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V. Palaniappa Chettiar Vs. P. Vaidyanatha Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)1MLJ327
AppellantV. Palaniappa Chettiar; P. Vaidyanatha Ayyar
RespondentP. Vaidyanatha Iyer and ors.;v. Palaniappa Chettiar and anr.
Cases ReferredRaj v. Gangaram
Excerpt:
.....or for all future selection depending on whether the acquittal is honourable or otherwise. -- t.n. district police act, 1859. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles..........took place. the matter was dealt with by the learned subordinate judge and later by the learned district judge of coimbatore (east) at erode by his judgment, dated 5th march, 1973. second appeal no. 619 of 1974 has been preferred against a.s. no. 38 of 1972 which itself was an appeal preferred by the first defendant in the suit. second appeal no. 1473 of 1974 has been preferred by the plaintiff against a.s. no. 84 of 1972 preferred by him before the learned district judge. the matter lies within a very narrow compass in both these second appeals.2. in second appeal no. 619 of 1974, out of three objections which the appellant had put forward against fixing a liability on him, one that survives in the second appeal is the objection put forward by the first defendant that a sum.....
Judgment:

M.M. Ismail, J.

1. Both these second appeals arise out of the final decree proceedings in O.S. No. 47 of 1959 on the file of the Court of the Subordinate Judge, Erode. Second Appeal No. 619 of 1974 has been preferred by the first defendant in the suit, while Second Appeal No. 1473 of 1974 has been preferred by the plaintiff in the suit. Though the suit for dissolution of the partnership firm and rendition of accounts was dismissed by the trial Court in the first instance, the lower appellate Court reversed the conclusion on 6th November, 1962 and passed a preliminary decree for dissolution and rendition of accounts and gave detailed directions as to how the accounts should be rendered. The matter came up in second appeals to this Court and I dismissed the second appeals by my judgment dated 4th March, 1968 in Second Appeal Nos. 1700 of 1962 and 121 of 1963, subject to a slight modification in the decree of the lower Appellate Court. It is thereafter final decree proceedings took place. The matter was dealt with by the learned Subordinate Judge and later by the learned District Judge of Coimbatore (East) at Erode by his judgment, dated 5th March, 1973. Second Appeal No. 619 of 1974 has been preferred against A.S. No. 38 of 1972 which itself was an Appeal preferred by the first defendant in the suit. Second Appeal No. 1473 of 1974 has been preferred by the plaintiff against A.S. No. 84 of 1972 preferred by him before the learned District Judge. The matter lies within a very narrow compass in both these second appeals.

2. In Second Appeal No. 619 of 1974, out of three objections which the appellant had put forward against fixing a liability on him, one that survives in the second appeal is the objection put forward by the first defendant that a sum of Rs. 11,166.66 exclusively belongs to him and it should not be taken into account in taking accounts of the partnership firm and that 1/3rd share should not be given to the plaintiff in that amount. His case was that it was earned by him in his individual capacity as an honorarium and that it should be treated as a separate property with no share to the plaintiff. The learned District Judge has rejected this contention. I am not able to appreciate what honorarium a partner can get from the firm and how he can claim that as something earned by him not in his capacity as a partner but something different. In the absence of any facts throwing any light, it must be held that the amount was earned by the first defendant in his capacity as a partner from the partnership firm and, therefore, under the agreement entered into between the parties, the plaintiff was entitled to a 1/3rd share therein. Consequently, Second Appeal No. 619 of 1974 fails and is dismissed.

3. As far as S.A. No. 1473 of 1974 is concerned, two points are urged before me. One is that the learned District Judge had not granted any relief in the final decree against the third defendant-company in respect of the assets of the second defendant in the custody or hands of the third defendant, though a decree has been granted against the second defendant in favour of the plaintiff. For the purpose of understanding this claim, it is necessary to refer to ground No. 5 in the grounds of appeal in A.S. No. 84 of 1972 filed before the lower Appellate Court. In that ground, the contention of the appellant-plaintiff was as follows:

The lower Court has erred in thinking that the 3rd defendant is not liable for the suit claim of the appellant. The observations in para. 10 of the judgment of the lower Court, namely, 'the decree is silent with regard to the liability of the 3rd defendant. There is no justification for directing 3rd defendant to pay a sum to the plaintiff', is not correct. The lower Court ailed to note that at the time of filing of the suit, the 2nd defendant was alive and that the 2nd defendant died during the pendency of the second appeal in the High Court. After the passing of the preliminary decree in the suit, the 3rd defendant company had obtained a transfer of the interest of the deceased 2nd defendant and has been holding the interest of the 2nd defendant and hit legal representatives ever since the date of the transfer. To the extent of the value of the property thus transferred by the heirs of the 2nd defendant to the 3rd defendant-company, the plaintiff will be entitled to recover his decree amount by tracing the property of the 2nd defendant in the hands of the transferee, namely, the 3rd defendant. The lower Court has failed to appreciate this aspect of the case and has rejected the contention of the plaintiff that he is entitled to recover the amount from the property in the custody of the 3rd defendant which rightly belonged to the 2nd defendant at the time of the filing of the suit and therefore liable to answer the claim of the plaintiff. The decree must be made clear on this aspect in addition to the fact that the 2nd defendant is liable to pay the amount covered under the final decree....

4. A perusal of the judgment of the learned District Judge shows that this ground has not been considered at all by him. Consequently, I have no alternative but to send the matter back for consideration of this question.

5. The second point raised that is the appellate-plaintiff is entitled to interest on the amount due to him on taking of accounts from the date of plaint and not from the date of the decree. This point was urged before the Courts below and the learned District Judge rejected this contention following a decision of this Court. However, Mr. R. Gopalaswami iyengar, the learned Counsel for the appellant contends that recently a Bench decision of this Court has held that in such a case the appellant is entitled to interest from the date of plaint itself and not merely from the date of the decree. The judgment relied on by the learned Counsel is reported in Vincent Antony Jabamalai Fernando and Ors. v. S.A. Thomas Fernando alias J.A. Thomas Fernando and Anr. : AIR1978Mad90 . A perusal of that judgment shows that the Bench of this Court has made a distinction between a suit for rendition of accounts of a dissolved firm and a suit for a decree dissolving the firm and rendition of accounts and has pointed out that the decision of the Privy Council in Suleman v. Haji Abdul Latif , would apply to a case where the suit was for the dissolution of a going concern and rendition of accounts, and in such a case the interest would be payable from the date of the decree and that in a case where the suit is for rendition of accounts on the basis that the firm stood dissolved even prior to the institution of the suit, the plaintiff would be entitled to interest from the date of plaint itself and to such a case the decision in Hakim, Raj v. Gangaram (1943) 1 M.L.J. 16 : 56 L.W. 121 : 69 I.A. 172 : A.I.R. 1942 P.C. 61, would apply.

6. In the present case, the suit was one for dissolution of the partnership and for rendition of accounts and the decree of the lower appellate Court is to the effect that the plaintiff was entitled to have the suit partnership dissolved as from the date of the plaint in the suit and therefore this was not a case for rendition of accounts of a firm already dissolved, but a suit for dissolution of the firm and rendition of accounts. Consequently, the appellant is entitled to interest only from the date of the decree as held by the learned District Judge and therefore this point taken by the appellant in the second appeal fails.

7. The result is, S.A. No. 1473 of 1974 is allowed in part and the judgment and decree of the learned District Judge in A.S. No. 82 of 1972 is set aside in part and the first appeal is remanded only for the purpose of enabling the District Judge to consider ground No. 5 extracted above and put forth in the memorandum of grounds of appeal before him and the consideration and final determination of the learned District Judge will be confined only to that point and the learned District Judge will not be entitled to consider any other point. The learned District Judge will dispose of the appeal within one month from the date of the receipt of the records from this Court.

8. There will be no order as to costs in either of the second Appeals.


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