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Hasham Ismayal Walad Haji Khamisa Vs. Nariman Rustomji - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1924Bom57; 81Ind.Cas.463
AppellantHasham Ismayal Walad Haji Khamisa
RespondentNariman Rustomji
Excerpt:
partnership - suit for dissolution--conduct of plaintiff depriving him of profits--decree for dissolution and accounts--partnership for fixed term --premature suit for dissolution--expiry of term before hearing of suit--suit, maintainability of--contract act (ix of 1872), section 254--disputes between partners--partnership, dissolution of. - - various allegations and counter-allegations have been made in the pleadings and in the evidence and from, these it is perfectly obvious that there was a state of feeling existing between the partners which rendered it impossible for the partnership to be continued with any advantage......and outstandings of the profits and losses; and for a declaration that he was entitled to one-half share in profits and losses and for costs.2. the partnership was entered into by partnership-deed of 14th july 1915 by which the parties agreed that the partnership was to last from 1st january 1915 till 31st december 1919. the plaintiff's suit was filed on the 20th november 1919 and the suit was premature unless he could not bring himself within the provisions of section 254 of the contract act. various allegations and counter-allegations have been made in the pleadings and in the evidence and from, these it is perfectly obvious that there was a state of feeling existing between the partners which rendered it impossible for the partnership to be continued with any advantage. the court was.....
Judgment:

1. The plaintiff sued for a declaration that the partnership of the parties in the firm of Mehta and Co., was already dissolved or should be dissolved; for accounts of the stock and outstandings of the profits and losses; and for a declaration that he was entitled to one-half share in profits and losses and for costs.

2. The partnership was entered into by partnership-deed of 14th July 1915 by which the parties Agreed that the partnership was to last from 1st January 1915 till 31st December 1919. The plaintiff's suit was filed on the 20th November 1919 and the suit was premature unless he could not bring himself within the provisions of Section 254 of the Contract Act. Various allegations and counter-allegations have been made in the pleadings and in the evidence and from, these it is perfectly obvious that there was a state of feeling existing between the partners which rendered it impossible for the partnership to be continued with any advantage. The Court was at liberty to infer from that that the business of the partnership could not be carried on at a profit and that it would only be carried on at a loss. However that may be, the period of partnership term came to an end very soon after the suit was filed and long before the suit came on for hearing so that the question whether the suit was premature was of little importance. But the Court refused the plaintiff's prayer for dissolution and dismissed the 'suit on the ground apparently that the plaintiff by his conduct had excluded himself from claiming any of the reliefs which the Court might otherwise have granted him. We think that that decision was wrong and that a decree for dissolution should have been passed and we now make that decree. It will follow that there must be a direction for an account of the partnership to be taken, and we must remand the case to the lower Court for appointing a commissioner to take an account of the partnership Aip to 20th November 1919. That account will be the usual partner ship account and will set out the assets and debts of the partnership, the liability of the partners to the partnership and the amounts which they had drawn respectively from the assets. When that account has been taken it will be known whether or riot there are any profits left to be divided among the partners. If there are no profits then it will obviously be unnecessary to go into the question whether the plaintiff is debarred hy his conduct in claiming any share in the profits under Clause 20 of the partnership deed. In taking the account if is found that there are profits to be divided then the question will have to be considered by the Court whether the plaintiff has lost his right under Clause 20 of the partnership deed to his one half-share of the profits and if so, from what date, and whether the learned Judge's findings on issues Nos. 4 and 5 should be upheld. The appeal, therefore, is allowed with all costs tip to date.


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