JUDGMENT :

PANKAJ JAIN, J.

1. Defendant is in second appeal aggrieved of judgement and decree passed by both the Courts below whereby suit filed by the plaintiff seeking dissolution of the partnership and rendition of the accounts stands decreed. For convenience, parties hereinafter are referred to by their original position in the suit, i.e. the appellant as defendant and respondent as plaintiff.

2. Parties to the lis are real brothers. As per plaintiff, he along with defendant entered into a partnership business. They executed a partnership deed. Both of them became partners to 1/2 share each. Partnership firm was registered. Defendant at the time of execution of partnership deed was working with LIC at New Delhi. A plot was purchased by the plaintiff in their joint name. The same was mortgaged to raise loan of Rs.3.00 lakhs from PNB, Civil Lines, Rohtak. Father as well as brother-in-law of the parties to the lis signed the loan documents as guarantors. Building was constructed by the plaintiff. Defendant after leaving his service joined plaintiff.

3. Plaintiff claims to have discovered that defendant was misappropriating the funds of firm and diverting the same to his own account clandestinely. A dispute arose between the parties. The same was initially settled by the family members. The settlement could not be effectuated. Plaintiff filed a suit seeking decree of prohibitory injunction against defendant from carrying on business and from acting as his agent. On the interim application filed by the plaintiff, Court appointed Receiver. Under the order of Court , Receiver gained control of the affairs of the firm. Factory premises were sealed. Plaintiff claims that on 11.05.2001, a compromise was arrived at between the parties. In terms thereof, defendant paid a sum of Rs.2.15 lakhs to Ashok Kumar Khanna, the brother-in-law of the parties, who stood as a guarantor to the loan availed by the partnership firm. Another sum of Rs.4.00 lakhs was paid to the plaintiff. The balance amount could not be paid. Amount already paid stands forfeited as per terms of the compromise. Plaintiff, however, undertakes to get the same adjusted while settling the accounts. In the earlier suit filed by the plaintiff their elder brother namely Krishan Lal was impleaded vide order dated 15.01.1999. The suit, however, was dismissed vide judgment and decree dated 09.08.2001. The suit was dismissed holding that the suit for prohibitory injunction was not maintainable as the plaintiff should have sued defendant for dissolution of partnership and rendition of accounts. As per plaintiff, defendant is bound to render accounts of the partnership business and the amount received by firm by letting out the shop constructed over a joint plot.

4. Suit was contested by the defendant claiming that the suit was not maintainable being barred under Order II Rule 2 CPC. Defendant further claimed that in the earlier round of litigation, a compromise was arrived at between the parties on 11.05.2001. The same was acted upon. Defendant paid a sum of Rs.2,15,000/- to their brother-in-law, the guarantor, in addition to Rs.3.00 lakhs paid to the plaintiff. Sum of Rs.8,50,000/- was to be paid towards full and final settlement by the defendant to the plaintiff, but the same could not be paid after their brother became party to the present suit. The defendant has always been ready and willing to pay balance amount of Rs.8,50,000/- to the plaintiff and also moved an application seeking disposal of the suit in terms of compromise. However, the same was dismissed. Earlier suit was dismissed vide judgment and decree dated 09.08.2004. The defendant further pleaded that the suit was barred by limitation.

5. Suit was put to trial by the Court of the First Instance framing following issues:-

“1) Whether the plaintiff is entitled to the decree for rendition of accounts, as prayed for? OPP

2) Whether the suit is barred under Order 2 Rule 2 CPC? OPD

3) Whether the suit is barred by limitation? OPD