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Madanmohan Sharma Vs. Uttam Singh Bagga - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberL.P.A. No. 8 of 1976
Judge
Reported inAIR1985J& K87
ActsJammu and Kashmir Court-fees Act, 1977 Smvt. - Sections 7, 11 and 17; ;Jammu and Kashmir Suits Valuation Act, 1977 Smvt. - Section 8; ;Partnership Act, 1932 - Section 48
AppellantMadanmohan Sharma
RespondentUttam Singh Bagga
Advocates: T.S. Thakur, Adv.
DispositionAppeal dismissed
Cases ReferredPt. Lok Nath v. Pt. Bhagwan Dass
Excerpt:
- .....the learned single judge (anand 1, as his lordship then was), are not correct in law and in such suits plaintiff can fix separate valuation in terms of s, 17 of the court-fee act. according to him the mode in which valuation is put in the plaint is correct and in accordance with law. he has submitted that there is no provision in the court-fees act which prescribes payment of court-fee for a suit for dissolution of partnership. therefore, the plaintiff is at liberty to fix the valuation for purposes of jurisdiction and court-fee as regards relief of dissolution under article 17(b) schedule ii of the court-fees act. section 7(iv)(i) of the court-fees act would govern only suits relating to accounts, therefore, the valuation is to befixed separately for two reliefs as the two reliefs are.....
Judgment:

Bhat, J.

1. In this Letters Patent Appeal a short question is involved : The question relates to valuation and payment of Court-fee in a suit for dissolution of partnership and rendition of accounts. The question has arisen in the following manner.

2. The plaintiff brought a suit for dissolution of partnership and rendition of accounts against the defendant and has valued the suit for purposes of jurisdiction for dissolution of partnership at Rs. 55,000/- and has paid a fixed court-fee of Rs. 12-50. For the relief of rendition of accounts, he has valued the suit for the purpose of court-fee and jurisdiction at Rs. 130/-. An objection was raised by the defendant that the valuation put by the plaintiff was not correct, which gave rise to an issue 'whether the value of the suit for the purpose of Court-fee and jurisdiction is properly fixed.' Learned counsel for the appellant has argued before us that the findings of the learned single Judge (Anand 1, as his Lordship then was), are not correct in law and in such suits plaintiff can fix separate valuation in terms of S, 17 of the Court-fee Act. According to him the mode in which valuation is put in the plaint is correct and in accordance with law. He has submitted that there is no provision in the Court-fees Act which prescribes payment of court-fee for a suit for dissolution of partnership. Therefore, the plaintiff is at liberty to fix the valuation for purposes of jurisdiction and court-fee as regards relief of dissolution under Article 17(b) Schedule II of the Court-fees Act. Section 7(IV)(i) of the Court-fees Act would govern only suits relating to accounts, therefore, the valuation is to befixed separately for two reliefs as the two reliefs are not interdependent It is submitted that asuit for dissolution of partnership would not automatically become a suit for accounts unless dissolution of partnership is granted by the court because there has been no dissolution of partnership outside the court between the parties. Dissolution is sought through the intervention of the Court, therefore, the court has to declare dissolution of partnership first and rendition of accounts is a continuing partnership. For rendition o f accounts it is not necessary that the firm must be first dissolved, a continuing partner has a right to claim accounts from the other partners. In this view of the matter, he assails the judgment and seeks its reconsideration.

3. Learned single Judge has relied on an authority of Madras High Court Jaldu Manikyala Rao v. Jaldu Pyadayya AIR 1943 Mad 639. This authority presupposes that in a suit for dissolution of partnership at will and accounts the partnership between the parties is dissolved on the date of presentation of the plaint. Therefore the suit for dissolution of partnership becomes a suit for accounts the moment the plaint is presented in the court and in that view of the matter court-fees on such suits shall have to be paid Under Section 7(IV)(f) of the Court-fees Act. This authority in turn has relied on a Bombay authority, viz : Bhogi Lal v. Popat Bhai (1883) 1LR7 Bom 125. Learned counsel for the appellant has tried to distinguish this authority and submitted that with the presentation of the plaint in the court partnership does not get dissolved ipso facto unless the plaint is served on the defendant. Nobody has appeared on behalf of the 1 respondent and we have heard the learned counsel for the appellant at length and gone through the record.

4. Admittedly the partnership between the parties to the suit is at will as is revealed by a copy of the partnership deed placed on the record. A partnership at will can be dissolved I by issuance of a notice also. It can be dissolved outside the Court or through the intervention of the Court If it is to be dissolved outside the Court recourse to Sections 42 and 43 of the Partnership Act is to be had. If intervention of the Court is sought then Section 44 of the Partnership Act is to be invoked. In case intervention ofthe Court is sought the moment the plaint is served on the defendant or the summons is served on him as regards the suit, that will be notice to him for dissolution of the partnership and what survives then is the claim as regards the accounts and assets of the partnership, The Court in such a suit has of necessity to proceed in accordance with the procedure laid down Under Section 48 of the Partnership Act if the plaintiffs claim is found genuine about the existence of the partnership and if the partnership is really in existence. A suit for dissolution of partnership in essence, therefore, is a suit for rendition of accounts and winding up of the partnership after distributing of the assets of the firm between the partners now is to be ordered. Learned counsel for the appellant also has conceded that with the service of summons and a copy of the plaint on the defendant the partnership at will is deemed to be dissolved and it will be deemed that the partner intending to dissolve the partnership has served a notice for dissolution of partnership against the other partner by instituting the suit and by delivering him the summons and the plaint because the plaint discloses the intention of the plaintiff to dissolve the partnership and the moment his intention is known to the other partner, partnership at will will come to an end but the inter se liabilities of the partners as regards sharing of assets, rendition of accounts is to be determined by the Court. Therefore, the only thing that survives is taking of account and nothing beyond that. It is also incorrect, as suggested by the learned counsel for the appellant, that the defendants have refused to dissolve the partnership, therefore declaration of the Court is necessary in this behalf. This argument can be answered by referring to a Supreme Court authority viz : Neelavathi v. N. Natarajan, AIR 1980 SC691. The Supreme Court has observed as under : --

'It is settled law that the question of Court-fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole.'

Therefore, we cannot look into the written statement to ascertain as to what must be the valuation of the suit and what is the defenceput forth by the defendant. The plaintiff has claimed dissolution of the partnership and rendition of accounts. The defendant has been Informed about the intentions of the plaintiff. Therefore, partnership at will comes to an end, the only thing which remains to be settled now is the question relating to distribution of assets and rendition of accounts in terms of Section 48 of the Partnership Act. Therefore, in essence the present suit is a suit for accounts and is to be valued as such for the purposes of Court-fee and jurisdiction and ad valorem Court-fee shall have to be paid, the valuation for purposes of jurisdiction and Court-fee is to be the same.

5. Section 17 of the Court-fees Act would not help the appellant. The section presupposes that if a suit embraces two or more distinct subjects, the plaint or memorandum of appeal is to be charged with an aggregate amount of fees which the plaint or memorandum of appeal in suits embraces separately, each of such subject would be liable under the Act The proposition laid down in Section 17 would not apply to the present suit. The present suit does not embrace two distinct subjects. The subject involved in the plaint is one. The rendition of account is to flow from dissolution of partnership. Consequences of dissolution of partnership is that partners are liable to account to each other and Section 48 of the Partnership Act gets attracted at once. The subject matter of the suit, therefore, is one and integrated in such a manner that it cannot be separated and held to be distinct from each other. Therefore, Section 17 of the Courtfees Act has no application as regards computation of the Court-fee in a suit of present nature. Of course in a suit for dissolution of partnership and renditon of accounts the plaintiff is at liberty to value the suit for purposes of jurisdiction and Court-fee at his own option. He can give tentative valuation because at the time of valuation of the suit he is not in a position to know as to how much amount will be found due to him after taking the accounts. Full Court-fee shall have to be paid on the amount which ultimately will be granted to the plaintiff and he shall have to pay the balance Court-fee in terms of Section 11 of the Court-fees Act at the time of execution of the decree. It is the value fixed for the purposes of Court-fee which will determine the jurisdictional value of the suit.

At any rate value for jurisdiction and payment of Court-fee is to be the same and ad valorem Court-fee is to be paid. The same view was expressed by this Court in a single Bench case viz : Pt. Lok Nath v. Pt. Bhagwan Dass 1980 Kash LJ 399. In that case it has been held as follows : --

'....It is the value of relief claimed which governs the jurisdiction and not any other valuation and in a suit for accounts and dissolution, it is not open to the plaintiff to fix valuation for jurisdictional purpose for the relief of dissolution of the partnership different than the value, for purposes, of jurisdiction, for the relief of rendition of accounts.'

Therefore, there is no scope to take a different view because that will be contrary to the Court-fees Act as also to the settled practice of this Court.

6. That brings us to Section 8 of the Suits Valuation Act. It postulates as under : --

'Where in suits other than those referred to in the Court-fees Act, Section 7 paragraphs v, vi and ix and para x Clause (d) Court-fees are payable ad valorem under the Court-fees Act, the value as determinate for the computation of Court-fees and the value for purposes of jurisdiction shall be the same.'

Therefore, it is clear that except in the suits mentioned in the section in all other suits value for purposes of Court-fee and jurisdiction shall be the same and the Court-fee is payable ad valorem under the Court-fees Act. In regard to suits for dissolution of partnership and accounts Court-fee is to be paid Under Section 7(iv)(f) and it is to be paid according to the amount at which the relief sought is valued in the plaint.

7. We are, therefore, in respectful agreement with the findings arrived at by the learned single Judge. There is no error of law as suggested by the learned counsel for the petitioner in the said order and it does not warrant any interference. The appeal therefore, fails and is dismissed accordingly. The respondent did not appear, therefore, we make no order as to costs.


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