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1993 Supreme(Del) 350
High Court Of Delhi
MAHINDER PAL WADHWA - Appellant
Versus
ASHOK KUMAR WADHWA - Respondent
Interim Application 13325 of 1992
Decided On : 07/06/1993
A.K.SHARMA, P.V.KAPUR
A partner who has ceased to be a partner of a firm is not entitled to any discretionary relief from the court.
Headnote:
PARTNERSHIP - DISSOLUTION - FAMILY SETTLEMENT - RETIREMENT OF PARTNER - APPOINTMENT OF RECEIVER - SUPPRESSION OF MATERIAL FACTS - INTERIM RELIEF.
Fact of the Case:
Plaintiff filed a suit for dissolution of partnership and rendition of accounts. Plaintiff alleged that he was being ousted from the business and defendants were carrying on business according to their sweet will. Plaintiff also mentioned that he had come to know on 10/08/1992 of a will executed by his father dated 27/05/1991. According to the said will, the share of Shri K. L. Wadhwa in the said partnership devolved on defendants 4 to 5 who are minor sons of the plaintiff. Therefore, it has also been alleged that induction of defendant No. 3 as a partner in place of Shri K. L. Wadhwa was itself wrong and defendants 4and 5 were entitled to become partners in view of the said will.
Finding of the Court:
The court found that the plaintiff had ceased to be a partner of the firm M/s Delhi Steel Rolling Mills. The court also found that the plaintiff had suppressed material facts from the court by not disclosing the family settlement and other documents in the plaint. The court held that the plaintiff was not entitled to any discretionary relief.
Issues: 1. Whether the plaintiff continued to be a partner in the partnership firm M/s Delhi Steel Rolling Mills? 2. Whether the plaintiff was entitled to the equitable reliefs sought for by him? 3. Whether the plaintiff had suppressed material facts from the court? 4. Whether the plaintiff was entitled to any interim relief?
Ratio Decidendi: 1. The court held that the plaintiff had ceased to be a partner of the firm M/s Delhi Steel Rolling Mills on the basis of the family settlement dated 29/11/1991. The court found that the family settlement was an admitted document and that the plaintiff had failed to rebut the same. 2. The court held that the plaintiff was not entitled to the equitable reliefs sought for by him because he had suppressed material facts from the court. The court found that the plaintiff had failed to disclose the family settlement and other documents in the plaint. 3. The court held that the plaintiff was not entitled to any interim relief because he had ceased to be a partner of the firm.
Final Decision: The court dismissed the plaintiff's applications for appointment of a receiver and for restoration of the original ex parte interim order. The court also directed the defendants to maintain proper accounts of the business of partnership firm including its stocks and other materials.
( 1 ) THE plaintiff has instituted the present suit for dissolution of partnership M/s Delhi Steel Rolling Mills and rendition of accounts. This order will dispose of two applications of the plaintiff under order 40 Rules 1and2 and Order 39 Rules 1and2 of the Code of Civil Procedure (IAs. 11791. / 92 and 1943/93) and another application of the plaintiff under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (I. A. No. 13325/92) and an application on behalf of defendants 2 and 3 under Order 39 Rule 4 of the Code of Civil Procedure (I. A. No. 12241/92) for vacating the ex parte interim order dated 21/09/1992.
( 2 ) PLAINTIFF defendant No. 2 are real brothers and defendant No. 3 is their mother. Shri K. L. Wadhwa was fathcr of plaintiff and defendant No. 2 and husband of defendant No. 3. He had started business of M/s Delhi Steel Rolling Mills. The. said business was being carryied on by him in partnership vide partnership deed dated 16/08/1988. Defendant No. 1 Ashok Kumar Wadhwa a relation was also a partner in the said partnership firm. Mr. K. L. Wadhwa died on 10/07/1991. The partnership was reconstituted vide a deed of partnership dated 11/07/1991 with the plaintiff and defendants 1 to 3 as its partners having equal shares. The case of the plaintiff as set out in the plaint is that he is being ousted from the business of the said partnership and defendants are carrying on business according to their sweet will. The plaintiff is not even being allowed to enter the partnership premises. It is further alleged that the defendants are frittering away the assets of the partnership. Huge quantities of stocks and material belonging to the firm is alleged to have been clandestinely removed by the defendants from the premises of the firm. The assets and stocks and material belonging to the firm are a lleged lo have been disposed of by the defendants from the premises of the firm. The assets and stocks and materials belonging to the firm are alleged to have been disposed of by the defendants and the funds are being mis-appropriated. The plaintiff has also mentioned in the plaint that he had come to know on 10/08/1992 of a will executed by his father Shri K. L. Wadhwa dated 27/05/1991. According to the said will, the share of Shri K. L. Wadhwa in the said partnership devolved on defendants 4 to 5 who are minor sons of the plaintiff. Therefore, it has also been alleged that induction of defendant No. 3 as a partner in place of Shri K. L. Wadhwa was itself wrong and defendants 4and 5 were entitled to become partners in view of the said will. However, during the course of hearing of these applications, this aspect of the plaintiff s case was not pesued:
( 3 ) IN view of the allegations in the plaint, an ex parte interim order was passed on 21/09/1992 which is reproduced as under: In the meanwhile, the defendants are restrained from obstructing the plaintiff from entering the premises of the partnership firm and from exercising his rights as partner of the said firm. The defendants arc also restrained from transfering, alienating or disposing of the partnership assets like plant and machinery etc. They will maintain proper accounts of all transactions relating to stocks, material and goods of the partnership.
( 4 ) SOONTHEREAFTER defendants 2and3 applied under Order 39 Rule 4 of Code of Civil Procedure for vacating the said order. Notice of the said application was issued to the plaintiff through counsel. As per proceedings recorded on 1st October, 1992, it appeared that the counsel for the plaintiff avoided service of the notice. Further, the averments contained in the application of the defendants under Order 39 Rule 4 of the Code of Civil Procedure gave an impression that the plaintiff has suppressed material facts from the Court. Therefore, ex parte interim order dated 21st September, 1992 was modified on 1st October, 1992 to the extent that the said order in so far as it restrained the defendants from obstr
