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1994 Supreme(Bom) 183
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.D. Mane, J.
Ramrao s/o. Vishram Tanpure.... Appellant.
Versus
Bholaram Mohanlal Firm, Jalna.... Respondent.
First Appeal No. 18 of 1983, decided on 20-4-1994.
Advocates appeared :
S.K. Sheike, for the appellant.
B.P. Agrawal and N.S. Alijar (Jain), for the respondent.
Headnote:Sections 2 (c) and 10-See Partnership Act 1932, Sections 40, 43 and 69.
Sections 3, 59 and 61.
See Partnership Act, 1932, Sections 40, 43 and 69.
PARTNERSHIP ACT, 1932
Sections 40, 43 and 69-Contract Act, 1872. Sections 2 (e) and 10 - Evidence Act, 1872, Sections 3, 59 and 61-Firm - Dissolution of-Its effect.
Held- To determine the question whether there bas been a dissolution of the plaintiffs partnership firm as the plaintiff firm as on the date of the suit or there has been re-constitution of the partnership firm as the plaintiff firm, it is necessary to have the aforesaid material evidence on record and unless the parties are given opportunity to adduce such evidence it will not be possible to decide the question which bas been argued by the learned Counsel for the appellant in this first appeal. In deed the defendant tried to raise the objection of such a nature in his pleadings by the Court below seem s to have overlooked the aspect in framing the relevant issue in the suit. As a matter of fact, the learned Trial Judge has also mis-read the pleadings as be has taken it for granted that there was dissolution of the plaintiff firm which filed the suit against the defendant. It seems to me that no attention of the parties was invited to this question of law and therefore, this is also one of the ground, for me to remand the suit for re-trial in accordance with law by giving opportunity to the parties to amend their pleadings if they so desire.
Sections 40, 43 and 69-Indian Contract Act, 1872, Sections 2 (e) and 10-Firm-Dissolution and reconstitution of-Distinction between-Former puts an end to, but later keeps it subsisting though in another form,
2. The plaintiff is a registered firm carrying on the business of commission agent in the name and style of Bholaram Mohanlal, at Kadrabad, Bombay. The defendant was its customer who used to sell the agriculture produce through the plaintiff firm. There is an account in the name of the defendant with the plaintiff firm. For the year Samvat 2030-31, a sum of Rs. 10,907.75 ps. was outstanding in the name of the defendant. Coupled with the said amount, an amount of Rs. 19,000/- was paid in cash in the name of the Appellant on 27-6-1974 and on settlement of the account, a balance of Rs. 20,271.60 ps. was found due and payable by the defendant to the plaintiff firm. The plaintiff firm therefore filed the suit for recovery of the said amount together with interest at the rate of Rs. 1.25 per cent per annum.
3. That claim of the plaintiff was denied by the defendant. It was denied that Rs. 10,000 were advanced in cash on 27-6-1974. It was denied at the foot of the account Rs. 21,007.75 ps. was outstanding to his credit. It was stated that the defendant used to deposit the amount earned out of the sale of agriculture produce to the plaintiff firm. On 25-11-1974 the defendant deposited Rs. 21,000/- through his son but that amount has not been credited against his name. That amount stands unaccounted for with the plaintiff firm. No statement of accounts was supplied to the defendant. The defendant was handicapped to find out the receipts as they were destroyed. According to the defendant, on taking proper accounts of the firm nothing was outstanding against him.
4. It may be stated that during the pendency of the suit, some change has taken place in the partnership firm. One of the partners Radhakishan ceased to be the partner of the firm. The plaintiff firm was registered with the Registrar of Firms at serial No. 1348 in 1971 and on account of Radhakishan ceasing to be the partner of the said firm, the firm came to be re-registered at serial No. 173 on 28-4-1981. Earlier there were 5 partners, whereas, presently there are four partners.
5. Mr. Shelke, learned Counsel appearing for the appellant, invites my attention to the written statement wherein it has been stated that the suit was not maintainable in view of the change in the partnership firm. Mr. Shelke, learned Counsel, therefore, argued that the right to sue to recover the amount from the defendant does not survive in case of the present plaintiff firm. It has been poined out that the plaintiff firm has also not amended the plaint to show that as a matter of fact, there was no dissolution of the firm but re-constitution of the firm. It is, therefore, further argued that one has to take it for granted that there was dissolution of the firm and therefore, whatever amount that was due to the original firm, unless there is contract to the contrary proved in the case, the plaintiff firm has no right to recover the said dues.
6. The arguments advanced by Mr. Shelke, learned Counsel for the appellant are attractive but are difficult to accept unless there is evidence on record to that effect. The dissolution and re-constitution are two different legal concepts. Dissolution puts an end to the partnership but re-constitution keeps it subsisting though in another firm. In other words, a dissolution is followed by some of the erstwhile partners taking over the assets and liabilities of the partnership firm. This is not a re-constiution of the original partnership firm. The partnership firm after dissolution is a new partnership and not re-constitution of the old partnership but re-constiution of the firm effects re-strutcuring of the firm by addition or retirement of the partner
