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Md. Khalil Rahaman Vs. Bhagabati Charan Roy - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. Nos. 402 and 403 of 1963
Judge
Reported inAIR1978Cal321
ActsPartnership Act, 1932 - Sections 44, 69(1), 69(3) and 69(4); ;Presidency Small Cause Courts Act, 1882 - Section 19; ;Provincial Small Cause Courts Act, 1887 - Section 15
AppellantMd. Khalil Rahaman
RespondentBhagabati Charan Roy
Appellant AdvocateBidyut Kumar Banerjee, Adv.
Respondent AdvocateSaktinath Mukherjee and ;Debaprosad Mukherjee, Advs.
DispositionAppeals allowed
Cases ReferredKambala Venkanna v. Goteti Veeraraju
Excerpt:
- .....small cause courts act, 1887. in other words, the bar under section 69 does not apply to suits of small causes nature valued at not exceeding rs. 100/-. but when a suit or cross-objection is not cognizable either by the presidency court of small causes or by the small cause court section 69(4)(b) will not apply. section 19(o) mentions that small causes court shall have no jurisdiction in 'suits for dissolution of partnership or for an account of partnership transaction.' similarly, section 15 of the provincial small cause courts act read with the second schedule of the said act bars the cognizance of the small causes court in respect of a suit, (a) for a dissolution of partnership or for the winding up of the business of a partnership after its dissolution, (b) for an account.....
Judgment:

Chittatosh Mookerjee, J.

1. The plaintiff-respondent was a tenant at 5, J. C. Bose Road, P. S. Golabari. According to the Trial Court and the Lower Appellate Court on 27th Aug. 1959, he and the defendant-appellant entered into a partnership agreement. The plaintiff was given 2 annas share of the fish business which was to be carried on under the name and style of M/s. M. K. Rahaman & Company in a portion of the plaintiff's rented room at 5, J. C. Bose Road. The Lower Appellate Court has found that the said partnership agreement was acted upon and from 11th Sept. 1959 the defendant had carried on fish business in the said room. In May, 1960 the defendant obtained a direct tenancy of the room in question from the landlord. The defendant did not pay any money to the plaintiff for his share of the profit of the said partnership business.

2. The plaintiff-respondent for permanent injunction brought a suit to restrain the defendant and his men from entering into the shop-room at 5, J. C. Bose Road and for determination of the sum due to him on account of 2 annas share in the profit of the said business, M/s. M. K. Rahaman & Company. Both the Trial Court and the Lower Appellate Court disbelieved the case of the defendant that the said arrangement between the two parties amounted to sub-letting and that there was really no partnership agreement between them. The appellant has not challenged before me the concurrent finding that the defendant No. 1 and other defendants had entered into a partnership agreement.

3. The learned Munsif, 4th Court, Howrah has decreed the suit in the preliminary form ordering the defendant torender accounts to the plaintiff of the business, M/s. M. K. Rahaman & Company from 1st Dec. 1959 to 15th Dec. 1959. On 31st Dec. 1959 the plaintiff had surrendered his tenancy to the landlord from May, 1960 the defendant became a direct tenant. According to the learned Munsif the partnership business was closed from the above date on which the plaintiff had vacated the premises. The learned Munsif declared that the plaintiff had 2 annas share of the profits, in default of rendition of accounts by the defendant a pleader Commissioner was to be appointed to determine the same. Both the plaintiff and the defendant had vacated the premises. The learned Munsif declared that the plaintiff had 2 annas share of the profits. In default of rendition of accounts by the defendant a pleader Commissioner was to be appointed to determine the same. Both the plaintiff and the defendant had preferred appeals before the Lower Appellate Court. The learned Subordinate Judge, 3rd Court, Howrah dismissed the appeal of the defendant. He allowed the appeal in part of the plaintiff that he found that the partnership in question was never dissolved and the same was still continuing. He modified the judgment and decree of the learned Munsif, Howrah by ordering that the defendant shall render accounts to the plaintiff of the business from llth September, 1959 to 15th May, 1960, the date of the institution of the suit in respect of his 2 annas share of the profits.

4. The defendant has now preferred these two second appeals. The partnership business in question was admittedly not registered under the Indian Partnership Act, 1932. The plaintiff did not pray for dissolution of the partnership in question. Section 69(1) of the Indian Partnership Act, 1932 provides that in case of an unregistered partnership 'no suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or have been a partner in the firm ................' The Lower AppellateCourt held that the suit in question for accounts being valued at Rs. 100/-, the suit was saved by Sub-section (4) (b) of Section 69 of the Indian Partnership Act, In my view, the Lower Appellate Court clearly erred in law in holding that Section 69(1) did not apply to the present suit and that the present suit was covered by Section 69(4)(b) of the said Act, Sub-section (4) (b) ap-plies only to suits and set-offs not exceeding Rs. 100/- in value and which are not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882 or not of a kind specified in Second Schedule to the Provincial Small Cause Courts Act, 1887. In other words, the bar under Section 69 does not apply to suits of small causes nature valued at not exceeding Rs. 100/-. But when a suit or cross-objection is not cognizable either by the Presidency Court of Small Causes or by the Small Cause Court Section 69(4)(b) will not apply. Section 19(o) mentions that Small Causes Court shall have no jurisdiction in 'suits for dissolution of partnership or for an account of partnership transaction.' Similarly, Section 15 of the Provincial Small Cause Courts Act read with the Second Schedule of the said Act bars the cognizance of the Small Causes Court in respect of a suit, (a) for a dissolution of partnership or for the winding up of the business of a partnership after its dissolution, (b) for an account of partnership-transaction and (c) for a balance of partnership-account, unless the balance has been struck by the parties or their agents.

5. The Lower Appellate Court clearly erred in law in overlooking that the present suit for injunction and for accounts of the partnership between the plaintiff and the defendant was not cognizable either by a Court of Small Causes. Therefore, notwithstanding the fact that the relief for accounts had been tentatively valued at Rs. 100/-, the suit was not covered by Section 69(4)(b). Accordingly the suit being hit by Section 69(1) was liable to be dismissed in limini.

6. Mr. Mukherjee, learned advocatefor the respondent, submitted before methat the plaint of the suit contained animplicit prayer for dissolution of thepartnership. I have perused the plaintof the suit but I find that the plaintiffdid not either expressly or impliedlypray for dissolution of the partnership.The defendant had pleaded that the suitwas hit by Section 69(1) of the PartnershipAct. Either in the Trial Court or in theLower Appellate Court the plaintiff didnot take the stand that the plaintiff contained an implied prayer for dissolution.He did not also apply for amendment ofthe plaint to include a prayer for dissolution. The provisions of Section 44of the Partnership Act cannot assistthe plaintiff-respondent becausethe plaintiff did not pray for appropriaterelief before the Court and the Court had no occasion to consider whether the firm should be dissolved on any one of the grounds enumerated therein. The plaintiff-appellant did not urge either before the Lower Appellate Court or in this second appeal that the firm had already been dissolved and therefore Section 69(3)(a) applied to his case.

7. The decision of Dalip Singh J. in Shib Bam v. Chinta Har, AIR 1933 Lah 1032, has no manner of application to the facts of the present case. In the said case the Court found that in the circumstances of the said case the plaintiff was entitled to bring a suit for accounts without a prayer for dissolution. But the defendant had asked for dissolution of partnership. The Trial Court had, therefore, passed a preliminary decree for dissolution of the partnership and for accounts. Dalip Singh J. held that such dissolution was rightly granted on the prayer of the defendant. In this case, neither the plaintiff nor the defendant prayed for dissolution and no decree for dissolution has been passed.

8. The learned advocate for the respondent has also relied upon the decision of G. K. Mitter, J. (as he then was) in Subodh K. Chatterjee v. Union of India : AIR1960Cal540 . In the said case, the learned Judge allowed an application for amendment of the plaint in order to plead that a notice under Section 80 of the Code of Civil Procedure was served within the original jurisdiction of this Court and thereby establish that at least a part of the cause of action in the suit had arisen within the jurisdiction of this Court and as such the Court was competent to try the suit. The learned Judge held that Order 7, Rules 10 and 11 of the Civil P. C. did not apply to chartered High Courts. Therefore, the amendment should be allowed. The observations of G. K. Mitter J. in Subodh K. Chatterjee v. Union of India (supra); accordingly have relevance for the decision of the present case. The plaintiff-respondent has not actually filed any application for amendment of the plaint in order to incorporate a prayer for dissolution of the partnership. Therefore, I am not really called upon to decide whether at this stage the plaintiff should be allowed to amend the plaint. According to the decision of the Madras High Court reported in Kambala Venkanna v. Goteti Veeraraju, AIR 1936 Mad 910 where during the pendency of a suit broughtby an unregistered partnership firm, the firm was registered and a prayer for amendment of the plaint and to treat the suit having been instituted on the date of the application for amendment was made, the Court held that the amendment could not be allowed.

9. For the foregoing reasons I hold that the suit out of which these second appeals arise were liable to be dismissed as not maintainable in law. Therefore, there could be no decision on merits.

10. I, accordingly allow these appeals, set aside the judgments and decrees of the Trial Court and the Lower Appellate Court and dismiss the suit brought by the plaintiff-respondent only on the ground that the same was barred under Section 69(1) of the Indian Partnership Act. This decision will not preclude either of the parties from filing a fresh suit for appropriate reliefs.

11. Each party will bear his own costs throughout.


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