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2019 Supreme(Mad) 2186
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
A. Fathima Faridunnissa & Others - Petitioners
Versus
T.A.H. Zubaida Ammal & Others – Respondents
A.S. No. 328 of 2005 & CROS. OBJ. No. 10 of 2012 & CMP Nos. 5432 of 2005 & 12876 of 2019
Decided On : 19-11-2019
Chitra Sampath, S.V. Jayaraman, Senior Counsel, T.S. Baskaran, Usha Raman, Advocates.
Headnote:
Indian Partnership Act - Sec. 42/44- Civil Procedure Code - Section 96 - For sake of convenience - Trial court - Declared that this partnership firm Crystal Transport - Reception of additional evidence - Has been laid by petitioner/plaintiff for dissolution of firm Crystal Transport Service for taking accounts for appointment of receiver and for permanent injunction restraining the defendants from dealing with or dispose of assets of partnership firm suit laid by the petitioner/plaintiff has been resisted by respondents/defendants on various grounds - Based on pleadings put forth by respective parties trial was conducted and on appreciation of oral and documentary evidence preliminary decree was passed by trial court - As per judgment and decree of appellate court above pointed out one has been appointed as commissioner to take accounts - As could be seen from the materials available on record, inasmuch as Advocate Commissioner was unable to comply with the task assigned to him, the lower court had appointed one as Receiver. It is found that the defendants preferred an appeal challenging appointment of as Receiver in file of Principal District Judge – Held, Petitioner/plaintiff has preferred an application for the reception of additional evidence in contending that the receiver had failed to discharge his duties properly and he has been taking sides and supporting the respondents/defendants and according to her receiver had filed on behalf of MOH second defendant of on the file of the Principal Subordinate Court, Pondicherry and has come forward with the certified copy of filed by receiver in the suit on behalf of MOH second defendant as additional evidence fact that receiver had filed the on behalf of second defendant in suit is not in dispute - However, in my considered opinion when had been filed by receiver on behalf of second defendant after the conclusion of the proceedings before the trial court, on that basis alone, it cannot be concluded straight away that the receiver had not properly discharged his duties and taking sides as put forth by the counsel appeared for the petitioner/plaintiff. In such view of the matter, the additional evidence projected by petitioner/plaintiff in support of her case need not be considered for determining the issues involved in the matter as such – Therefore petition filed for the reception of additional evidence is dismissed - In light of factors fair and order passed in file of II Additional District Judge, Pondicherry, are set aside in and matter is remitted back to trial court with the direction to provide opportunities to both parties to adduce further evidence particularly to sustain statement of accounts projected by them respectively by examining the authors of same. trial court is also further directed that considering facts and circumstances of the case and after assessing and analyzing further materials to be placed on record – petition dismissed
JUDGMENT :
(Prayer: First Appeal filed under Section 96 of Civil Procedure Code, against the judgment and decree dated 23.04.2004 and made in I.A.No.33 of 1995 in O.S.No.286 of 1978 on the file of the II Addl. District Judge, Pondicherry.
Cross Appeal filed under Order 41 Rule 22 of CPC against the final decree passed in 23.04.2004 in I.A.No.33 of 1995 in O.S.No.286 of 1978 on the file of the II Additional District Judge at Pondicherry.)
1. A.S. No. 328 of 2005 and Cross Objection No. 10 of 2012 are directed against the fair order and decreetal order dated 23.04.2004 passed in I.A.No.33 of 1995 in O.S.No.286 of 1978 on the file of the II Additional District Judge, Pondicherry.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. O.S.No.286 of 1978 has been laid by the petitioner/plaintiff for the dissolution of the firm Crystal Transport Service, for taking the accounts, for appointment of the receiver and for permanent injunction restraining the defendants 1 and 2 from dealing with or dispose of the assets of the partnership firm. The abovesaid suit laid by the petitioner/plaintiff has been resisted by the respondents/defendants on various grounds. Based on the pleadings put forth by the respective parties, the trial was conducted and on the appreciation of the oral and documentary evidence, the preliminary decree was passed by the trial court on 19.09.1988 as follows:
“This Court Doth order and decree:
1. That the proportionate share of the plaintiff in the partnership is one fourth share.
2. That it is hereby declared that this partnership firm Crystal Transport be and hereby deemed to have been dissolved from the 7th day of October 1978 as per Sec. 42(b) r/w Sec. 44(g) of the Indian Partnership Act.
3. And it is ordered that the accounts be taken:-
(a) That an account be taken to ascertain the plaintiff’s share of capital and income if any upto the date of dissolution aforesaid according to Order 20 Rule 15 C.P.C.
(b) That 3 months time is granted to plaintiff to verify and defendants 1 to 3 do file statement of final accounts, balance sheet and profit and loss account duly audited by auditors of the firm for five completed accounting years before the date of dissolution.
(c) And that the result of the accounts be certified by the auditors of the suit firm and be filed in court.
4. That the quantum of additional court fee if any payable by the plaintiff be enquired and decided after ascertainment of the quantum of plaintiff’ share if any after the accounts are taken.
5. That the prayer for appointment of receiver for suit firm may be considered after the final accounts, balance sheet and profit and loss account are filed by the parties and if any debts or assets to be realised by the firm.
6. That the suit against D4 be and the same is hereby dismissed since no relief is found necessary or warranted in this suit without prejudice to the rights of plaintiff according to law.
7. That both sides do bear their costs.
And lastly, it is ordered that this suit stand adjourned for making a final decree to the 18th day of December 1988.
4. Aggrieved over the judgment and decree of the trial court, as above pointed out, the plaintiff preferred the first appeal in A.S.No.215 of 1988 and the first appellate court by the judgment and decree dated 08.08.1989, allowed the appeal as extracted below:
“This Court Doth order and decree
1. That the appeal be and the same is hereby allowed:-
2. That the decree dated 19.09.1988 in O.S.No.286/78 passed by the Principal Sub Judge, Pondicherry, be and the same is hereby set aside:
3. that there shall be a preliminary decree in the following terms:
4. that the suit firm Crystal Transport Private Limited, Karaikal, stands dissolved on and from 15.11.1978.
5. that Sri C.S.Narasimhan, advocate, Pondicherry is appointed commission to take accounts from 01.05.1971 till 15.11.1978.
6. that in taking accounts the commission shall have due regard to Sections 37 and 48 of the Ind
