C.O. 1921 of 2003 a new bank account would be opened which would be operated jointly by the mother and the son, but such new account has not been opened and, as such, the old instruction as to either or survivor was continuing. It is further submitted that there was direction in the said order of the Hon'ble High Court, Calcutta that no outsider shall be allowed to take any part in the business of the partnership. The Learned Counsel has referred to the decisions reported in 2012 (3) CPR 321 (NC) [Professor Baleshwar Singh (Deceased) Through Legal Representatives & Ors. vs. Dr. Manoj Sharma C/o M/s Golden Hospital & Ors.]; 2013 (3) CPR 465 (NC) [M/s Nav Bharat Press vs. M/s Sahara Prime City Ltd.].
We have heard the submission made by both sides and perused the papers on record. As per provision contained in section 69 of the Indian Partnership Act no suit shall be instituted by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be a partner in the firm unless the firm is registered one and the person suing is or has been shown in the register of firms as a partner in the firm. No document has been filed by the Complainant showing that the partnership firm has been registered and the Complainant’s name was shown in the register of firms as a partner. The original Complainant expired and thereafter the present Complainant Smt. Jaya Sinha being the daughter has been substituted. No document has been filed showing the name of the present Complainant as a partner in the said firm. Moreover, the Hon'ble National Commission in the case of M/s Nav Bharat Press vs. M/s Sahara Prime City Ltd. (supra) held that a partnership firm cannot be said to be a consumer.
The Hon'ble High Court, Calcutta in C.O. No.1921 of 2003 was pleased to direct that a new bank account shall be opened which would be operated jointly by the mother and the son. Evidently, no such new account was opened and, as such, the old instruction either or survivor was continuing and the Bank acted accordingly. The Complainant, therefore, is not entitled to get any relief.
The complaint is dismissed.
