Abdul Kader and Abida Abdul Kader v. Registrar of Firms, Office of the Inspector General of Registration, Thiruvananthapuram; P.M. Pareeth; Shamsudheen V.M.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 3[RD] DAY OF AUGUST 2023 / 12TH SRAVANA, 1945 ``` ``` WP(C) NO. 11039 OF 2022 ``` ## **`PETITIONERS:`** - **`1 ABDUL KADER, AGED 52, S/O. VEERAN HAJI, SOURYAMPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM, THRISSUR-679532.`** - **`2 ABIDA ABDUL KADER, AGED 43,W/O. ABDUL KADER, SOURYAMPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM, THRISSUR-679532.`** ``` BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN MANU VYASAN PETER ABRAHAM BABU KALLIVAYALIL ``` ## **`RESPONDENTS:`** - **`1 REGISTRAR OF FIRMS, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, EX-MAYOR R.BALAKRISHNAN NAIR ROAD, NEAR DISTRICT COURT, VANCHIYOOR, THIRUVANANTHAPURAM, PIN-695035.`** - **`2 P.M.PAREETH, PUTHIYA VEETIL HOUSE, SUBASH NAGAR, MANNUTHI P.O., MADAKKATHARA, THRISSUR-680651.`** - **`3 SHAMSUDHEEN V.M., VAYYATUKAVIL HOUSE, PALLOM P.O., DESAMANGALAM, THRISSUR-679532. R2 & R3 BY ADVS.SAIJO HASSAN SABU GEORGE BENOJ C AUGUSTIN(K/189/2004.) RAFEEK. V.K.(K/134/2003) AATHIRA SUNNY(K/000638/2018) BINCY JOB(K/001080/2017) NEEMA NEERACKAL(K/002823/2022) AMBADI DINESH L.K.(K/002835/2022) SALMAN FARIS(K/002563/2022)`** WP(C) No.11039 of 2022 2 ``` KALLYANI G. MENON(K/166/2022) K.S. SANDEEP(K/1883/2022) ``` ## **`OTHER PRESENT:`** ``` R1 BY SR.GP - JOBY JOSEPH ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.11039 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.11039 of 2022 .................................................................** Dated this the 3[rd] day of August, 2023 ## **JUDGMENT** Petitioner has approached this Court seeking a direction to the 1[st] respondent to consider Ext.P7 and to take a final decision in the matter. 2. 1[st] petitioner is the Managing Partner and 2[nd] petitioner, his wife, is a partner of GIE Plantation, Santhanpara, a partnership firm registered with registration No.50/2014, which was in existence from 11.05.2005 with four partners namely, Dr John Joseph, Joji John, Susy John and Abey Joji. The firm was registered on 04.01.2014 with the 1[st] respondent. Petitioners joined the firm as partners on 06.01.2014. The then existing partners in the firm aforesaid retired from the firm on 20.01.2014 and the address of the firm was also changed and necessary changes were carried out in the register of firms with regard to the joining of new partners, retirement of the existing partners and change of address as is evident from Ext.P1, extract of the register of firms regarding the firm issued on 13.02.2019. In September 2020 the petitioners came to know that respondents Nos.2 and 3 have filed fabricated documents before the 1[st] respondent forging the signature of WP(C) No.11039 of 2022 4 the petitioners which purports to seek change of the structure of the firm to the effect that respondents 2 and 3 have joined the firm as partners on 03.09.2020 and the petitioners have retired from the firm on 15.09.2020 and the said changes were effected in the register of firms as is evident from Ext.P2, extract of the register of firms issued on 30.09.2020. Petitioners submit that the said forgery has been committed by respondents 2 and 3 behind the back of the petitioners with a view to grab the properties of the firm. Petitioners further submit that with regard to the management of the firm there are disputes between the petitioners and the erstwhile partners and several cases in this regard are pending before this Court and the District Court, Ernakulam and also SARFAESI proceedings are pending for recovery of amounts at the instance of the creditors. Petitioners also submit that in the case pending before this Court there is an interim order restraining change of the composition of the firm. On knowing about the forgery, 1[st] petitioner filed Ext.P3 complaint before the 1[st] respondent pointing out the forgery committed by respondents 2 and 3 and calling for cancelling the changes so made in the register on the basis of the forged documents submitted by respondents 2 and 3. The 1[st] respondent by Ext.P4 reply intimated the petitioners that the changes in the register are made on the applications submitted in this regard and if there is any complaint with regard to the WP(C) No.11039 of 2022 5 signatures in those applications, the same has to be scientifically proved and the said authority has no power to suo motu cancel or make any changes in the register and that the dispute was directed to be adjudicated through a court of law. Thereupon the petitioners filed a complaint with regard to the forgery committed by respondents 2 and 3 before the Vanchiyoor Police and Crime No.1525 of 2020 was registered and later on the Crime Branch took over the investigation of the crime. The applications submitted before the 1[st] respondent in the name of the petitioners were sent for comparison of the signatures of the petitioners to the State Forensic Science Laboratory and Ext.P5 report was submitted before the Court intimating that the signatures in the applications submitted before the 1[st] respondent are not that of the petitioners. On the basis of Ext.P5 report, the 2[nd] respondent was arrested and the 3[rd] respondent submitted Ext.P6 affidavit before the Police stating that he has not purchased any share of the partnership firm and he has no right or ownership over the firm or its assets and that he has not submitted any application before the Registrar of Firms for change of ownership and the signatures on the applications so submitted are not of his and he attributed that all the forgeries were committed by the 3[rd] respondent. Thereupon petitioners submitted Ext.P7 request before the 1[st] respondent praying for removing the name WP(C) No.11039 of 2022 6 of respondents 2 and 3 and to retain the name of the petitioners as partners in the register kept by the 1[st] respondent. Case of the petitioners is that no action has been taken on Ext.P7. 3. A statement has been filed by the 1[st] respondent wherein it is stated that the subject matter of the dispute in the present writ petition was also a matter in dispute in W.P(C)No.21958 of 2020 and in Crime No.1525 of 2020 which is now pending before the Judicial First Class Magistrate Court-XI, Thiruvananthapuram. Later on W.P.(C) No.21958 of 2020 which was filed challenging the changes made in the original records of Registrar of Firms was dismissed as withdrawn on 10.02.2022. In the said statement reliance is placed on Section 65 of the Indian Partnership Act, 1932 (hereinafter referred to as “the Act”) which speaks about the amendment of register by order of court and it is provided therein that a court deciding any matter relating to registered firms may direct that the Registrar shall make any amendment in the entry in the register of firms relating to such firm which is consequential upon its decision and the Registrar shall amend the entry accordingly. It is further stated that the Registrar of Firms is bound to amend the register by order of the court. Since the issues alleged in Ext.P7 are under consideration before the Judicial First Class Magistrate Court-XI, Thiruvananthapuram, no orders have been passed on Ext.P7 without WP(C) No.11039 of 2022 7 any further order issued by the competent court. To the stand taken by the 1[st] respondent in the statement, it is the case of the petitioners that the 1[st] respondent has inherent power as provided under Section 64 of the Act for rectification of mistakes in order to bring the entry of register of firms relating to any firm into conformity with the documents and that on an application made by all the parties. 4. A detailed counter affidavit has been filed by the 2[nd] respondent also wherein it is contended that in 2013 petitioners approached Dr.John Joseph, who is the 1[st] Managing Partner of the firm and showed their interest in joining the partnership firm and accordingly the partnership firm was reconstituted on 06.01.2014 inducting the petitioners as partners as per Ext.R1 deed of reconstitution of partnership firm. As per the understanding Ext.R2 deed of retirement was also executed by Dr.John Joseph and other partners. Thereafter the petitioners were not able to comply with the financial commitments of the partnership firm and were not able to manage the activities of the partnership firm and accordingly the petitioners intended to reconstitute the partnership firm. Thereby the petitioners and respondents 2 and 3 entered into an agreement to reconstitute the partnership firm and Ext.R3 deed was entered into on 11.08.2020. Later the petitioners were not interested to continue in the partnership firm since the firm has incurred substantial WP(C) No.11039 of 2022 8 liabilities and various legal issues were pending against the partnership firm and the petitioners owed huge amount to the 2[nd] respondent and thereupon the petitioners decided to exit from the partnership firm and consequently Ext.R4 deed of retirement was executed on 25.08.2020. It is further stated that the 2[nd] respondent is the Managing Director of the firm and the 3[rd] respondent is a partner of the firm. The averment in the writ petition that these documents are fabricated one is absolutely without any basis. It is the case of the petitioners that the erstwhile partners had preferred Ext.R5 complaint before the Registrar of Firms on 14.10.2019 and it would reveal that the petitioners have committed forgery and fabricated documents and claimed themselves as Managing Director and partner of the firm. The 1[st] petitioner is involved in various criminal cases in Abudhabi and Ext.R7 is the list of cases in which the 1[st] petitioner is involved and Exts.R8(1) to R8(3) are the FIRs registered against the 1[st] petitioner in Kerala. On the abovesaid contentions the 2[nd] respondent sought for dismissal of the writ petition. 5. Heard the contentions of both sides. 6. Learned counsel for the petitioners relying on Section 64 of the Act would submit that the Registrar has power at all times to rectify any mistakes in order to bring the entries in the register of firms relating to any firm into conformity with the documents relating to that firm. But a WP(C) No.11039 of 2022 9 reading of Section 64(2) of the Act would make it clear that the said rectification of mistakes in any document or in the record or note made in the register of firms can be made only on an application made by all the parties who have signed in any document relating to the firm. Herein Ext.P7 is an application filed only by the petitioners. Reliance is also placed on the judgment in _**Sidhik v. State of Kerala (2010 (1) KLT 113)**_ to contend for the position that the power to correct mistakes is inherent on the administrative authority and that such power should be exercised where rights of third parties have been affected by the mistaken proceedings without their knowledge and without their being heard resulting in miscarriage of justice. Here is a case where the petitioners contend that forgery has been committed by respondents 2 and 3 and submitted Ext.P2. Whereas respondents 2 and 3 would contend that there is no instance of any forgery committed by them and that if at all such an allegation is raised, same can be adjudicated only by a competent court after adducing evidence of both sides and not in a writ proceedings. It is worthwhile to consider Section 65 of the Indian Partnership Act which specifically provides that a court deciding any matter relating to a registered firm may direct that the Registrar shall make any amendment in the entry in the register of firms relating to such firm which is consequential upon its WP(C) No.11039 of 2022 10 decision and the Registrar shall amend the entry accordingly. So the entry made in the register by the 1[st] respondent could be modified or amended accordingly by an order passed by the court deciding any matter relating to registered firms. Since the issue raised in this case involved disputed questions of facts, the same can only be adjudicated by a competent civil court and not in a writ proceedings. Therefore, no direction can be issued to the 1[st] respondent for consideration of Ext.P7 which could be made only in accordance with the decision of a competent court, competent to decide such disputed questions of fact. Leaving open the right of the petitioners to adjudicate their grievance before a court competent to adjudicate such disputed questions of fact the above writ petition is dismissed. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.11039 of 2022 11 ## **`APPENDIX OF WP(C) 11039/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE EXTRACT OF REGISTER OF FIRMS REGARDING THE FIRM GIE PLANTATIONS ISSUED ON 13.2.2019. Exhibit P2TRUE COPY OF THE EXTRACT OF REGISTER OF FIRMS REGARDING THE FIRM GIE PLANTATIONS ISSUED ON 30.9.2020. Exhibit P3TRUE COPY OF THE COMPLAINT DATED 1.10.2020 SUBMITTED BY PETITIONER NO.1 BEFORE RESPONDENT NO.1. Exhibit P4TRUE COPY OF THE REPLY DATED 9.11.2020 ISSUED BY RESPONDENT NO.1. Exhibit P5TRUE COPY OF THE REPORT DATED 8.10.2021 SUBMITTED BY THE STATE FORENSIC SCIENCE LABORATORY. Exhibit P6TRUE COPY OF THE AFFIDAVIT OF RESPONDENT NO.3, DATED 9.11.2020. Exhibit P7TRUE COPY OF THE REPRESENTATION DATED 28.2.2022 SENT TO RESPONDENT NO.1 ON 3.3.2022 ALONG WITH THE POSTAL RECEIPT. Exhibit P8TRUE COPY OF THE ACKNOWLEDGMENT CARD, DATED 4.3.2022. ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1The true copy of the Deed of Reconstitution ofpartnership firm dated 6.1.2014 Exhibit R2The true copy of the Deed of Retirement dated 20.01.2014 Exhibit R3The true copy of the Deed of Reconstitution dated 11.08.2020 ``` WP(C) No.11039 of 2022 12 |`Exhibit R4`|`The true copy of the Deed of Retirement`| |---|---| ||`dated 25.08.2020`| |`Exhibit R5`|`The true copy of the Complaint dated`| ||`14.10.2019 preferred before the`| ||`Registrar of Firms`| |`Exhibit R6`|`The true copy of the Partnership Deed`| ||`dated 10.11.2014 entered between the`| ||`1st petitioner and the 2nd petitioner`| |`Exhibit R7`|`True copy of the list of cases`| ||`convicted against the 1st petitioner in`| ||`Abu Dhabi along with the translation`| |`Exhibit R8 (1)`|`The true copy of the FIR No. 360 of`| ||`2019 registered against the 1st`| ||`petitioner.`| |`Exhibit R8(2)`|`The true copy of the FIR No. 587 of`| ||`2020 registered against the 1st`| ||`petitioner`| |`Exhibit R8(3)`|`The true copy of the FIR No. 823 of`| ||`2020 registered against the 1st`| ||`petitioner`| |`Exhibit R9`|`The true copy of the impleading`| ||`petition dated 18.11.2020`|