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Mathu Varkey Vs. Pyli Varghese - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberA.S. No. 37 of 1956 (k)
Judge
Reported inAIR1960Ker286
ActsPartnership Act, 1932 - Sections 69(3)
AppellantMathu Varkey;pyli Varghese
RespondentPyli Varghese;mathu Varkey
Appellant Advocate K.K. Mathew, Adv.
Respondent Advocate N.D.P. Nambooripad, Adv.
DispositionAppeal dismissed
Cases ReferredMagan Bchari Lal v. Ram Partap Singh
Excerpt:
- - ' 4. we are satisfied, that on the true interpretation of section 69 (3) (a) of the act, and on the weightof authority, the decree for the taking and rendition of accounts, passed against the appellant, mustbe maintained......735, a full bench of the allahabad high court has held, that in a suit for the dissolution ot a firm, a prayer for the taking of accounts is a surplusage. vivian bose j., as he then was, has accepted this connotation of the term 'dissolution of a firm' in damodhar gulabrao v. khushal laxaman, air 1943 nag 12. this was also the view held by a division bench of the calcutta high court in abdul razaak v. mashiruddin ahmed, air 1959 cal 660. we therefore feel, that we are on firm ground in taking this view.2. granting that a prayer for the dissolution of a firm does not include the taking of accounts, the moment the firm is dissolved by the decree passed in a suit for the dissolution of the firm a second suit 'for account of a dissolved firm' within the meaning of section 69 (3) (a) can.....
Judgment:

Velu Pillai, J.

1. In this appeal, which is directed against a preliminary decree for the dissolution of an unregistered firm and for the taking of accounts relating to it, the only question which was raised on behalf of the defendant-appellant arid which arises for decision, is whether the latter part of the decree can be sustained, under Section 69 of the Indian Partnership Act, 1932, which may be referred to hereafter as the Act, Section 69, Sub-sections (1) and (2) of the Act have created a bar to certain classes of suits relating to an unregistered firm; but Sub-section (3) of Section 69 has provided an exception, the relevant part of which is in these terms:

69 (3) 'The provisions of Sub-section (1) and (2).....shall not affect.....'

(a) 'The enforcement of any rights to sue for the dissolution of a firm or For account of a dissolved firm, or any right Or power to realise the property of a dissolved firm or.....''.

It is a proposition which, we think, can hardly admit of any doubt, that relief by way of dissolution of a firm, must, in addition to a declaration, as to its composition thereby meaning, who its members are and what share is held by each, and as to its breaking up as on a date specified, necessarily include the taking and rendition of accounts between its members; otherwise the concept would be lacking in completeness and reality. Order XX, Rule 15 of the Civil Procedure Code, by prescribing what a decree for the dissolution of a firm should contain, has furnished a definition as to its scope and content, and it is difficult to hold, that while enacting Section 69 (3) (a) of the Act, the legislature did not have before its mind, this provision in the Civil Procedure Code in a chapter dealing with Decrees.

The Lahore High Court has ruled in Jhandu Mal v. Rulia Ram, AIR 1937 Lah 633, that a prayer for the dissolution of a firm is for a four-fold relief, including the relief as to the taking and rendition of accounts between its members, and that Order XX, Rule 15, C. P. C. had been enacted to give effect to it. In Shibba Mal v. Gulab Rai, AIR 1939 All 735, a Full Bench of the Allahabad High Court has held, that in a suit for the dissolution ot a firm, a prayer for the taking of accounts is a surplusage. Vivian Bose J., as he then was, has accepted this connotation of the term 'dissolution of a firm' in Damodhar Gulabrao v. Khushal Laxaman, AIR 1943 Nag 12. This was also the view held by a division bench of the Calcutta High Court in Abdul Razaak v. Mashiruddin Ahmed, AIR 1959 Cal 660. We therefore feel, that we are on firm ground in taking this view.

2. Granting that a prayer for the dissolution of a firm does not include the taking of accounts, the moment the firm is dissolved by the decree passed in a suit for the dissolution of the firm a second suit 'for account of a dissolved firm' within the meaning of Section 69 (3) (a) can be laid. It may perhaps be suggested, that the object underlying Section 69 of the Act was to impose a certain disability on unregistered firm, and this is true to a certain extent; but It is fallacious to argue, that the same object permeates also the exception in Section 69 (3) (a), when the result of giving the restricted meaning to it, would be to encourage multiplicity of suits and to introduce needless technicality in procedure, without any corresponding advantage. A construction which will avoid this result is to be favoured, without doing violence to the language employed in the statute. This consideration too had weighed' with the learned Judges of the Allahabad and Nagpur High Courts in the cases cited above. These, in our opinion are weighty reasons for holding that a prayer for the taking of accounts is implicit in the prayer for the dissolution of a firm, within the meaning of Section 69 (3) (a) of the Act.

3. The only case which has taken a contrary view and to which our attention has been drawn, is Magan Bchari Lal v. Ram Partap Singh, AIR 1939 All 535, decided by a division bench of the Allahabad High Court which was overruled by a Full Bench of that court in AIR 1939 All 735, and so has no value as a precedent; but the learned counsel for the appellant, has adopted the reasoning in that case in support of his contention; we are clear that we cannot accept the reasoning as sound. It was pointed out by the division bench in the case cited, that dissolution of a firm being a topic dealt with in Chapter VI of the Act, there could be no greater right of accounting in a suit for dissolution, than is provided by Section 48 of the Act, which, as the learned Judges interpreted, did not treat the defendant-partner, as an accounting party.

They even laid down, that Order XX, Rule 15 of the Civil Procedure Code must be amended, so as to give effect to the restricted interpretation of Section 69 (3) (a) of the Act, which is a later enactment. They held, that even in a suit for the dissolution of a firm in this restricted sense, an account has to be taken within the limited scope of Section 48, and a receiver can be appointed for the purpose, but only, that the relief for making the defendant an accounting party has to be refused. We are in respectful agreement with the following observations of Vivian Bose, J. in AIR 1943 Nag 12 though not made with specific reference to AIR 1939 All 535 :

'The contention.....that though accounts can bo taken, the defendants are not to be regarded as accounting parties.....is an argument, which Iam not able to follow.'

4. We are satisfied, that on the true interpretation of Section 69 (3) (a) of the Act, and on the weightof authority, the decree for the taking and rendition of accounts, passed against the appellant, mustbe maintained. This appeal is therefore dismissedwith costs.


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