1939     Present. Soertsz A.C.J. and Nihill J.



BROWNE v. DAVIS.

118-D. C. Nuwara Eliya, 2,099. 

Partnership-Action for dissolution-Right of partner to retire-Power of Court to order dissolution-No reasonable prospect of profit a good ground for dissolution-Partnership Act, 1890, ss. 53 and 54 Victoria, Cap. 9, s. 32.

The power of a Court to order a dissolution of a partnership under section 32 of the Partnership Act, 1890, is not fettered by the terms of a partnership agreement.

The fact that a partnership agreement gives a partner the remedy of retirement does not deprive him of the right to ask for a dissolution of the partnership.

Where a partnership cannot be carried on with a reasonable prospect of profit, that would be a good ground for dissolution.

THIS was an action for dissolution of partnership entered into between the plaintiff-respondent and the two defendants-appellants on August 17, 1933. The nature of the business was that of a preparatory school known as Haddon Hill for the children of European parents. The learned District Judge ordered a decree of dissolution and the defendants-appellants appealed from that order.

J. E. M. Obeyesekere (with him O. L. de Kretser Jr.), for the defendants, appellants.-The dissolution is asked for on the grounds that-(1) the business could only be carried out at a loss, and (2) there is a loss of confidence in the partners. English law of Partnership is applicable. The dissolution is asked for under section 35 of Partnership Act, 1890 (53 and 54 Vic. c. 39 and Lindley on Partnership (8th ed.) p. 641). Under that section a discretion is vested in the Court to dissolve the partnership

on the grounds stated therein, but this discretion cannot be exercised where the terms of the deed of partnership had provided for the retirement of the partner.

To obtain a dissolution under the first ground, the plaintiff must prove that there is no hope of ever getting profits. Otherwise any partner could come into Court and get the necessary publicity to spoil the business.

The question whether the business can be carried out without loss is considered in Handyside v. Camel [1 I7 T. L. R. 623]; Jennings v. Baddeley [2 (1856) 3 K. & J. 78]; and Bailey v. Ford [3 (1843) 13 Sim. 495.]

The partnership can be dissolved only in the manner laid down in the deed and the Court will not exercise its discretion in favour of dissolution as held in Moss v, Elphick [4 (1010) 1 K. B. 846.]; and in Abbott v. Abbott [5 (1938) 3 All E. R. 823.]. The partnership could not be determined at the instance of one of the partners. The Court should not exercise its discretion in favour of a plaintiff who has not availed himself of that provision of the deed.

Loss of confidence to carry on the partnership is dealt with in Lindley on Partnership, p. 656; Anonymous (1855) 2 K. & J. 441 at 451 ; and Harrison v. Tennant [ 6 (1856) 21 Beav. 482 at 492.].

H. V. Perera, K.C. (with him E. F. N. Gratiaen), for plaintiff-respond­ent.-The plaintiff is a man of substance and he will have to pay the debts of the partnership. There are writs aga