Judgement

Appeal from a judgment and decree of the High Court (Septem ber 8, 1914) varying a decree of Macleod J. (March 28, 1914).

The suit was instituted in the High Court by the Nawab Kamal Khan (now represented by the appellants) for a decree that a partnership between himself and the respondents, constituted by an agreement dated March 11, 1908, be dissolved, and for accounts.

The facts appear from the judgment of their Lordships.

Macleod J. found that the partnership business could only be carried on at a loss ; he decreed a dissolution from the date of the institution of the suit and made certain declarations as to the effect of the agreement as to the respective rights upon taking the accounts.

The present respondents appealed and the appellants cross-appealed.

Sir Basil Scott C. J. and Davar J. varied the decree. They held that the plaintiff was not entitled to sue for a dissolution of the partnership at the date of the institution of the suit, nor until the completion of the construction of the works, since the partnership agreement provided that the partnership should continue until that event. The works, however, being completed at the date of the decree, the partnership accounts were ordered; the decree of Macleod J. as to the respective rights of the parties was also varied.

1917. Nov. 13, 15. (The arguments as to the right to a dissolution are alone reported.) Upjohn, K.C., and Sir William Garth, for the appellants. It was proved that the business could not be carried on at a profit and the trial judge had a discretion under s. 254, sub-s. 6, of the Indian Contract Act, 1872, to order a dissolution. That discretion was not taken away by the agreement of the parties Lindley on Partnership, 8th ed., p. 658. In Cowasjee Nanabhoy v. Lallbhoy Vullubhoy (( 1876) L. R, 3 I. A. 200.) the Board held merely that the partners might by their agreement renounce the right to a dissolution. There was nothing in the conduct of the Nawab which disentitled him to the equitable assistance of the Court and the discretion was properly exercised.

P. O. Lawrence, K.C., De Gruyther, K.C., and E. B. Raikes, for the respondents. The Court had not a discretionary power under s. 254, sub-s. (6) to dissolve the partnership since the evidence did not show that the business could not be carried on at a profit. In any case, having regard to the circumstances in which the partnership was entered into, it would be inequitable to the respondents to decree a dissolution before the completion of the works.

Upjohn, K.C., in reply.

Dec. 13. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS. This is an appeal from a decree of the High Court at Bombay in its appellate jurisdiction, dated September 8, 1914, varying a decree of that Court in its original jurisdiction passed on March 28, 1914. The suit is for a dissolution of partnership. The original plaintiff was Nawab Kamal Khan, but he has died in the course of the suit and the present appellants are his representatives. The defendants, his partners, are the respondents in this appeal. The partnership was constituted on March 11, 1908, and its terms are contained in an instrument of that date, To appreciate its purpose and legal effect it will be convenient to describe briefly the events that led up to its execution. The defen dants, a firm of contractors, had undertaken the construction of the New Alexandra Dock in the island of Bombay, and they required for the work a large supply of granite and other stone. They accordingly made two contracts in 1906 for this supply, and in both of them the Nawab was either directly or indirectly interested.

For reasons which need not be discussed, the supply of granite and stone under these contracts was so unsatisfactory that the defendants manager complained, and declared that he would be compelled to look elsewhere if he could not get delivery according to contract.

In the end an arrangement was made for cancellation of the two contracts and