Judgement Appeal from a judgment and decree of the High Court (Septem ber 8, 1914) varying a decree of Macleod J. (March 28, 1914). The suit was instituted in the High Court by the Nawab Kamal Khan (now represented by the appellants) for a decree that a partnership between himself and the respondents, constituted by an agreement dated March 11, 1908, be dissolved, and for accounts. The facts appear from the judgment of their Lordships. Macleod J. found that the partnership business could only be carried on at a loss ; he decreed a dissolution from the date of the institution of the suit and made certain declarations as to the effect of the agreement as to the respective rights upon taking the accounts. The present respondents appealed and the appellants cross-appealed. Sir Basil Scott C. J. and Davar J. varied the decree. They held that the plaintiff was not entitled to sue for a dissolution of the partnership at the date of the institution of the suit, nor until the completion of the construction of the works, since the partnership agreement provided that the partnership should continue until that event. The works, however, being completed at the date of the decree, the partnership accounts were ordered; the decree of Macleod J. as to the respective rights of the parties was also varied. 1917. Nov. 13, 15. (The arguments as to the right to a dissolution are alone reported.) Upjohn, K.C., and Sir William Garth, for the appellants. It was proved that the business could not be carried on at a profit and the trial judge had a discretion under s. 254, sub-s. 6, of the Indian Contract Act, 1872, to order a dissolution. That discretion was not taken away by the agreement of the parties Lindley on Partnership, 8th ed., p. 658. In Cowasjee Nanabhoy v. Lallbhoy Vullubhoy (( 1876) L. R, 3 I. A. 200.) the Board held merely that the partners might by their agreement renounce the right to a dissolution. There was nothing in the conduct of the Nawab which disentitled him to the equitable assistance of the Court and the discretion was properly exercised. P. O. Lawrence, K.C., De Gruyther, K.C., and E. B. Raikes, for the respondents. There was nothing in the conduct of the Nawab which disentitled him to the equitable assistance of the Court and the discretion was properly exercised. P. O. Lawrence, K.C., De Gruyther, K.C., and E. B. Raikes, for the respondents. The Court had not a discretionary power under s. 254, sub-s. (6) to dissolve the partnership since the evidence did not show that the business could not be carried on at a profit. In any case, having regard to the circumstances in which the partnership was entered into, it would be inequitable to the respondents to decree a dissolution before the completion of the works. Upjohn, K.C., in reply. Dec. 13. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. This is an appeal from a decree of the High Court at Bombay in its appellate jurisdiction, dated September 8, 1914, varying a decree of that Court in its original jurisdiction passed on March 28, 1914. The suit is for a dissolution of partnership. The original plaintiff was Nawab Kamal Khan, but he has died in the course of the suit and the present appellants are his representatives. The defendants, his partners, are the respondents in this appeal. The partnership was constituted on March 11, 1908, and its terms are contained in an instrument of that date, To appreciate its purpose and legal effect it will be convenient to describe briefly the events that led up to its execution. The defen dants, a firm of contractors, had undertaken the construction of the New Alexandra Dock in the island of Bombay, and they required for the work a large supply of granite and other stone. They accordingly made two contracts in 1906 for this supply, and in both of them the Nawab was either directly or indirectly interested. For reasons which need not be discussed, the supply of granite and stone under these contracts was so unsatisfactory that the defendants manager complained, and declared that he would be compelled to look elsewhere if he could not get delivery according to contract. In the end an arrangement was made for cancellation of the two contracts and the release of all claims for their breach by the Nawab and those interested with him, and for the formation of a new partnership between the Nawab and the defendants for the quarrying and supply of the requisite granite and other stone. In the end an arrangement was made for cancellation of the two contracts and the release of all claims for their breach by the Nawab and those interested with him, and for the formation of a new partnership between the Nawab and the defendants for the quarrying and supply of the requisite granite and other stone. The defendants insisted that the Nawab should be a sleeping partner without any voice in the control and conduct of the business, so his advisers naturally demanded the insertion in the partnership instrument of a provision which would secure him against the risk of extravagant working. To this the defendants assented, and a clause was inserted which ultimately became the 25th in the instrument as executed. It is this clause that has given rise to much of the present dispute. In the instrument, which is expressed to be made between the Nawab of the one part and the defendants (thereinafter called the contractors) of the other part, after a narrative of the events leading up to the partnership, it is recited that " for the purpose of carrying out the said terms and conditions and of working the said quarries and producing stone and granite therefrom, and rendering the said quarries remunerative and profitable to the parties thereto, and in consideration of the advances to be made by the contractors," it had been arranged that the agreement should be entered into. The instrument then provided that the Nawab and the defendants should be interested in the working of the quarries at Lingampalli and Dharur, and should share the profits and losses half and half (clause 1); that the granite and stone produced from the quarries should be furnished to the defendants for their works at the dock in accordance with their requirements and sent, delivered, and paid for as therein provided (clause 3); that the working of the quarries and the partnership should continue until the supply of granite or other stone for the construction of the docks was completed, and that the partnership should then terminate and be wound up (clause 4); that the expenditure incurred in managing and supervising the quarries should not exceed the proportion of 10 per cent, on the cost of the work, including all charges (clause 17); that the royalty should be one of the expenses of working the quarries, to be defrayed out of the partnership funds or the income earned (clause 22); and (clause 25) " that the average rate of expense per cubic foot at which the stone has hitherto been quarried, exclusive of management and superintendence, shall not be exceeded in future except under extraordinary circumstances, when the rate of expense may be increased by 10 per cent." The work contemplated by the partnership was carried on, but with the one unvarying result of annual loss, which amounted to upwards of three lakhs of rupees on June 30, 1910. In these circumstances the present suit was instituted in October, 1912, praying for a dissolution on the ground that the business of the partnership had been, and only could be, carried on at a loss. In the plaint extravagant charges of fraud were made, but they have been abandoned. While groundless charges of this type are to be deprecated, and may well attract the consequence of an adverse order as to costs, their Lordships cannot accede to the suggestion, somewhat faintly made, that the Nawab had by these charges forfeited his right to the protection of the Court if he otherwise had a good cause of action. While groundless charges of this type are to be deprecated, and may well attract the consequence of an adverse order as to costs, their Lordships cannot accede to the suggestion, somewhat faintly made, that the Nawab had by these charges forfeited his right to the protection of the Court if he otherwise had a good cause of action. The matters now in contest are (1.) whether the suit is premature ; (2.) what is the " average rate of expense " mentioned in clause 25 of the partnership instrument; and (3.) have there been " extraordinary circumstances " within the meaning of that clause? The Court of first instance decided in the Nawabs favour on the first and second of these points, and adversely to him on the third The appellate Benchs decision was wholly adverse to the Nawab, but as the work on the docks had been completed before the hearing of the appeal, the Court directed that partnership accounts should be taken from March 11, 1908, up to the end of the construction work of the docks. The Court of Appeals decision that the Nawab when he filed his suit was not entitled to claim a dissolution was based on the continuance of the partnership involved in the terms of the partnership agreement and on s. 252 of the Indian Contract Act. And the Court proceeded to express the opinion that, even if it had jurisdiction, it would have refused to declare the partnership dissolved at any period earlier than the completion of the work. The first and the more extreme of these propositions was not seriously pressed in argument before this Board, nor indeed could it be. It is beyond controversy that at the institution of this suit the business of the partnership could only be carried on at a loss. This is conclusively shown by the firms balance-sheets, the profit and loss account for the period from March 1, 1908, to June 30, 1912, and the admission in the defendants written statement. The condition described in s. 254, sub-s. 6, of the Indian Contract Act, 1872, is thus established, and it is provided that in this event the Court may, at the suit of a partner, dissolve the partnership. The condition described in s. 254, sub-s. 6, of the Indian Contract Act, 1872, is thus established, and it is provided that in this event the Court may, at the suit of a partner, dissolve the partnership. What, then, is there in the circumstances of this case to deprive the Court of its jurisdiction or the plaintiff of his right to seek the Courts assistance ? Their Lordships are unable to agree with the High Courts view that there is anything in s. 252 that constitutes a bar ; it appears to them to be directed to something wholly different. A partners claim to a decree for dissolution rests, in its origin, not on contract, but on his inherent right to invoke the Courts protection on equitable grounds, in spite of the terms in which the rights and obligations of the partners may have been regulated and defined by the partnership contract. It was not, therefore, any contravention of that section for the plaintiff to seek a dissolution or for the Court to decree it though the partnership agreement contemplated the continuance of the partnership beyond the date at which the suit was instituted. No man can exclude himself from the protection of the Courts, and yet, if the view of the appellate Bench is to prevail, this is what the Nawab has done, for a decree for dissolution would be the protection appropriate in the circumstances of this case. It is no answer to say that this partnership was not terminable at will; it is to meet that precise predicament that the Courts power to decree dissolution is conferred in the events enumerated in s. 254. For a partnership terminable at will no such provision would be required. Their Lordships therefore are unable to affirm the decision of the appellate Bench as to the competence of the suit. But this leaves open the question whether the Courts discretion should be exercised for or against the Nawabs claim. The appellate Bench decided adversely to it, and it was urged in argument against interference with this decision that it is opposed to sound practice for an appellate Court to substitute its discretion for that of the Court from which an appeal has been preferred. The justice of this argument is undoubted, but it was at least as relevant before the appellate Bench as it is before this Board. The justice of this argument is undoubted, but it was at least as relevant before the appellate Bench as it is before this Board. And yet the appellate Bench did not hesitate to express its readiness to substitute its discretion for that of the original Court, although in the view it took of the Courts jurisdiction the question could not arise. In these circumstances the real question is whether there was or is any justification for questioning or disturbing the discretion exercised by the original Court when it passed the decree for dissolution in the Nawabs favour. It cannot be said that the Court acted capriciously or in disregard of any legal principle in this exercise of its discretion. On the contrary, there are elements in the case which can fairly be regarded as ample warrant for the first Courts decision, and for this it is enough to point to the dual position of the defendants, which brought their interests as contractors into sharp conflict with their duties as partners of the Nawab, and also to the prominence given in the recital to the common purpose that the quarries should be remunerative and profitable to the partners. Their Lordships therefore hold that there is no sufficient ground for disturbing the original decree so far as it pronounced for a dissolution. [Their Lordships judgment then dealt with the questions as to the " average rate of expense " and " exceptional circumstances " under clause 25, and upon the evidence agreed with the judgment of the appellate Bench, and concluded as follows ] Their Lordships will accordingly humbly advise His Majesty to allow this appeal and to direct that the decree of the Appeal Court should be set aside and that of the original Court restored, with the variations following (1) .... Their Lordships recommend an order in the above form, as they do not wish to interfere with the discretion exercised by the original Court in its direction as to costs and, as to the costs of this appeal and the appeal to the High Court, they will recommend that there be no order save that each party bear his own.