1988 Supreme(Cal) 194

High Court Of Calcutta
R. N. Pyne, Pratibha Bonnerjea
TILOKRAM GHOSH - Appellant
Versus
GITA RANI SADHUKHAN - Respondent
Suit 640  Of  1977
Decided On : 05/11/1988

A Suit for dissolution of Partnership and account cannot be treated as a Suit for land even if its Assets consist of immovable properties.

Headnote:

PARTNERSHIP - DISSOLUTION - JURISDICTION - SUIT FOR DISSOLUTION OF PARTNERSHIP - WHETHER A SUIT FOR LAND - PARTNERSHIP ACT, 1932, SS. 19(2)(E), 37, 43, 44(E), 48, 69(1), 69(3).

Fact of the Case:

In 1953, a partnership deed was executed between the defendant No. 5 Monoranjan Banerjee, the defendant No. 6 Gopika Ranjan Banerjee, the defendant No. 7 Sachidananda Banerjee as well as one Harihar Mal and one Sibram Ghosh, since deceased and the appellant No. 1. The business carried on by the firm was for exhibiting cinematographic films under the name and style of "surasree Cinema". The Cinema House, one of the assets of the firm, was constructed on a plot of land situated in the district of Howrah. The said plot of land was purchased by the aforesaid six partners and was treated as one of the assets of the said firm. It was an unregistered Partnership and the partners had shares therein as set out in the said Deed. Subsequently Harihar Mal sold his share and the shares of the partners in the firm increased as set out in paragraph 7 of the plaint. This Deed of partnership contained an Arbitration Clause for resolving the disputes arising out of this partnership amongst the parties inter se by arbitration.

Finding of the Court:

The Court held that the consent decree, dated 22.9.77 is null and void and is not binding on the appellants. The Firm Surasree Cinema stands dissolved from date. Mr. N. D. Roy, Bar-at-Law is directed to act as the Receiver Jointly with the continuing Receivers Mr. Sarkar to run Surasree Cinema jointly for the purpose of beneficial winding up of the Partnership Firm. The Joint Receivers will he entitled to draw their remuneration fixed at 60 Gms. per month each, out of the funds of the Partnership Firm in their hand. The partnership accounts will be operated jointly by the two Receivers. The joint Receivers are also directed to take possession of the Partnership Assets excluding the portions under dispute and claimed by the respondents Nos. 6. 6a to 6h, 7,10 and 12 to 28, and to sell the Cinema Business of Surasree as a going concern by public auction or by private treaty. The parties to the Suit, that is, appellants, Sadhukhans and the Banerjee group of partners will have liberty to bid and to adjust their share if any, against the purchase price, if any of them is declared to be the highest bidder. The terms and conditions of sale are to be prepared by the Advocates on record of the appearing parties to be approved by the Joint Receivers at a meeting to be held for that purpose. The Partnership Business of Surasree Cinema is to be valued as a going concerned by a valuer to be appointed by the Joint Receivers at a meetings and valuation report is to be submitted by the Valuer in a sealed cover to the Joint Receivers. The sale would be subject to the reserve price and subject to the confirmation by the Court.

Issues: 1. Whether the suit was hit by the provisions of Sec. 69 (1) of the Partnership Act as the Firm was unregistered? 2. Whether the prayer for declaration that the appellant No. 1 was a partner of the firm Surasree Cinema was a right arising out of the contract of Partnership and this right could not be enforced by the Partner Tilokram in view of Sec. 69 (1) of the Act as the Firm was unregistered? 3. Whether the prayer for declaration that the consent decree, dated 22. 9. 77 was not binding on the appellants because the Banerjee group had no authority to admit the liability to the ex-tent of Rs. 1,40,000 in Banisree's Suit was also a right conferred by Sec. 19 (2) of the Partnership Act and could not be enforced in a Court of law as prohibited u/s. 69 (1) of the Act? 4. Whether the prayer for declaration that the sale of the assets of the partnership in favour of Sadhukhans was not binding on the appellants would amount to enforcing the right created in favour of the partners under Clause 8 of the Partnership Act which prohibited transfer of partnership assets without the consent of the other partners? 5. Whether the suit was barred by limitation as Tilokram in his evidence before the learned Trial Court admitted that the partnership was at will and the same was dissolved by notice, dated 5. 3. 55?

Ratio Decidendi: 1. The prayer for declaration that the appellant No. 1 was a partner of Surasree Cinema was unnecessary, redundant and should not have been pressed before the Trial Court considering the facts of the present case. The prayer for declaration that consent decree, dated 22. 9. 77 is not binding on the appellant No. 1 has nothing to do with enforcement of any right conferred by the Partnership Act on the partners as submitted by the Counsel for Sadhukhan respondents. 2. The dissolution of the Firm has not been prayed for on the ground of breach of Clause 8 of the Deed by the Banerjee group of partners. This prayer has been made on the basis of Sec. 44 (e) of the Partnership Act and as such the prayer comes within the purview of the exception expressly provided ups. 69 (3) of the Act. 3. The letter, dated 5. 3. 55 does not comply with any of the requirements ups. 43 (1) of the Act. This notice was given by the respondent No. 7 herein and was addressed to his own lawyer only. By this letter, respondent No. 7 appointed his said lawyer as his arbitrator and in the body of the letter expressly recorded his desire that the dispute regarding dissolution of the Firm should be referred to arbitration. Therefore, the respondent No. 7 had no intention to dissolve the Firm himself by giving any notice. 4. A Suit for dissolution of Partnership and account cannot be treated as a Suit for land even if its Assets consist of immovable properties.

Final Decision: Appeal allowed.