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1979 Supreme(Cal) 362
IN THE HIGH COURT AT CALCUTTA
Ganendra Narayan Ray, J.
Sibeswar Samanta – Petitioner
Versus
Amarnath Samanta and Ors. - Opposite Parties
C.R. No. 1212 of 1979
Decided on: 9th November, 1979
Advocate Appeared:
Saktinath Mukherjee and Phani Bhusan Das, for the petitioner
Ranjit Kumar Banerjee and Ashok Banerjee, for the opposite party no. 1
Pradipta Roy, for the opposite party nos. 2 & 3
In a partnership business, where there is enmity between the partners and co-operation between them is essential for the business, and where one partner is interfering with the business and threatening to dispossess the other partner, the court may appoint a Receiver to protect the interests of both parties.
Headnote:
RECEIVERSHIP - PARTNERSHIP BUSINESS - APPOINTMENT OF RECEIVER - BENAMI TRANSACTION - PRIMA FACIE CASE - DISCRETION OF COURT - INTERFERENCE IN REVISION.
Fact of the Case:
Plaintiff, claiming to be a partner in a partnership business, filed a suit for declaration of his share and for injunction restraining the defendant, his brother, from interfering with the business. The defendant claimed to be the owner of the business and denied the plaintiff's partnership. During the pendency of the suit, the plaintiff applied for the appointment of a Receiver, alleging that the defendant was interfering with the business and threatening to dispossess him. The trial court appointed a Receiver, finding that there was enmity between the parties and that co-operation between them was essential for the business. The defendant appealed, and the appellate court set aside the order of appointment of the Receiver, holding that the plaintiff had not made out a prima facie case of benami and that the appointment of a Receiver would cause hardship to the defendant.
Finding of the Court:
The High Court held that the trial court was justified in appointing a Receiver in the facts and circumstances of the case. The court found that the plaintiff had produced materials which prima facie indicated a case for benami and that there might be an inherent danger in allowing the defendant to run the partnership business. The court also found that the appellate court had failed to consider the reasonings given by the trial court in passing the order for appointment of a Receiver.
Issues: 1. Whether the plaintiff had made out a prima facie case of benami? 2. Whether the appointment of a Receiver was justified in the facts and circumstances of the case?
Ratio Decidendi: 1. The court held that the plaintiff had produced materials which prima facie indicated a case for benami. The court noted that the land and building where the partnership business was situate belonged to the plaintiff and the other partner, and that the books of accounts for a number of years kept in the regular course of business were produced before the court which clearly established that it was the plaintiff who kept the accounts of the business all through. 2. The court held that the appointment of a Receiver was justified in the facts and circumstances of the case. The court found that there was enmity between the parties and that co-operation between them was essential for the business. The court also found that the defendant was interfering with the business and threatening to dispossess the plaintiff.
Final Decision: The High Court set aside the order of the appellate court and upheld the order of the trial court appointing a Receiver.
This Rule is directed against an order dated March 17, 1979 passed by the learned Additional District Judge, Second Court, Hooghly in Misc. Appeal No. 186 of 1978 reversing the order No. 43 dated September 26, 1978 and order No. 47 dated September 30, 1978 passed by the learned Munsif Second Court, Hooghly in Title Suit No. 83 of 1978. The plaintiff is the petitioner in the instant revisional application and the said plaintiff instituted title suit No. 83 of 1978 in the Second Court of the learned Munsif at Hooghly initially against the opposite parties nos. 1 and 2 for declaration that the plaintiff and the husband of the defendant No. 2 had 12 annas and 4 annas shares respectively in a partnership business of Husking Machine and structures, other machineries and accessories in plot no. 142 appertaining to R.S. Khatian No. 252 of Mouza Mayurari and also for a declaration that the opposite party No. 1 was the benamdar of the plaintiff in respect of the said 12 annas share in the business belonging to the plaintiff. A prayer for permanent injunction restraining the said opposite party No. 1 from entering into the suit premises and from disturbing the peaceful possession of the petitioner in respect of the said partnership business was also made. The plaintiff petitioner contended that the plaintiff was the partner of one Shri Lalmohan Dey namely the opposite party No. 3 in the instant revisional application in a business of Husking paddy, wheat and other grains at village Satikhal and the petitioner and the said Lalmohan Dey developed and improved the said business at Satikhal. Thereafter the said petitioner and the said Shri Lal Mohan Dey purchased. 27 acres of land along with a structure thereon and installed a machine and started business and the petitioner had 12 annas share and the said Shri Lal Mohan Dey had 4 annas share. As it was difficult to procure licence in the name of the petitioner and the said Lal Mohan Dey because the authorities concerned were not willing to give two licences to the said two persons and application for licence was made in the name of the defendant opposite party No.1 who is the brother of the plaintiff and the defendant opposite party No.2 who is the wife of the said Shri Lal Mohan Dey and both the said brother and the wife of Shri Lal Mohan Dey were benamdars respectively of the petitioner and the said Lal Mohan Dey. But as the opposite party No.1 started interfering with the said partnership business and had been demanding accounts for the business the aforesaid suit for declaration had to be instituted.
2. It appears that after institution of the said suit the petitioner made an application for interim injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for restraining the defendant opposite party No.1 from interferring with the said partnership business of the plaintiff and the said Shri Lal Mohan Dey. It appears that by the order dated May 10, 1978 the learned Munshif issued an interim order directing the parties to maintain status quo. It further appears that in terms of order No. 2 dated May 10, 1978 one Shri Panchu Gopal Dutta, an Advocate was appointed Commissioner for holding local inspection and to report and the said Commissioner submitted his report on July 3, 1978 and it appears from the said report that the plaintiff petitioner and the said Shri Lal Mohan Dey the husband of the opposite party No.2 could be found in the premises of the business. It further appears from the report of the learned Advocate Commissioner that he found some other persons named therein on the suit plot and on an enquiry from the said persons it transpired that none of the said persons had seen the defendant No. 1 on any occasion. It appears that the plaintiff made an application under Order 40 Rule I read with Section 151 of the Code of Civil procedure for appointment of a Receiver on an allegation that the interim order directing the parties to maintain s
