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2022 Supreme(Online)(KER) 66026
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 10 TH DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943 RFA NO. 406 OF 2012 (I)
AGAINST THE JUDGMENT AND DECREE IN OS 55/2009 OF PRINCIPAL SUB COURT, KOTTAYAM APPELLANT/PLAINTIFF MEENU KORAH, W/O.THOMAS KORAH, VAZHAKKALA PUTHUSSERIL HOUSE, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT.
BY ADVS.
SRI.MATHEW JOHN SRI.DOMSON J.VATTAKKUZHY RESPONDENTS:DEFENDANTS RAJU KORAH ABRAHAM, S/o.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY KARA & VILLAGE, KOTTAYAM TALUK & DISTRICT-686011.
(*RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED 3RD RESPONDENT AS PER ORDER DATED
7.2.2022 IN I.A.2/2022) DEEPU VARGHESE ABRAHAM, S/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY KARA & VILLAGE, KOTTAYAM TALUK & DISTRICT-686011.
(*RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED 3RD RESPONDENT AS PER ORDER DATED
7.2.2022 IN I.A.2/2022) *3 LALITHA ABRAHAM, (DIED) W/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY KARA & VILLAGE, KOTTAYAM TALUK & DISTRICT-686011.
DEEPU THOMAS ABRAHAM, S/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY KARA & VILLAGE, KOTTAYAM TALUK & DISTRICT-686011.
(*RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED 3RD RESPONDENT AS PER ORDER DATED 7.2.2022 IN
I.A.2/2022) V.K.KORAH, S/O.THOMAS KORAH, VAZHAKKALA VLIYAVEETTIL, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686 538. ANNAMMA KORAH, W/O.V.V.KORAH, VAZHAKKALA VLIYAVEETTIL, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686538.
GEORGE THOMAS, S/O.C.K.THOMAS, VAZHAKKALA KEEZHAR HILLS, PUTHUPPALLY VILLAGE & KARA, KOTTAYAM DISTRICT-686011.
THOMAS ABRAHAM, S/O.C.K.THOMAS, VAZHAKKALA AGENCIES, VAZHAKKALA COMPLEX, 4TH PHASE, PINIA INDUSTRIAL AREA, BANGALORE-560 058 FROM VAZHAKKALA HOUSE, THRICKOTHAMANGALAM KARA AND POST VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686538.
ABRAHAM THOMAS, S/O.C.K.THOMAS, MANAGING PARTNER, ANUPAMA THEATRE T.B.ROAD, KOTTAYAM MUNICIPAL TOWN FROM VAZHAKKALA HOUSE, THRICKOTHAMANGALAM KARA AND POST VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686538.
ASHA KURIAN, W/O.KURIAN THOMAS, VAZHAKKALA HOUSE, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686538.
LEYA MARIAM THOMAS (MINOR), D/O.KURIAN THOMAS, VAZHAKKALA HOUSE, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686 538. ABU THOMAS KURIAN (MINOR), S/O.KURIAN THOMAS, VAZHAKKALA HOUSE, THRICKOTHAMANGLAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686538.
AJU JOHN KURIAN (MINOR), S/O.KURIAN THOMAS, VAZHAKKALA HOUSE, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686 538. MINORS 11 TO 13 REPRESENTED BY GUARDIAN AND MOTHER 10TH RESPONDENT.
TH0MAS KORAH, S/O.THOMAS KORA, VAZHAKKALA PUTHUSSERIL HOUSE, THRICKOTHAMANGALAM KARA AND POST, VAKATHANAM VILLAGE, KOTTAYAM DISTRICT-686 538. *15 ADDL R.15. SOOSAN SAJI CHERIAN, W/O.SAJI PARAPPURAM CHERIAN,PRASHANTH BHAVAN, MATHA NAGAR,ELAMKULAM P.O, ERNAKULAM – 682 017 (*LEGAL HEIR OF DECEASED 3RD RESPONDENT IS IMPLEADED AS ADDITIONAL 15TH RESPONDENT AS PER ORDER DATED 7.2.2022 IN I.A 3/2022) BY ADVS.
JAGAN ABRAHAM M.GEORGE ACHU SUBHA ABRAHAM P.JAYABAL MENON K.JAYASANKAR (KAPRASSERY) S.JANAKI PHILIP T.VARGHESE, THOMAS T.VARGHESE, REJI GEORGE, RAJEEV P.NAIR, BINITHA T.M., RISTO K.JOHN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
10.02.2022, ALONG WITH RFA.761/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 10 TH DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943 RFA NO. 761 OF 2013
AGAINST THE JUDGMENT AND DECREE IN OS 131/2009 OF ADDITIONAL SUB COURT, KOTTAYAM APPELLANTS/ DEFENDANTS 6 TO 12 GEORGE THOMAS, AGED 56 YEARS, S/O.C.K.THOMAS, VAZHAKKALA KEEZHAR HILLS HOUSE, PUTHUPPALLY VILLAGE, PUTHUPPALLY KARA, KOTTAYAM, PIN: 686 011.
THOMAS THOMAS, AGED 54 YEARS, S/O.C.K.THOMAS, VAZHAKKALA HOUSE, VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, KOTTAYAM DISTRICT, NOW RESIDING AT VAZHAKKALA AGENCIES, VAZHAKKALA COMPLEX, 4TH FAISE, PEENIA INDUSTRIAL AREA, BANGALORE - 560 058.
ABRAHAM THOMAS, AGED 41 YEARS, S/O.C.K.THOMAS, VAZHAKKALA HOUSE, VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, THRIKKOTHAMANGALAM P.O., KOTTAYAM DISTRICT, NOW WORKING AS MANAGING PARTNER, ANUPAMA THEATRE, T.B.ROAD, KOTTAYAM MUNICIPALITY, KOTTAYAM, PIN: 686 001 ASHA KURIAN, AGED 46 YEARS, W/O.KURIAN THOMAS, VAZHAKKALA HOUSE, VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, KOTTAYAM DISTRICT, PIN: 686 011.
LEYAM MARIYAM THOMAS, AGED 21 YEARS, D/O.KURIAN THOMAS,VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, KOTTAYAM DISTRICT, PIN: 686 011.
ABU THOMAS KURIAN, AGED 17 YEARS, S/O.KURIAN THOMAS, REPRESENTED BY NEXT FRIEND AND MOTHER ASHA KURIAN, VAZHAKKALA HOUSE, VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, KOTTAYAM DISTRICT, PIN: 686 011.
AJU JOHN KURIAN, AGED 16 YEARS, S/O.KURIAN THOMAS, REPRESENTED BY NEXT FRIEND AND MOTHER ASHA KURIAN, VAZHAKKALA HOUSE, VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, KOTTAYAM DISTRICT, PIN: 686 011.
BY ADVS.
SRI.REJI GEORGE SRI.RAJEEV.P.NAIR RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 5 & 13 MEENU KORAH, AGED 55 YEARS, W/O.THOMAS KORAH, VAZHAKKALA PUTHUSSERIL HOUSE, VAKATHANAM VILLAGE THRIKKOTHAMANGALAM KARA, THRIKKOTHAMANGALAM P.O., KOTTAYAM DISTRICT, PIN: 686 011.
RAJU KORAH ABRAHAM, AGED 47 YEARS, S/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY VILLAGE, PUTHUPPALLY KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN: 686 011.
DEEPU VARGHESE, AGED 43 YEARS, S/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY VILLAGE, PUTHUPPALLY KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN: 686 011. *4 LALITHA ABRAHAM, (DIED) AGED 63 YEARS, W/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY VILLAGE, PUTHUPPALLY KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN: 686 011.
ROOPU THOMAS ABRAHAM, AGED 37 YEARS, S/O.V.O.ABRAHAM, VAZHAKKALA GARDENS, PUTHUPPALLY VILLAGE, PUTHUPPALLY KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN: 686 011.
V.K.KORAH, AGED 62 YEARS, S/O.C.K.THOMAS, VAZHAKKALA VALIYAVEETTIL, VAKATHANAM VILLAGE, THRIKKOTHAMANGALAM KARA, THRIKKOTHAMANGALAM P.O., KOTTAYAM DISTRICT, PIN: 686 011. THOMAS KORAH, AGED 25 YEARS, S/O.THOMAS KORAH, VAZHAKKALA PUTHUSSERIL HOUSE, VAKATHANAM VILLAGE, VAKATHANAM KARA, KOTTAYAM DISTRICT, PIN: 686 538. *8
ADDL.R8 SUSAN SAJI CHERIYAN, AGED 58 YEARS, W/o.SAJI P.CHERIAN, 9A, RDS OASIS, 4TH CROSS ROAD, NETHAJI NAGAR, KADAVANTHRA, COCHIN, PIN-682 020. * ADDL. R8 IS IMPLEADED AS THE LEGAL HEIR OF DECEASED 4 th RESPONDENT VIDE ORDER DATED 7/02/2022
IN I.A.No.1 of 2022.
BY ADVS.
JAGAN ABRAHAM M.GEORGE – R2 to R5 SMT.ACHU SUBHA ABRAHAM - R6 SRI.P.JAYABAL MENON – R2 to R5 SRI.MATHEW JOHN K - R1 SRI.PHILIP T.VARGHESE - R6 SRI.THOMAS T.VARGHESE – R6 DOMSON J VATTAKUZHY - R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
10.02.2022, ALONG WITH RFA.406/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
“C.R.” P.B. SURESH KUMAR & C.S. SUDHA, JJ.
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Dated this the 10 th day of February, 2022
JUDGMENT
C.S.Sudha, J.
These appeals are against the judgment and decree in
O.S.No.55/2009 dated 20.10.2011 and O.S.No.131/2009 dated 18.10.2012 on the file of the Sub Court, Kottayam. The appellant in RFA No.406/2012 is the plaintiff and the respondents are the defendants in O.S.No.55/2009. The appellants in RFA No.761/2013 are defendants 6 to 12 and the respondents are the plaintiff and defendants 1 to 5 and 13 in O.S.No.131/2009. Parties in these appeals will be referred to as described before the court below. Parties in both the suits are the same. The suits deal with two different partnership firms. However, the terms contained in both the partnership deeds are admittedly the same. As the parties and the terms of the deeds are the same, the appeals are being disposed of together. Both the aforesaid suits were filed by the plaintiff for dissolution of partnership and rendition of accounts.
O.S.No.55/2009 was for dissolution of partnership by name ‘Anupama Theatres’ and O.S.No.131/2009 was for dissolution of the partnership by name ‘Apsara Theatres’. According to the plaintiff, the partnership business is to be conducted by the Managing Partners who have a duty to keep proper accounts and convince the other partners of the details of the accounts. They are liable to prepare the balance-sheet and share the profits with the partners in accordance with their share. This is not being done. Hence the plaintiff is not interested in proceeding with the partnership business. So, she sent
Ext.A2 notice for dissolution of the partnership firms and thereafter filed the aforesaid two suits. The defendants disputed the claim of the plaintiff and contented that if the latter is desirous of retiring from the firms, she is free to do so. In such eventuality, the plaintiff can be given her share of profits. But she cannot insist for a dissolution of partnerships as the retirement of a partner would not result in dissolution of the same.
2. In O.S.No.55/2009, the learned Principal Sub Judge, Kottayam, finding that Ext.A1 partnership deed dated 10/07/2003 relating to Anupama Theatres is not one 'AT WILL’, dismissed the suit. However, the learned Additional Sub Judge in O.S.No.131/2009 finding that Ext.A1 partnership deed dated 10/07/2003 relating to Apsara Theaters is a partnership 'AT WILL’, decreed the suit. The court below in O.S.No.55/2009 referring to the various clauses in Ext.A1 with specific reference to clause
16(b), which deals with retirement of a partner, held the partnership to be one 'AT WILL’. The learned Additional Sub Judge in O.S.No.131/2009 on the other hand held that there is neither an express or implied provision relating to duration or determination of the partnership in the deed and that the clause relating to retirement of a partner cannot be equated with ‘determination’ within the meaning of Section 7 of the Partnership Act, 1932 and hence finding that it is a partnership 'AT WILL’, proceeded to decree the suit.
3. Heard Sri.Mathew John, the learned counsel for the appellant in R.F.A.No.406/2012 and for respondents 1 to 7 in
R.F.A.No.761/2013 ; Sri.Reji George, the learned counsel for the appellants in R.F.A.No.761/2013 and also for respondents 7 to 10 in
R.F.A.No.406/2012 and Sri.Jagan Abraham M.George, the learned counsel for additional eighth respondent in R.F.A.No.761/2013 and for additional 15 th respondent in R.F.A.No.406/2012.
4. The only point to be decided is - whether the partnership
firms referred to in Ext.A1 deeds are partnerships 'AT WILL’? The learned counsel for defendants 6 to 12 (Appellants in R.F.A. No.761/2013) submitted that though the deeds say that the partnerships are 'AT WILL’, a harmonious reading of the clauses in both the deeds would show that there is in fact a duration for the business, which can be implied from the terms contained therein. The partn
