IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938
WP(C).No. 5783 of 2014 (W)
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PETITIONER(S):
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LAXMI VASANTH
W/O.K. SREEKANTH PADMANABHAN, AGED 47 YEARS,
RESIDING AT VASANTH VIHAR, KOCHUPILAMOODU, KOLLAM.
BY ADVS.SRI.R.S.KALKURA
SMT.R.BINDU
SRI.M.S.KALESH
SRI.HARISH GOPINATH
SMT.M.K.LEELAKUMARI
SRI.JOHNSON JOSE PANJIKKARAN
SRI.SANIL KUNJACHAN
SRI.K.KURIAN KOSHY
RESPONDENT(S):
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1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, REVENUE, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001
2. THE DISTRICT COLLECTOR
CIVIL STATION, KOLLAM - 691 013.
3. REVENUE RECOVERY THAHSILDAR, KOLLAM,
NEAR ASRAMAM, KOLLAM -691 002.
4. THE TAHSILDAR
KOLLAM DISTRICT, CIVIL STATION, KOLLAM - 691 013.
5. THE VILLAGE OFFICER
MUNDAKKAL VILLAGE OFFICE, MUNDAKKAL, KOLLAM - 691010
R1-5 BY ADV. GOVERNMENT PLEADER SRI. V.K SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2016,
ALONG WITH WP(C) NO.32715 OF 2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(C).No. 5783 of 2014 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT-P1-TRUE COPY OF THE GIFT DEED NO. 2906 DATED 06/08/1982.
EXHIBIT-P2-TRUE COPY OF THE GIFT DEED NO. 2907 DATED 06/08/1982
EXHIBIT-P3-TRUE COPY OFTHE SETTLEMENT DEED NO. 6389 DATED 14/11/1973
EXHIBIT-P4-TRUE COPY OF THE SALE DEED NO. 1858 OF 1988 DATED 08/06/1988
EXHIBIT-P5-TRUE COPY OF THE JUDGMENT IN O.S 35 OF 1999 ON THE FILE OF THE
MUNSIFF COURT, KOLLAM DATED 29/06/2004.
EXHIBIT-P6-TRUE COPY OF THE JUDGMENT IN A.S 153 OF 2004 DATED 10/09/2009 ON
THE FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE, KOLLAM.
EXHIBIT-P7-TRUE COPY OF THE COMMUNICATION DATED 14/08/2012 ISSUED BY THE
3RD RESPONDENT TO THE PETITIONER.
EXHIBIT-P8-TRUE COPY OF THE REPRESENTATION DATED 15/01/2014 SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS:
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ANNEXURE R3(a): A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.19555/2009
DATED 19.03.2012
ANNEXURE R3(b): A TRUE COPY OF THE ORDER DATED 05.11.2012 PASSED BY
THE DISTRICT COLLECTOR
ANNEXURE R3(c): A TRUE COPY OF THE JUDGMENT DATED 29.01.2014 IN W.A
481/2013
//TRUE COPY//
PA TO JUDGE
sab
A.M. SHAFFIQUE, J.
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W.P. (C) Nos. 5783 & 32715 of 2014
=======================
Dated this, the 20th day of September, 2016
JUDGMENT
These writ petitions are filed challenging the SARFAESI
proceedings being taken against the petitioner for recovery of sales
tax dues from a partnership firm M/s.Malabar Cashewnuts and Allied
Products. According to the petitioner, she was a minor who was
admitted to the benefits of the partnership firm for a certain period
and thereafter she has been excluded from the partnership.
However, her individual properties are being attached and they are
proceeded against for recovery of sales tax dues of the firm. It is
contended that she was not a partner of the firm in order to become
jointly and severally liable for the amount due to the firm.
2. Another person Sri.Rajmohan Pillai had approached this
Court by filing WP(C) No.9021/2015 challenging the very same
proceedings initiated against him on the basis that he was a partner
at the time when the sales tax amount had become due and after
considering the rival contentions, this Court, by judgment dated
29/6/2016, have quashed the proceedings against the petitioner. In
W.P(C) Nos.5783 & 32715/14
-:2:-
that case also, steps were taken on the basis that petitioner was
admitted to the benefits of the partnership and there was nothing
to show that he retired from the firm. It was found from the
materials placed on record that the said petitioner ceased to be a
person admitted to the benefits of the partnership firm w.e.f.
1/1/1976. Paras 10 to 12 of the judgment are relevant, which read
as under:-
“10. The above statutory provision clearly indicates
that the minor is not a partner of the firm. Section
25 indicates liability of the firm for acts of firm. This
provision will not apply since the minor does not
become a partner of the firm. The only question is
whether the petitioner, who was a minor, had
issued notice in terms of 30(5) of the Act. Here the
materials produced on record clearly shows that he
had ceased to be a person admitted to benefits of
partnership with effect from 01/01/1976. In such an
event, the question of Sections 30(5) or 30(7) does
not arise at all. Section 30(7) applies only when an
option is exercised on becoming a partner, in terms
of Section 30(5). Sections 30(5) and (7) reads as
under:
30(5): At any time within six months of his attaining
majority, or of his obtaining knowledge that he had
W.P(C) Nos.5783 & 32715/14
-:3:-
been admitted to the benefits of partnership,
whichever date is later, such person may give
public notice that he has elected to become or that
he has elected not to become a partner in the firm,
and such notice shall determine his position as
regards the firm;
Provided that, if he fails to give such notice,
he shall become a partner in the firm on the expiry
of the said six months.”
“30(7): where such person becomes a partner,-
(a) his rights and liabilities as a minor
continue up to the date on which he becomes a
partner, but he also becomes personally liable to
third parties for all acts of the firm done since he
was admitted to the benefits of partnership, and
(b) his share in the property and profits of
the firm shall be the share to which he was entitled
as a minor.
An eventuality in terms of section 30(5) has not
arisen, since the petitioner was already removed
from the benefits of the partnership with effect
from 01/01/1976.
11. Section 35 deals with liability of estate of a
deceased partner. That is a provision between the
partners and has no bearing to the facts of this
case. Section 35 reads as under:
“35. Liability of estate of deceased
partner.- Where under a contract between the
W.P(C) Nos.5783 & 32715/14
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partners the firm is not dissolved by the death of a
partner, the estate of a deceased partner is not
liable for any act of the firm done after his death.”
12. Unless it is found on evidence, that the
petitioner had become a partner of the firm
subsequent to 01/01/1976, there cannot be any
liability mulcted on the petitioner, as a partner. Yet
another eventuality is whether the petitioner had
succeeded to the estate of any deceased partner,
who is jointly and severally liable to pay the
amount. In such an event, there would not be any
personal liability, whereas the liability will only be
to the extent of properties succeeded from the
deceased partner. Such a situation is not
mentioned in Ext.P5 order.
Hence the writ petition is allowed, the
demand made against the petitioner as a partner of
the firm in terms of Ext.P5 order is set aside.
Consequently, Ext.P7 is quashed, however, without
prejudice to the right of the revenue authorities to
recover the amount due, by any other process.
3. In the case on hand also, Smt.Laxmi Vasanth contends
that she was a minor aged 9 years at the time she was inducted
to the partnership and had retired the very next year.
4. WP(C) No.5783/2014 has been filed by the very same
W.P(C) Nos.5783 & 32715/14
-:5:-
petitioner seeking the following relief:-
“(a) issue a writ of mandamus or any other
appropriate writs, directions or orders directing the
respondents 2 to 5 to accept the tax pertaining to
the property belonging to the petitioner comprised
in 37 cents of property equivalent to 14 ares 94
square meters comprised in Survey No.244 of
Eravipuram Village (Resurvey No.145/19) also
shown as Block No.145 and to strike out all entries
or obliterate all proceedings regarding attachment
in respect of sales tax arrears already entered in
the revenue records forthwith or within a time limit
to be prescribed by this Honourable Court.”
The respondents refused to accept tax on the ground that the
property is liable to be proceeded against for the sales tax dues
which was subject matter in WP(C) No.32715/14.
5. Having regard to the fact that the petitioner stands in
the very same position of Sri.Rajmohan Pillai, whose case has
already been decided as per judgment in Rajmohan Pillai v.
District Collector (2016 (3) KLT 223), I am of the view that the
petitioner is also entitled for the very same relief and accordingly
it is declared that the petitioner is not liable for the debts of the
W.P(C) Nos.5783 & 32715/14
-:6:-
firm on the ground that she was admitted to the benefits of the
partnership firm.
Accordingly, these writ petitions are allowed.
(i) Exts.P11 and P13 in WP(C) No.32715/2014 are set
aside.
(ii) The revenue authorities are directed to effect mutation
of the property of the petitioner as demanded in WP(C)
No.5783/14.
Sd/-
A.M. SHAFFIQUE, JUDGE
Rp22/09/2016
//True Copy//
P.S to Judge
