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1998 Supreme(Cal) 506
High Court Of Calcutta
AMITAVA LALA
ROMI JAISWAL - Appellant
Versus
SATYA BHAMA JAISWAL - Respondent
G. A. 2811 Of 1998
Decided On : 11/30/1998
A suit for dissolution of partnership and accounts is not a suit for land, even if the partnership assets consist of immovable properties, and is therefore maintainable in a Court even though the Court has no territorial jurisdiction over the assets of the firm which are immovable properties.
Headnote:
PARTNERSHIP - SUIT FOR DISSOLUTION - JURISDICTION - LEAVE GRANTED UNDER CLAUSE 12 OF THE LETTERS PATENT - REVOCATION - FORUM CONVENIENCE - BALANCE OF CONVENIENCE - SUIT FOR LAND - PARTNERSHIP PROPERTY - MOVABLE PROPERTY - DELAY.
Fact of the Case:
The petitioner, a partner in a partnership firm, filed an application for revocation of leave granted under Clause 12 of the Letters Patent and dismissal of the suit on the grounds that the suit was essentially a suit for land and the appropriate forum for the relief was the Court in the State of Bihar.
Finding of the Court:
The court held that the suit was primarily a suit for dissolution of partnership and accounts, and that the question of declaration of title to immovable property situate outside the jurisdiction of the Court would arise only if, in a defence in the suit on merit, it was decided that the immovable properties were not properties of the partnership firm. The court also held that the balance of convenience did not overwhelmingly favor the defendant/petitioner, and that the plaintiff/respondent had not acquiesced in the steps taken by the defendant to carry forward the progress of the suit or made use of the existence of the suit to obtain interlocutory reliefs to his own advantage.
Issues: 1. Whether the suit was essentially a suit for land and the appropriate forum for the relief was the Court in the State of Bihar? 2. Whether the balance of convenience overwhelmingly favored the defendant/petitioner? 3. Whether the plaintiff/respondent had acquiesced in the steps taken by the defendant to carry forward the progress of the suit or made use of the existence of the suit to obtain interlocutory reliefs to his own advantage?
Ratio Decidendi: 1. The court held that the suit was primarily a suit for dissolution of partnership and accounts, and that the question of declaration of title to immovable property situate outside the jurisdiction of the Court would arise only if, in a defence in the suit on merit, it was decided that the immovable properties were not properties of the partnership firm. 2. The court held that the balance of convenience did not overwhelmingly favor the defendant/petitioner, and that the plaintiff/respondent had not acquiesced in the steps taken by the defendant to carry forward the progress of the suit or made use of the existence of the suit to obtain interlocutory reliefs to his own advantage.
Final Decision: The court dismissed the application for revocation of leave granted under Clause 12 of the Letters Patent and dismissal of the suit.
( 1 ) THE defendant has taken out this application on 29th July, 1998 for the purpose of revocation of the leave under Clause 12 of the Letters Patent and plaint be taken off the file or the suit be dismissed with other consequential reliefs supported by an affidavit dated 14th July, 1998.
( 2 ) THE petitioner made two fold attack for the above i. e. A) Suit is basically a suit for land;b) Forum convenience or natural forum for the relief is the appropriate Court in the State of Bihar;.
( 3 ) IT appears that the suit was instituted by the plaintiff as far back as on 13th November 1997 praying alia;leave Order 11 Rule 2 of the Code of Civil Procedure, 1908 and for the leave under Clause 12 of the Letters Patent, 1785 for instituting the instant suit and prays for the following reliefs :-A) A declaration that the partnership created under the Deed of Partnership dated September 15, 1982 known as M/s. Sujata Picture Palace stood dissolved as on November 10, 1997;b) Alternatively that the said partnership be dissolved by a decree of this Hon'ble Court;c) Injunction;d) Receiver;e) Accounts;f) Attachment;g) Costs;h) Such further or other order and/or orders or direction or directions be passed as this Hon'ble Court may deem fit and proper. .
( 4 ) ALTHOUGH there is an arbitration clause in the concerned agreement in connection with the suit but the parties by their conduct superseded such arbitration clause.
( 5 ) I have perused the record and found that an interlocutory application was also made by the plaintiff as against the defendant/petitioner on 9th December, 1997 praying amongst others appointment of Receiver and injunction in respect of the properties under schedule 'k' of the petition 4 which is pending before this Court and even the petitioner took participation in such proceeding by filing affidavit therein.
( 6 ) THE petitioner contended that although relief claimed in the plaint for dissolution of a partnership firm with certain consequential and alternative reliefs but upon going through the plaint it will appear that the plaintiff/respondent, in fact, sought for declaration of title of the immovable properties situate outside the jurisdiction of this Court. The question of dissolution of partnership firm will come after the adjudication as to whether the properties are at all belong to the partnership or not, so to say, declaration of title, therefore, suit will be hit by principles of "suit for land".
( 7 ) ON principles of "suit for land" Mr. Mitter, learned Senior Counsel appearing for the petitioner cited a Division Bench Judgment reported in Brijmohanlal Rathi v. Smt. Gita Devi Rathi, AIR 1992 Cal 67 to give an emphasize on the point that when a person claimed for a dissolution of firm claiming to be exclusive owner of the assets of the firm including immovable property, a dispute has to be there as to whether immovable property formed asset of the firm or not. In such a case the suit is for title and consequently a "suit for land" but not a suit relating to assets of firm nor for specific performance simpliciter. He also relied upon 1969 (3) SCC 555 : (AIR 1969 NSC 77), Arjun Kanoji Tankar v. Santaram Kanoji Tankar only to point out that unless any property declared that properties belonged to partnership such property cannot loose its character and become partnership property.
( 8 ) THEREFORE, in all, Mr. Mitter, explained that declaration of title of the immovable properties situate outside the jurisdiction is the primary object of the plaintiff in the suit.
( 9 ) SO far the question of 'natural forum' is concerned, this Court is much keen to know about and for the same called upon Mr. Mitter to make his much extensive argument on that score.
( 10 ) MR. Mitter relied upon AIR 1952 Cal 82 Parasram Harnandrain Chitandas to establish such point.
( 11 ) IT appears therefrom that a Single Bench of this Court held that where in a suit for dissolution of partnership, the business is a runni
