DAYABHAI v. NATWARLAL — 1957 DIGILAW 10 (MP)

ORDER Dixit J. 1. This is an appeal from an order of the Additional District Judge of Indore appointing a receiver in a suit for partnership accounts instituted by respondent no. 1 Natwarlal against the appellant Dayabhai and the respondents Nos. 2 and 3, Chhotabhai and Purushottambhai, 2. The plaintiff's case briefly stated, is that there was a partnership between him and the defendants in motor transport business and in certain other subsidiary businesses, namely, cinema, ginning factory etc., that in the partnership, which commenced in January 1948, he had four annas' share and the remaining twelve annas' share was held by the three defendants, who are brothers; that he contributed his share to the capital investment and it was on account of his efforts, influence and business tact that the motor transport business developed and flourished giving a daily return of about Rs. 2,300; and that the other ventures were not so profitable as the motor transport business, The plaintiff proceeded to say that when he found that the partnership business was not being carried on very efficiently, he wrote to his partners several times to improve the management of the business or to dissolve the partnership and settle the accounts thereof; that the defendants paid no heed to his suggestion; that, therefore, he gave a notice to the defendants on 30th November, 1954 expressing his intention to put an end to the partnership with effect from 15th December 1954 and calling upon them to render and settle accounts and pay to the plaintiff his share of the profits and assets of the business; and that by his reply dated 7th January 1955, the defendant Dayabhai denied that the plaintiff was a partner in the motor transport business, and stated that the plaintiff had rendered only friendly service to the defendant for which the defendants had amply rewarded him by paying a sum of about Rs. 37,455-8-3. The plaintiff has further averred that until 7th January 1955, the defendant Dayabhai had never denied his status as a partner; that, on the other hand, he had introduced him as his partner to several prominent persons; and that the defendant's denial of the partnership was out of selfish motives and in breach of the faith and confidence that the plaintiff had reposed in him. On these allegations, the plaintiff claimed that the partnership stood dissolved as from 15th December 1954 or from such other date as the Court may determine and prayed for a decree for the payment of his share of profits and assets after the taking of the partnership accounts and for the appointment of a receiver in the suit. 3. On the date of the filing of the suit, the plaintiff presented a separate application also under O. 40 R. 1, C.P C. for the appointment of a receiver pending the determination of the suit. Along with this application, the plaintiff filed an affidavit and copies of certain letters exchanged between the parties and other documents. On a perusal of the plaint, the application for the appointment of a receiver and the documents filed by the plaintiff, the learned Additional District Judge came to the conclusion that they prima facie established the fact that the plaintiff was a partner in various concerns referred to in the plaint and in the application; that considering the volume of business of the different concerns, the plaintiff was justified in his apprehension that unless timely steps were taken for the preservation of the accounts of the concerns and the property in suit his object in filing the suit was likely to be defeated; that he might lose not only the property but also the proof of his claim; and that, therefore, it was just and convenient to make an ex-parte order for the appointment of a receiver of the various concerns. Accordingly, the learned Additional District Judge made an ex-parte order on 18 April 1956 appointing Mr. Jhanvar, an Advocate of this Court, as receiver, and directing him to take charge of the motor transport business and continue it under his own management and control and at the same time directing the issue of notices to the defendants to show cause why the order appointing the receiver should not be made at solute. It appears that soon after the making of this order, the defendant Dayabhai intervened and the learned Additional District Judge stayed the operation of the order made by him on 18th April 1956 so as to enable the defendants to say what they wished to in reply to the plaintiff's application for the appointment of a receiver. It appears that soon after the making of this order, the defendant Dayabhai intervened and the learned Additional District Judge stayed the operation of the order made by him on 18th April 1956 so as to enable the defendants to say what they wished to in reply to the plaintiff's application for the appointment of a receiver. At the hearing of the application for the appointment of a receiver, the defendant Chhotabhai, though served, did not appear; the defendant Purushottambhai appeared and admitted that the plaintiff was a partner in the motor transport business. The defendant Dayabhai opposed the appointment of a receiver on the ground that the plaintiff was not a partner in the motor transport business; that therefore, a receiver could not be appointed until the fact of his being a partner was first established; and that the plaintiff had not made any allegation that the partnership property was in danger of being wasted, frittered away or destroyed by the defendants. The defendant Dayabhai also offered to produce before the Court account books of previous years relating to the motor transport business and to leave them in the custody of the Court and also to furnish a security for the satisfaction of such decree which might eventually be passed in the suit. After hearing the parties, the learned Additional District Judge took the view that the correspondence and the documents filed by the plaintiff and which were not denied by the defendant Dayabhai, prima facie showed that the plaintiff was a partner in the motor transport business; that he had been excluded from the management of the business; that the defendant Dayabhai had willfully denied his status as a partner in the motor transport business; and that, therefore, in the circumstances of the case, though the plaintiff had not made specific allegations about loss or damage to partnership property on the part of the defendant, it would be just and convenient to appoint a receiver of the partnership business. Accordingly, the learned Additional District Judge confirmed on 10th May 1956 the order made by him on 18th April 1956 with regard to the appointment of a receiver. He, however, made a modification excluding certain concerns from the operation of the order and appointing the defendant Dayabhai as a joint receiver with Mr. Jhanvar. 4. Mr. Accordingly, the learned Additional District Judge confirmed on 10th May 1956 the order made by him on 18th April 1956 with regard to the appointment of a receiver. He, however, made a modification excluding certain concerns from the operation of the order and appointing the defendant Dayabhai as a joint receiver with Mr. Jhanvar. 4. Mr. Sanghi, learned counsel appearing for the appellant, though at first inclined to argue that as the defendant Dayabhai had denied partnership, a receiver could not be appointed until the existence of partnership was established, later on did not dispute that even without a final determination of the question of the existence of the partnership a receiver could be appointed if it was prima facie established. But he contended that the prima facie existence of a partnership or the denial per se by the defendant of partnership was not sufficient for the appointment of a receiver without any proof of imminent danger to the assets of the partnership. But he contended that the prima facie existence of a partnership or the denial per se by the defendant of partnership was not sufficient for the appointment of a receiver without any proof of imminent danger to the assets of the partnership. It was urged that the jurisdiction to appoint a receiver must not be exercised lightly but must be most cautiously used; that the relief was not one ex debito justiuae but one which is purely within the discretion of the Court; that the power to appoint a receiver was not to be generally exercised as a matter of course; that it was not a reason for allowing an application for the appointment of a receiver on the ground that it could do no harm to appoint a receiver; and that before appointing a receiver the Court must take the whole circumstances of the case into consideration and then decide whether it would be just and convenient to appoint a receiver, In support of this argument and for the purpose of showing under what circumstances and on what grounds the Court should appoint a (sic), learned counsel for the appellant referred me to 'Lindley on Partnership' (eleventh edition) page 651, Woodroffe's "Law relating to Receivers" (fifth edition) pages 28, 90, 94 and 95, paragraph 923 in Halsbury's Laws of England, volume 24 (Hailsham edition) and to the decisions in Peacock vs. Peacock (10 Revised Reports page 138), Sitaram vs. Pannalal ( A.I R. 1957 Nag 1 ), T. Krishnaswami vs. C Thangavelu ( A.I R. 1955 Mad 430 ), and Benoy Krishna Mukerjee vs. Satish Chandra Giri ( A.I R. 1928 Pri Cou 49 ) It was said that in the absence of any allegation by the plaintiff about any misconduct on the part of the defendant or about loss or injury to the partnership property, the learned Additional District Judge should not have gone into the question whether prima facie there existed a partnership and thus pre-judged the question; that in any case the finding of the learned trial Judge that the documents produced by the plaintiff prima facie established the fact that he was a partner in the motor transport business, was not justified; and that the lower Court had not taken the whole circumstances of the case into consideration before coming to the conclusion that in this case it was just and convenient to appoint a receiver. 5. In reply Mr. Chitale, learned counsel for the respondents, argued that a receiver is generally appointed as a matter of course when partnership is already dissolved; that the mere denial by the defendant of the existence of the partnership does not preclude the Court from going into the question whether the plaintiff has made out a prima facie case for the existence of the partnership; that a decision about the prima facie existence of partnership is without prejudice to the final determination of the question; and that the denial of partnership could be a sufficient ground for the appointment of a receiver if the circumstances of the case warrant the appointment. Learned Counsel placed reliance particularly on the observations in 'Lindley on Partnership' at page 650 on the subject of the effect of excluding a partner and on certain observations in Woodroffe's "Law relating to Receivers" at the top of page 118, and the observations in Desai's "Law of Partnership" (second edition) at page 312 "on denial of partnership" with regard to the decision in Peacock vs. Peacock (10 Revised Reports 138), it was said that it was not an authority for the proposition that when the existence of a partnership is in question then in no case a receiver can be appointed until that question is determined. Reliance was also placed on the decision in G. Ramchandrayya vs. Nethi Iswarayya (A.I.R. 1952 Hyd 139) where it has been held that where the documentary evidence prima facie shows the existence of a partnership between the plaintiff and the defendant, and the defendant contends that the plaintiff it not a partner, it would be a strong case for the appointment of a receiver. Learned Counsel proceeded to argue that 0.40 R. I C.P C. confers a discretion on the Court in the matter of the appointment of a receiver; that the Court has power to appoint a receiver of any property "where it appears to the Court to be just and convenient " and that, therefore, this Court should not interfere with the discretion exercised by the lower Court in this case when it has been exercised judicially and when the lower Court has after considering all the circumstances of the case made the appointment of the receiver for the protection of the rights and prevention of the injury to the parties. 6. 6. The precise question raised in this appeal is as to the circumstances and grounds on which a receiver can be appointed in a suit for partnership accounts when the plain tiff alleges dissolution of the partnership and the defendant denies the partnership itself. The question has to be decided with reference to 0. 40 R. 1 C.P C. which defines the power of the Court to appoint a receiver Pendente (sic). This rule assimilates Indian to English practice and the principles of law laid down in numerous English cases furnish a useful guide in the exercise of the power under that rule. Under this rule the Court has the power to appoint a receiver of any property "where it appears to the Court to be just and convenient". It confers a discretion on the Court in the matter of the appointment of a receiver and the only restriction on this discretionary power of the Court is that put by the words "just and convenient". The expression "just and convenient" has been held to mean that the Court should make the appointment of a receiver for the protection of rights or prevention of injury according to legal principles. It does not mean that the Court has the power to appoint a receiver simply because it thinks it convenient to do so. The discretion has to be exercised judicially guided by the circumstances of each particular case. It has been stated in Woodroffe's "Law relating to Receivers" at page 90.-- In the first place, the jurisdiction thus given must not be lightly but most cautiously exercised. The relief is not one ex debit justitia, but one which is purely within the judicial discretion of the Court. The power to appoint a receiver is not to be generally exercised as a matter of course, and is not a reason for allowing an application that it can do no harm to appoint a receiver. The appointment of a receiver is in many cases a matter for the most serious consideration, for the Court by taking possession at the instance of a plaintiff may be doing a wrong, in some cases irreparable, to the defendant. For if the plaintiff should eventually fail in establishing his right the Court may, by its interim interference, have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. For if the plaintiff should eventually fail in establishing his right the Court may, by its interim interference, have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. From this it necessarily follows that the title to the property over which a receiver is sought to be appointed must be prima facie established and that if the defendant, who is in possession of the property, disputes the plaintiff's interest and title to it, the Court will not interfere by appointing a receiver unless a strong prima facie case is made out. 7. Now, in regard to the appointment of a receiver in a partnership suit, the existence of the partnership must first be established. If it is not admitted by the defendant, then the plaintiff must make out a prima facie case showing the existence of the partnership. This, however, does not mean that until the question of the existence of the partnership is finally determined no receiver can be appointed when the partnership is disputed. To say so is to put the matter higher than it is put in 'Lindley on Partnership" at page 651 where it is said that where partnership is disputed "the Court usually declines to appoint a receiver until that question is determined". The word 'usually' is very significant. The mere denial by the defendant of the partnership cannot give him the right to prevent the appointment of a receiver. It has been observed in Woodroffe's "Law relating to Receivers" at page 118. -- To entitle the plaintiff to relief, the partnership must be established either by the admission of the defendant or other competent proof as otherwise the sole property of the defendant might be taken from him, his business broken up, while in the end it might appear that there was no right on the part of the plaintiff even to an account. The burden of proof rests, of course, upon the plaintiff. But it would be opening the door to a great deal of wrong to hold that by simply denying the existence of a partnership a party in possession can secure the rejection of an application. The burden of proof rests, of course, upon the plaintiff. But it would be opening the door to a great deal of wrong to hold that by simply denying the existence of a partnership a party in possession can secure the rejection of an application. In other words, the mere denial by the defendant partner of the existence of a partnership is not sufficient to prevent the appointment when the Court is satisfied from the evidence in support of the application that the partnership relation exists. Earlier it has been remarked in the same book at page 95 that- The appointment of a receiver in limine, therefore, like the granting of a preliminary or interlocutory injunction, is not an ultimate determination of the right or title, and the Court, in passing upon the application, in no manner decides the questions of right involved, nor anticipates its final decision upon the merits of the controversy; the leading idea upon the preliminary application being merely to husband the property or fund in litigation for the benefit of whoever may be determined in the end to be entitled thereto. The decision upon the application for a receiver pendent lite is, therefore, without prejudice to the final decree which the Court may be called upon to make, and the Court expresses no opinion as to the ultimate questions of right involved. And if the plaintiff presents a prima facie case, showing an apparent right or title to the thing in controversy and that there is imminent danger of loss without the intervention of the Court, the relief may be granted without going further into the merits upon the preliminary application. It will thus be seen that where partnership is disputed, the Court must determine whether prima facie the partnership existed and such a decision is without prejudice to the ultimate decision which the Court may make as to the existence or otherwise of the partnership, 8. When the partnership is prima facie established the next question to consider is whether the partnership is dissolved or subsisting. The law on the subject of the appointment of a receiver when the partnership has been or is about to be dissolved and when it is subsisting has been stated in Halsbury's Laws of England (volume 24) in paragraph 923, 'Lindley on Partnership at pages 646 to 651 and in 'Kerr on Receivers' at pages 75 to 81. The law on the subject of the appointment of a receiver when the partnership has been or is about to be dissolved and when it is subsisting has been stated in Halsbury's Laws of England (volume 24) in paragraph 923, 'Lindley on Partnership at pages 646 to 651 and in 'Kerr on Receivers' at pages 75 to 81. Briefly stated, the law is that where the partnership is already dissolved, it is almost a matter of course, though not a matter of right, to appoint a receiver at the instance of a partner. But if the partnership is still subsisting, no receiver will be appointed unless some special grounds for the appointment can be shown such as fraud, or gross misconduct of some kind endangering property; or willful denial of the plaintiff-partner's right, or persistence under the cover of right in conduct endangering the assets. Even though there be no misconduct endangering the partnership assets, the Court will appoint a receiver if the defendant wrongfully excludes his co-partner from the management of the partnership affairs, or contends that the plaintiff is not a partner. In "Lindley on Partnership" it has been observed at page 650:-- Moreover, even although there be no misconduct jeopardizing the partnership assets, the Court will appoint a receiver if the defendant wrongfully excludes his co-partner from the management of the partnership affairs. This doctrine is acted on where the defendant unsuccessfully contends that the plaintiff is not a partner, or that he has no interest in the partnership assets. To the same effect is the statement in Kerr's Law of Receivers at page 80. In Woodroffe's Law relating to Receivers" it has been remarked at page 117:-- There is also a case for a receiver even although there be no misconduct endangering the partnership assets if one partner excludes another partner from the management of the partnership affairs. "The most prominent point" said Lord Eldon in Const vs. Harris (1 Turn & Russ. 469) in which the Court acts in appointing a receiver of a partnership concern is the circumstance of one partner having taken upon himself the power to exclude another partner from as full a share in the management of the partnership as he who assumes that power himself enjoys. 9. 469) in which the Court acts in appointing a receiver of a partnership concern is the circumstance of one partner having taken upon himself the power to exclude another partner from as full a share in the management of the partnership as he who assumes that power himself enjoys. 9. The statement that where the defendant denies that the plaintiff is a partner and claims the whole property himself, a receiver can be appointed even though there is no allegation of misconduct endangering the partnership assets is based also on the decisions in Peacock vs. Peacock (10 R.R 138), Hale vs. Hale (49 E.R 382). In Peacock vs. Peacock, the defendant denied that the plaintiff was a partner. When after investigation it was established that the plaintiff was a partner, a receiver was appointed and there were no allegations of any misconduct endangering the partnership assets. In Hale vs. Hale the plaintiff and the defendant had carried on the business of brewers for many years in partnership. The plaintiff filed a suit for dissolution and the defendant denied the plaintiff's right to any account or relief whatever on the ground that the partnership was illegal. The defendant having thus set the plaintiff at defiance and denied that he was a partner and claimed the whole property himself. Lord Langdale, on that ground alone, appointed a receiver although the plaintiff was only a dormant partner and the defendant's management of the business was in no way complained of. It must be noted that in Hale vs. Hale the receiver was appointed not because of the illegality of the partnership but because of the defendant's denial of the plaintiff's right to the partnership property. This is clear from the observations towards the close of the judgment of the Master of the Rolls in Hale Vs. Hale. He observed: -- The defendant does not devote a very large portion of his time to the business but that may not be necessary: nothing, however, is made out against him as to his management of the property, and, therefore, there is not the least reason, upon the ground of any misconduct, to deprive him of the possession. The reason to deprive him of the possession of the property (if it be a sufficient reason) is, that he claims the whole property for himself by the means which he has set out in his answer. The reason to deprive him of the possession of the property (if it be a sufficient reason) is, that he claims the whole property for himself by the means which he has set out in his answer. This principle was followed in G. Ramchandrayya Vs. Nethi Iswarayya (A I.R 1952 Hyd 139 ) where a receiver was appointed in a case in which the defendant denied the plaintiff's title to the partnership property and excluded him from management and there were no circumstances tending to jeopardize the partnership assets, It is easy to see the reason for the appointment of a receiver in a case where the defendant contends that the plaintiff is not a partner, even though there be no misconduct endangering the partnership assets. The very basis of a partnership contract is the mutual confidence reposed in each other by the parties. The Court is therefore, generally reluctant to appoint a receiver in such a case unless some special ground for its interference is established. The unwillingness of the Court to appoint a receiver in a suit of one partner against another being based on the confidence originally reposed in each other by the parties, that ground disappears when the confidence is shown to be misplaced by the defendant's denial of the plaintiff's status as a partner. There is thus no basis for the contention advanced by Mr. Sanghi, learned counsel appearing for the appellant, that in the case of a disputed partnership it is not enough to establish prima facie the existence of a partnership, but that it is also necessary for the plaintiff to allege misconduct endangering the partnership assets and to establish it before a receiver can be appointed. 10. It is in the light of these principles that the circumstances of this case must be examined and the question whether the order appointing a receiver passed by the learned Additional District Judge on the grounds mentioned therein is sustainable, must be determined. 11. Coming to the facts of the present case, the plaintiff has alleged that he was a partner with the defendants in motor transport business and other subsidiary businesses and that an agreement of partnership was drawn up on a stamp-paper and it was with the defendant Chhotabhai. 11. Coming to the facts of the present case, the plaintiff has alleged that he was a partner with the defendants in motor transport business and other subsidiary businesses and that an agreement of partnership was drawn up on a stamp-paper and it was with the defendant Chhotabhai. He sought the appointment of a receiver on the grounds that the defendants Dayabhai and Chhotabhai were managing the motor transport business and in possession of the accounts thereof; that the defendants had been giving him from time to time sums of money against the share of profits to meet his personal requirements; that they never settled the accounts of partnership at any time after the commencement of the partnership business despite repeated requests and letters of the plaintiff, and did nor even reply to the letters; and that it was in reply to the plaintiff's notice given on 30-11-1954 expressing his intention to dissolve the partnership and asking the defendants to settle accounts of the partnership business; that the defendant denied for the first time on 7th January 1955 the plaintiff's status as a partner. The plaintiff further alleged that the defendants were not allowing him any access to the partnership books of account; that they had excluded him from the management of the business for several years; that the daily earnings from the motor transport business were in the neighborhood of Rs. 2300/-; that the partnership property consisted mostly of moveable property; that he apprehended that if the defendants were allowed to remain in possession of all the partnership assets and to continue to collect the daily receipts they were likely to do away with a large portion of the partnership funds and were also likely to secretly dispose of or otherwise deal with the partnership assets to the detriment of the plaintiff; and that the continued possession of the defendants was likely to lead to waste and damage; of the same. It was on these grounds that the plaintiff claimed that it would be just and convenient to appoint a receiver in the suit. 12. At the hearing of the application for the appointment of a receiver, the defendant Chhotabhai did not appear. Purushottambhai supported the plaintiff in his claim that he was a partner in motor transport business. The defendant Dayabhai denied the partnership with the plaintiff in motor transport business. 12. At the hearing of the application for the appointment of a receiver, the defendant Chhotabhai did not appear. Purushottambhai supported the plaintiff in his claim that he was a partner in motor transport business. The defendant Dayabhai denied the partnership with the plaintiff in motor transport business. The learned Additional District Judge took the view-and I think the right view-that the denial by the defendant Dayabhai of the plaintiff's status as a partner did not preclude him from determining whether on the material placed before him by the plaintiff he had made out a prima facie case for the existence of partnership, and if it was so established, from determining whether there were grounds for the appointment of a receiver. Along with this application for the appointment of a receiver, the plaintiff filed copies of correspondence exchanged between him and the defendants and of some other documents to show that there was a partnership between him and the defendants in motor transport business. This correspondence and the documents were not disputed by the defendant Dayabhai. 13. The learned Additional District Judge considered this material in some detail and on its basis came to the conclusion that it tended to show that the plaintiff was associated with the motor transport business right from its inception; that he was several times called for consultation and help to Barwani by the defendants when negotiations for obtaining a monopoly for the motor transport business from the Barwani Darbar were on; that the plaintiff was deputed to purchase buses in Ahmedabad; that he filed a tender for the purchase of some buses from Ahmedabad municipality; that the defendants sought his help for raising the necessary funds for purchasing the buses and starting the motor transport business; that at the time of the commencement of the business the defendants themselves were not in a position to find the necessary amount for the purchase of the buses; that the plaintiff used to look after Court cases of Motor Transport business; and that the defendants paid to the plaintiff from time to time a total amount of about Rs. 37000/- in the face of the plaintiff's repeated assertion of his being a partner in the motor transport business, and never disputed the plaintiff's partnership until 7th January 1955, when in reply to the plaintiff's notice given in November 1954 expressing his intention to dissolve the partnership and asking the defendants to settle accounts thereof, the defendant Dayabhai denied the plaintiff's status as a partner and said that the amounts that were paid to him by the defendants were as compensation for the friendly services he had rendered in starting the motor transport business. The learned Additional District Judge could not bring himself round to accept this explanation for the payment of a large amount of Rs. 37000/-to the plaintiff. He came to the conclusion that the above circumstances taken together with the fact that the defendants Chhotabhai and Purushottambhai had not contested the plaintiff's status as a partner in the motor transport business and that the defendant had not denied the plaintiff's partnership in other subsidiary businesses, prima facie showed that the plaintiff was a partner in the motor transport business. On an examination of the material on which the learned Additional District Judge reached the conclusion, that he did, about the prima facie existence of a partnership between the plaintiff and the defendants, I see no reason to differ from that conclusion in support of which the learned Additional District Judge has given elaborate and cogent reasons. On behalf of the appellant considerable stress was laid on the fact that the license to run buses on certain routes was obtained in the name of the defendant Dayabhai alone and that in regard to permits to run buses, a petition under Article 226 of the Constitution of India was filed in Madhya Bharat High Court in the name of Dayabhai alone, as indicative of the nonexistence of the partnership alleged by the plaintiff. As to this it is sufficient to say that at present there is no material to explain the circumstances in which permits to run buses on certain routes were obtained in the name of Dayabhai alone on behalf of the company Messrs. Dayabhai and Company. If the permits were in the name of Dayabhai and if he alone applied to the transport authorities for the permits, then there was nothing strange in a petition under Article 226 of the Constitution being filed in his name alone. Dayabhai and Company. If the permits were in the name of Dayabhai and if he alone applied to the transport authorities for the permits, then there was nothing strange in a petition under Article 226 of the Constitution being filed in his name alone. That being so, in the setting of the evidence furnished by the undisputed correspondence filed by the plaintiff, these facts cannot be regarded as necessarily inconsistent with the existence of the alleged partnership and thus decisive of the fact of partnership, It was said that the fact that the plaintiff filed the suit nearly a year after the defendant Dayabhai had denied the plaintiff's partnership in motor transport business was highly significant. For this period of waiting, the plaintiff has given a reasonable explanation and it is that during all this time he was hoping that the defendants would settle the accounts of the partnership business and his claim amicably: Having found that there was prima facie evidence to show that there was a partnership between the plaintiff and the defendants in motor transport business, the learned Additional District Judge then held that though the plaintiff had not established positively any misconduct endangering the assets of partnership yet regard being had to the facts that the defendant had disputed the partnership, that the defendants had excluded him from the management of the business for several years, and that the confidence reposed by the plaintiff in the defendants had disappeared and the defendant Dayabhai had apparently forfeited the confidence, and looking to the nature of partnership business and the extent of daily earnings of the business, it would be just and convenient to appoint a receiver in the case. In these circumstances, he did not regard the defendant Dayabhai's willingness to produce and keep in the Court the account books of past years and to furnish security for the payment to the plaintiff of such amount as may ultimately be found due to him, as sufficient to protect the plaintiff's interest and the partnership assets. In these circumstances, he did not regard the defendant Dayabhai's willingness to produce and keep in the Court the account books of past years and to furnish security for the payment to the plaintiff of such amount as may ultimately be found due to him, as sufficient to protect the plaintiff's interest and the partnership assets. From what has been stated earlier in this order, it cannot be said that in this case where the defendant Dayabhai contends that the plaintiff is not a partner and where the plaintiff has been excluded from the management of the business, a receiver could not be appointed when no misconduct or no danger to the partnership property had been established by the plaintiff. Nor can it be said that the circumstances which the lower Court took into account in making the appointment of a receiver in its discretion are untenable. The contention of the appellant that if he is not allowed to carry on the business, which may eventually be determined to belong to him and not to the plaintiff as the final result of the suit, it may be ruined, has been met by the lower Court by appointing Dayabhai as a joint receiver to carry on the business: 14. The lower Court had full discretion to appoint a receiver in the case. The learned Additional District Judge has made the appointment of the receiver after taking the whole circumstances of the case into consideration. There is, therefore, no ground for interfering with the exercise of that discretion and disturbing the order appointing a receiver. In the result, this appeal fails and is dismissed with costs.