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1988 Supreme(Online)(Bom) 18

BOMBAY HIGH COURT
Sujata Manohar, J.
Abbashbhai K. Golwala v. R. G. Shah and Others
S. No. 1373 of 1975



A partnership continues despite the retirement of some partners, and remaining partners retain the right to continue business operations.

Headnote:(A) Indian Partnership Act, 1932 - Sections 40, 41, 42 - Under a partnership deed, retirement of some partners does not dissolve the partnership; the remaining partners can continue the business. (Paras 6, 8, 11, 17)

(B) Partnership dissolution - A partnership continues unless all partners mutually agree to dissolve; retirement is distinct from dissolution. (Paras 8, 10, 12)

Facts of the case:
The partnership was originally comprised of five partners with an equal share, which changed upon the death of one partner, leading to a dispute regarding the rights of remaining partners post-retirement of three partners.

Findings of Court:
The court affirmed the plaintiff's right to continue the partnership business after the retirement of the defendants and outlined the procedure for payments to the departing partners as stipulated in the partnership deed.

Issues: 1) Did the defendants retire from the partnership effectively? 2) Was the partnership dissolved? 3) Was the plaintiff entitled to continued business operation? 4) What reliefs were due?

Ratio Decidendi: The court ruled that the retirement of some partners does not nullify the partnership but alters the share distribution among remaining partners, allowing the business to persist under the partnership framework.

Result: The defendants were declared retired from the partnership, and the plaintiff was entitled to continue the business.

Table of Content
1. establishment of partnership and initial agreements. (Para 1 , 2 , 3 , 4)
2. longevity and continuity of partnership amid changes. (Para 5 , 6)
3. legal interpretation of retirement vs dissolution. (Para 8 , 9 , 10)
4. rights of remaining partners to continue operations. (Para 14 , 15 , 16)
5. court's declaration on retirement and consequences. (Para 17 , 20 , 21)

1. The plaintiff, the three defendants and Kantilal Ochhavlat Sheth were carrying on business in partnership in the name of M/s. Goodwill Light House on the terms and conditions recorded in the Deed of Partnership dated 19th June, 1971. The partnership business consisted of manufacturing and / or dealing in Stoves, Lanterns, Blow lamps, Pressure Cookers, Milk Cookers etc. The business was carried on at Ryfa Buildings, Block No. 1. Safedpool, Kurla - Andheri Road, Bombay. Each of the 5 partners had 20% share in the said partnership business. Under clause 2 of the partnership deed it was provided as follows :
"2. The Partnership with the change in the constitution of the firm, has commenced the partnership business on and from the 1st day of January, 1971 and shall continue unless dissolved or determined by and with the mutual consent of all the partners provided that any of the parties hereto may retire from the partnership after giving to the others a previous notice in writing of not less than three calendar months of his intention to retire from the partnership and he shall be deemed to have retired from the partnership at the expiration of the period of the said notice and remaining partners shall be entitled to continue to carry on the said business in partnership among themselves or with any other person or persons."
The other relevant clauses of the partnership deed were Cls.18, 19 and 20. These are as follows :
"18. In the case of retirement of any of the partners, as provided for herein he shall be paid the amount standing to his credit in the books of account of the partnership and his proportionate share in the goodwill and profits of the firm up to the date of his retirement within six months from the date of his retirement. If in case there is a loss for the said period the same shall also be likewise deducted from the amount standing to the credit of the retiring partner.
19. Death, retirement or insolvency of any partner shall not dissolve the partnership but the same shall be continued between the remaining partners. In such a case, the amount standing to the credit of the deceased, retiring or insolvent partner together with the share of the goodwill and the profit up to the date of his death, retirement or insolvency shall be paid to him or to his legal heirs and if there is any loss then proportionate share of loss up to the date of death, retirement or insolvency shall be deducted from the amount standing to his credit.
20. On the dissolution of the partnership, the business shall be wound up and the assets there of sold as provided by the Indian Partnership Act or any other statutory modification or re - enactment thereof for the time being in force provided that each partner shall be at liberty to bid at any sate of the partnership assets."





2. On or about 4th March, 1975 Kantilal Ochhavlal Sheth, who was one of the partners, died. On his death the remaining four partners, that is to say, the plaintiff and the three defendants continued the said partnership; the share of each of the partners became 25% share in the said partnership business.

3. Thereafter the defendants addressed a letter dated 6-5-1975 to the plaintiff. By this letter, inter alia, all the three defendants gave a notice to the plaintiff of their intention to retire from the suit partnership under Cl.2 of the said partnership deed. The relevant paragraph of the said letter is as follows :
"However, without prejudice, we hereby give you notice of our intention to retire from the partnership as required under Cl.2 of the said Partnership Deed dated 19th June, 1971 and we shall




























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