J. D. JAIN ( 1 ) THE plaintiff and defendants 1 to 6 are carrying OB the business of motor- vehicles, jeeps and accessories etc. in partnership under the name and style of M/s. Sanghi Motors (defendant No. 7) under a deed of partnership dated 1st Jan. , 1971. The plaintiff Shri Suresh Kumar Sanghi and defendants 5 and 6 S/shri Satish Chander Sanghi and Sharad Kumar Sanghi are leal brothers. S/shri Amrit Kurnai Sanghi, Rattan Kumar Sanghi aid Mahendia Kumal Sanghi defendants 1 to 3 are also real brothers and are first cousins of the plaintiff. Shri Ashok Kumar Sanghi defendant No. 4 is a nephew of the plaintiff and other defendants, being son of Shri Naiendia Kumar Sanghi, who is their cousin brother. The plaintiff and defendants 5 and 6 have 50% share in the partnership business while defendants 1 to 4 own the remaining 50% share. As at present, they have got a franchise/ dealership of M/s. Mahindra aad Mahindra Ltd. , Bombay for the distribution and sale of jeeps and F. C. trucks for the areas of Union Tetritory of Delhi, Chandigarh, Haryafla and Punjab with Head Office at Delhi. The plaintiff was appointed as a Managing Partner by all the partners of the aforesaid firm and he has been managing and looking after the affairs of the firm as such since its inception. It may be pertinent to add here that the said firm had been in existence as a partnership concern even earlier since 1962 and various partnership deeds between different members of the Sanghi Family (as I would like to describe them collectively) were executed from time to time. Thus, it would appear that the present firm was only reconstituted in the year 1971. ( 2 ) SOME differences and disputes having arisen between the parties, the group led by Shri Amrit Kumar Sanghi-defendant No. 1 (called Amrit Group for the sake of convenience) wrote a letter to their principals M/s. Mahindra and Mahindra Ltd. on 30th August, 1979 requesting them to suspend supplies of motor-vehicles and parts to the partnership firm till the disputes and differences between them and the other group led by Shri Sureah Kumar Singhi (called Suresh Group for the sake of convenience) were sorted out. He, inter alia, stated that on account of serious lapses on the part of the plaintiff it had become impossible to conduct the business of the firm and with great reluctance they were compelled to close the working of the dealership operations till the matters were sorted out. The Amrit Group also addressed a letter to the Bank of Rajasthan Limited who were bankers to the partnership firm on 28th Aug. , 1979, not to honour any cheque issued by any partners in the firm s account until further intimation from them. They further requested that the authority to operate the account by any of the partners jointly or severally be suspended. At about the same time, the plaintiff instituted a suit, being Suit No. 1034 A/79, in this Court. However, some kind of settlement (termed "package deal" by the defendants) took place between the parties on 21st Sept. , 1979 and the partnership business was resumed and carried on smoothly for sometime thereafter. ( 3 ) THE plaintiff has now instituted this suit for permanent injunction restraining defendants 1 to 4 from writing any letter or sending any communication to the Bank of Rajasthan for getting the bank operation of the partnership accounts with the said Bank closed or suspended and also from writing any letter or sending any communication to M/s. Mahindra and Mahindra Ltd. for the purpose of getting the dealership terminated or supplies of jeeps and F. C. trucks stopped/ suspended to the partnership film. He has further prayed that the defendants be restrained from acting in any manner which may be prejudicial or adversely affect the interest of the partnership business. It is contended that Amrit Group has again started putting obstructions in the smooth working of the partnership firm with the sole motive/intention to get the dealership rights of M/s. Mahindra and Mahindra Limited which is a coveted franchise/dealership terminated and the partnership business closed so that they can manipulate 01 manoeuvre thereafter grant of the aforesaid franchise/ dealership rights to themselves to the exclusion of the plaintiff. He has averred that the partnership firm had been granted cash credit facility to the tune of Rs. 18,00,000. 00 (rupees eighteen lakhs) by their bankers but on account of increase in the prices of vehicles by the principals, he sought the limit to be raised to Rs. 21,00,000. He has averred that the partnership firm had been granted cash credit facility to the tune of Rs. 18,00,000. 00 (rupees eighteen lakhs) by their bankers but on account of increase in the prices of vehicles by the principals, he sought the limit to be raised to Rs. 21,00,000. 00 (rupees twenty- one lakhs) for smooth working of the partnership business and he requested the Amrit Group to sign the relevant documents comprising, inter alia, the pronotes, letter of hypothecation which were required by the Banker. However, without assigning any reason whatsoever they have refused to do so and they even threatened that they would stop the bank operation altogether by intimating the Bank accordingly. Similarly, they threatened to write letter to their principals M/s. Mahindra and Mahindra Limited with a request to terminate the dealership of the partnership firm for the supply and distribution of jeeps and F. C. trucks manufactured by them. It is urged that the aforesaid acts and threats of defendants 1 to 4 are violative of mutual good faith of the partners and are highly prejudicial and detrimental to the partnership business. It is pointed out that it is contractual as well as statutory obligation of the partners to observe good faith and to act in furtherance and advancement of the interest and the business of the partnership firm and not to jeopardise the same in any manner whatsoever. This conduct OB the part of the defendants has been characterised as malicious and wilful. ( 4 ) DEFENDANTS 1 to 3 have put in contest, Their contention is that the plaintiff himself is to blame for malfunctioning and misfeasance of the partnership business. They have accused him of breach of trust which had been reposed in him by the defendants in performance of his duties as managing partner of the firm and have asserted tnat he has been acting in amanner prejudicial and detrimental to the partnership firm. in particular, it is contended that the plaintiff has started two business units of his own in the name of M/s- Sanghi Aviation and Sanghi Travels and he has been purporting to himself or his associates therein all the income but he has been burdening the partnership firm (defendant No. 7) with major expenses of the said two units. in particular, it is contended that the plaintiff has started two business units of his own in the name of M/s- Sanghi Aviation and Sanghi Travels and he has been purporting to himself or his associates therein all the income but he has been burdening the partnership firm (defendant No. 7) with major expenses of the said two units. Further, the plaintiff has started another business under the name and style of Raj Internation Private Limited to the premises of the firm M/s. Sanghi Motors at Jhandewalan, New Delhi and substantial expenses of the said business, for instance, telephone, staff, vehicles etc. were also loaded on/passed on by the plaintiff on M/s. Sanghi Motors. They have adverted to some other acts of misfeasance/non-feasance on the part of the plaintiff in conducting the business affairs of the partnership firm. While admitting that they had written letter dated 28th Aug. , 1979 to Bank of Rajasthan Ltd. for suspending the operation of the bank accounts of the partnership firm and letter dated 30th Aug. , 1979 to M/s. Mahindra and Mahindra Ltd. for temporarily responding the supply of motor-vehicles on account of differences which had cropped up between the two Groups, they have averred that eventually an agreement as a "package deal" emerged between them on 21st Sept. , 1979 and it was aimed at resolving of their differences and disputes in relation to all joint businesses of the two Groups amicably. They have pointed out that another business concern in which both the groups have 50% share each is styled M/s. Supreme Motors Limited and is carrying business in motor- vehicle at B-13/3, Asaf Ali Road. The said company became a deemed to be Limited Company by virtue of S. 43 (1-A) of the Companies Act even though it was a Private Limited Company to begin with. However, the shareholding of the two Groups remained the same and in the same proportion. The business of Supreme Motors Ltd. has also been looked after and carried on by Sari Amrit Kumar Sanghi defendant No. 1, who has been working as its Managing Director while the plaintiff has been working as the Managing Partner of the partnership firm (defendant No. 7 ). Some disputes arose between the parties with regard to the business of M/s. Supreme Motors Ltd. also and the plaintiff filed an application, being Company Petition No. 73/80, on 5th Aug. Some disputes arose between the parties with regard to the business of M/s. Supreme Motors Ltd. also and the plaintiff filed an application, being Company Petition No. 73/80, on 5th Aug. , 1980, titled Suresh Kumar Sanghi V. Supreme Motors under Ss. 397, 398, 402 and 403 of the Companies Act and prayed for appointment of a committee of management with independent chairman with power of veto in place of the existing Board of Directors and he also prayed for removal of defendant No. 1 as Managing Director. It is further averred by defendants that the plaintiff by his machinations has virtually ousted defendants 1 to 4 from participating in the management and business affairs at the partnership firm. ( 5 ) THE plaintiff made an application under O. XXXIX, Rr. 1 and 2 read with Section 151 of the Civil P. C. (hereinafter referred to as the Code), being I. A. No. 2592/80, for grant of ad interim injunction restraining defendants 1 to 4 from writing any letter or communication either to their principals M/s. Mahindra and Mahindra Ltd. of to their bankers, namely. Bank of Rajasthan for suspension/closure of business/bank operations of the partnership firm pending disposal of the suit. Accordingly, ad interim injunction restraining defendants 1 to 4 from interfering in any manner with the agency/ dealership of M/s. Mahindra and Mahindra Ltd. was granted by this Court on 8th Aug. , 1980. However, on 21st Aug. , 1980, it was modified slightly to the effect that any further advances taken by the plaintiff from the said Bank over and above the amount of credit availed of by him as on 21st August, 1980 viz. Rs. 15,74,000. 00 would be at his own responsibility and he would not in any manner saddle the liability for the same on defendants 1 to 4. Upon this, the plaintiff has moved an application under O. XXXIX, R. 4 read with S. 151 of the Code, being I. A. No. 2879/80, with the prayer that the modification made by this Court vide order dated 21st Aug. , 1980, in the interim injunction be withdrawn and deleted. It is contended by the plaintiff that the said order was secured by the contesting defendants by misrepresentation inasmuch as the debit balance increased from Rs. 13,26,000. 00 as on 19th Aug. , 1980 to Rs. 15,74,000. 00 as on 21st Aug. , 1980, in the interim injunction be withdrawn and deleted. It is contended by the plaintiff that the said order was secured by the contesting defendants by misrepresentation inasmuch as the debit balance increased from Rs. 13,26,000. 00 as on 19th Aug. , 1980 to Rs. 15,74,000. 00 as on 21st Aug. , 1980 because an amount of Rupees 3,97,308. 00 was paid to M/s. Mahindra and Mahindra against clearing all inward bills i. e. letter of credit documents and an advance of Rs. 20. 000. 00 was made toM/s. Commercial Motor Bodies on 20th Aug. , 1980 against their bill for jeep body fabrication. He further asserts that the defendants deliberately withheld the information from the Court that deposits were also made in the cash credit account of the partnership firm to the tune of more than Rs. 1,50,000. 00 in the meantime. Further, according to him, he did not withdrew any amount for his own use and he was entitled to avail of the full overdraft facility granted by the Bank at Rajasthan to the partnership firm with a limit of Rs. 18,00,000. 00 in the interest of partnership business. ( 6 ) WHILE the abovementioned two applications were pending disposal, counsel for the parties agreed, on the advice of the Court, that all the partners of M/s. Sanghi Motors would meet on Monday, the 22nd Sept, 1980, for finding out a viable solution acceptable to both the Groups for future working of the firm. On the same date viz. 18th Sept. , 1980, the ad interim injunction was further modified, in that, the plaintiff was allowed to avail of the full cash credit facility of Rs. 18,00,000. 00 (rupees eighteen lakhs only) subject to the condition that he would furnish personal guarantee to the Bank beyond the availed of facility of Rs. 15,74,000. 00 as on 21st Aug. , 1980. He was also directed to furnish an indemnity bond in the sum of Rs. 2,50,000. 00 undertaking to indemnify the other partners for any loss or damages done to the partnership business on that account. ( 7 ) THEREAFTER, flhe defendants moved application No. 3199/80 on 25th Sept. , 1980, for taking certain facts into account while disposing of the abovementioned interlocutory applications. 2,50,000. 00 undertaking to indemnify the other partners for any loss or damages done to the partnership business on that account. ( 7 ) THEREAFTER, flhe defendants moved application No. 3199/80 on 25th Sept. , 1980, for taking certain facts into account while disposing of the abovementioned interlocutory applications. Shortly put, it is stated by them that after all attempts on their part to arrive at some amicable settlement with the plaintiff failed and after various proposals put forth by them to resolve the differences and disputes which bad arisen between the parties were rejected by the plaintiff, Shri Rattan Kumar Sanghi defendant No. 2 proposed the following resolution to be passed by the partners present in the meeting: "in view of the fact that Shri Suresh Kumar Sanghi has been doing the business of the firm prejudicial to the interest of the partners and has been misusing the firm s premises and facilities for his private business and is not prepared to accept one of the partners of Shri Amrit Kumar Sanghi Group as an associate Managing Partner with him, he be removed from working as Managing Partner of the firm and in his place Shri Ashok Kumar Sanghi be appointed as Managing Partner with immediate effect. " ( 8 ) SINCE the majority comprising defendants 1 to 4 felt that it was the only viable solution for future and better functioning of the partnership firm, they passed the same in the teeth of opposition by the plaintiff who asserted that fce said matter could not be put to vote and the resolution could not be reduced to writing. Thus, it is asserted that the plaintiff has ceased to be Managing Partner of the firm and his place has been taken by Shri Ashok Kumar Sanghi with effect from 22nd Sept. 1980. ( 9 ) THIS order of mine disposes of all these three applications. ( 10 ) MARATHON arguments were addressed by Dr. L. M. Singhvi, counsel for the plaintiff and his counterpart Shri G. L. Sanghi, counsel for defendants 1 to 4 on various aspects of Ihe controversies involved in these petitions. The principal contention raised by the learned counsel for the defendants precisely is that the partnership between the parties, being at will, it can be determined by any of the parties by giving notice of termination of the partnership at any time. The principal contention raised by the learned counsel for the defendants precisely is that the partnership between the parties, being at will, it can be determined by any of the parties by giving notice of termination of the partnership at any time. Hence, the plaintiff cannot maintain a suit for mere injunction without seeking dissolution of the partnership firm. Consequently, the question of ad interim relief by issue of temporary injunction does not arise. Thus, the crucial point for determination at the outset is whether the partnership in question can be termed as partnership at will and if so whether the plaintiff is entitled to sue for mere injunction as prayed without asking for dissolution of the partnership firm. ( 11 ) SECTION 7 of the Indian Partnership Act (hereinafter referred to as the Act) defines "partnership at will" as under: "where no provision is made by a contract between the partners for the duration of their partnership, or the determination of their partnership, the partnership is partner- ship-at-will. " ( 12 ) ON a plain reading of this definition it is abundantly clear that a partnership shall be deemed to be a partnership at will if (a) no period has been fixed by the partners for its duration, or (b) there is no provision in the partnership agreement or its determination. Prima facie, therefore, partnerships are at will unless, of course, either of the two exceptions is made out. Admittedly, there is no express provision in the partnership deed itself fixing duration i. e. any fixed period of partnership. Similarly, there does not appear to be any explicit provision prescribing the mode of determining the partnership. All the same, it has to be seen if the partnership agreement incorporates any stipulation which may constitute an implied agreement between the parties to continue the partnership for any specific period. Similarly, the Court has to consider whether any terms and conditions warrant an inference that the partnership is to be determined in a particular manner or at a particular point of time; see Halsburys Laws of England, 3rd Edn. , Vol. 28, p. 502, paragraph 964, where it is stated that where there is no express agreement to continue a partnership for a definite period there may be an implied agreement to do so. , Vol. 28, p. 502, paragraph 964, where it is stated that where there is no express agreement to continue a partnership for a definite period there may be an implied agreement to do so. The burden of proving such an implied agreement is, however, upon the person who alleges its existence and the provisions relied on must be clearly inconsistent with the general right to dissolve. The Supreme Court has put its seal of approval on this proposition of law in Karumuthu Thiagarajan Chettiar v. E. M. Muthappa Chettiar, AIR 1961 SC 1225 , and has said (at p. 1229): "now S. 7 contemplates two exceptions to a partnership at will. The first exception is where there is a provision in the contract for the duration of partnership; the second exception is where there is provision for the determination of the partnership. In either of these cases the partnership is not at will. The duration of a partnership may be expressly provided for in the contract; but even where there is no express provision, Courts have held that the partnership will not be at will if the duration can be implied The same principle in our opinion applies to a case of determination. The contract may expressly contain that the partnership will determine in certain circumstances; but even if there is no such express term, an im- plied term as to when the partnership will determine may be found in the contract. " ( 13 ) HENCE, it is to be seen whether in the instant case it is possible to infer from the agreement of partnership if there is an implied term as to its duration or as to when it will determine. ( 14 ) THE learned counsel for the plaintiff has invited my attention to the following salient terms of the partnership agreement in this context. "13. In the event of the death or retire- ment of a partner his nominee or legal heit shall be admitted as a partner with the same rights and benefits as the deceased or retir- ing partner. 14. Death or retirement of partner shall aot dissolve the partnership but shall ba continued with respect to other partners and the nominees or legal heir of the deceased or retiring partner. 15. 14. Death or retirement of partner shall aot dissolve the partnership but shall ba continued with respect to other partners and the nominees or legal heir of the deceased or retiring partner. 15. Any partner desirous of retiring from Ifae partnership shall give six calendar months notice of his intention to retire and on tha expiry of the notice he shall be deemed to have ceased to be a partner. 16. That on the death or retirement ot a partner he shall not be entitled to claim re- valuation of the assets of the partnership but shall retire on the amount standing to his capital account credited at the foot of his account on the date of his death or retire- ment being paid immediately or if tho amount of his capital is not returned to him immediately the same shall be repaid to him in such a manner and with such interest at may be mutually agreed upon. " ( 15 ) FROM a conjoint reading of all these stipulations, it is manifestly clear that the parties never intended that the partnership be dissolved at the sweet will of any of tho partners, rather their intention was that business of the partnership should continue as long as possible, notwithstanding, death or retirement of any partner. Hence, they were at pains to make suitable provisions in the agreement itself for safeguarding the in- terests of the surviving partners/heirs of the deceased partner in the partnership business. Similarly, Cl. 14 clearly impinges upon and negatives the statutory right of a partner to dissolve the partnership at will at his option and it postulates in clear terms that the part- nership shall be continued with respect to other partners and the nominee or legal heirs of the retiring or the deceased partner as the case may be. It is well settled that retirement is not the same thing as dissolu- tion. On retirement of a partner the firm continues to exist as such which is not the case when a partnership is dissolved. Tech- nically speaking retirement is a severance of the interest of a partner from the partnership business and is not tantamount to determina- tion of the partnership as a whole, the other partners continue to carry on the busines*! of the firm. Tech- nically speaking retirement is a severance of the interest of a partner from the partnership business and is not tantamount to determina- tion of the partnership as a whole, the other partners continue to carry on the busines*! of the firm. On the contrary, the dissolu- tion of a partnership completely destroy jural relationship as partners between all the partners and the question of partnership business being carried on by partners other than the outgoing partner does not arise. A* laid down in S. 46 of the Act, on the disso- lution of a firm every partner isentitled to have the partnership business wound up and to have the property of the firm applied in payment of the debts and liabilities of the firm and to have the surplus distributed among the partners or the representatives. Such a right in any partner has been expli- citly taken away by Cl. 16 of the partnership agreement and the outgoing partner is sim- I ply entitled to the amount standing to hi* | capital account credited at the foot of his accounts on the date of his retirement He cannot claim even revaluation of the assets of the partnership business. The same treatment has been meted out to a dying partner and his legal heirs can simply claim admission to the partnership business with the same rights and benefits a the deceased or the capital amount standing to the credit of the deceased. All these stipulations clearly militate against the concept of "partnership-at-will", for the essence of a partnership at will is that it is open to either partner to dissolve the partnership by giving notice. ( 16 ) IN Moss v. Elphick, (1910) 1 KB 846, the plaintiff and the defendant became partners in a tobacconist s business by an agreement in writing dated 14th August, 1907. Clause 4 of that agreement provided that the said agreement would be terminated by mutual arrangement only. On 2nd March, 1909, the plaintiff gave the defendant a fortbight s notice in writing of his intention to terminate the partnership. The defendant contended that the notice was inoperative upon the ground that by Cl. 4 of the partnership agreement the partnership could only be determined by mutual consent. This contention was upheld by the Court of Appeal. On 2nd March, 1909, the plaintiff gave the defendant a fortbight s notice in writing of his intention to terminate the partnership. The defendant contended that the notice was inoperative upon the ground that by Cl. 4 of the partnership agreement the partnership could only be determined by mutual consent. This contention was upheld by the Court of Appeal. The following observations of Fletcher L. J. are very pertinent in this context: "in this case it is provided that "this agreement shall be terminated by mutual arrangement only"; or, in other words, that the partnership shall in effect, be for the joint lives of the parties, unless terminated by mutual agreement. There is, therefore, a specific provision as to the duration of the partnership inthepartnershipagreement; and it is in that sense a partnership for a fixed, i. e. defined, term. . . . . . . . . . . . . . . . . . . . . . . " (Emphasis supplied) ( 17 ) FARWELL L. J. amplified the position further saying: "it is impossible in this case to say that by the terms of the partnership agreement the partnership was "at will", because that means that it is determinable at the will of either of the parties. . . . . . . . . . . . . . . . . . . . . . . . The effect of the agreement is that the partnership is to endure for the joint lives of the partners. " ( 18 ) THIS dictum was followed in Abbott v. Abbott, (1936) 3 All ER 823. In the said case by a deed of partnership between father and his five sons. it is provided, inter alia. that: "the death or retirement of any partner shall not terminate the partnership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and if any partner shall. . . . . . . . . . . . . . . . . . . . . . . do or suffer any act which would be a ground for the dissolution of the partnership by the Court then he shall be considered as having retired. . . . . . . and if any partner shall. . . . . . . . . . . . . . . . . . . . . . . do or suffer any act which would be a ground for the dissolution of the partnership by the Court then he shall be considered as having retired. One of the sons, claiming that as no term had been fixed for the duration of the partnership it was a partnership at will, gave notice of dissolution and brought an action for a declaration that the partnership had been dissolved. . . . . ( 19 ) UPON a proper construction of the deed of partnership, it wag held by Clauson, J. that: "there is some limitation upon this character of the partnership; it is subject to the express agreement that a single partner cannot determine the partnership although he can determine it as between himself and the others. This involves the fact that if one intimates his desire to go out, the partnership shall continue among the remaining partners. " ( 20 ) THEN, he dealt with the question as to how long and until when is the partnership to continue and answered the same as under: "but the clause seems consistent with the view that so long as there are two partners the partnership is to continue. Clause 10 seems to contemplate that there may be circumstances in which the partnership might have to be dissolved by the Court. That it quite alien from the conception of a partnership at will to which a partner can put an end of his own volition. . . . . . . . . . . . . . . . . . . . . That clause seems to indicate that this is a partnership which is not determinable at the will of one partner as between all the partners, but it is a partnership which is to continue until there is a dissolution of it by the Court or by some other event, save as against a partner who retires. " ( 21 ) THIS case was noticed by the Supreme Court in Karumuthu Thiagarajan Chettiar v. E. M. Muthappa Chettiar ( AIR 1961 SC 1225 ) (supra) and the dictum laid therein was approved. " ( 21 ) THIS case was noticed by the Supreme Court in Karumuthu Thiagarajan Chettiar v. E. M. Muthappa Chettiar ( AIR 1961 SC 1225 ) (supra) and the dictum laid therein was approved. In the said case an agreement of partnership between the appellant and the respondent of the managing agencies of mills recited that the partners should get in equal shares, the salary, commission, profit, etc. that might be realised from the aforesaid managing agencies. It provided for carrying on the management in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter. It further provided that the partners and their heirs and thosegetting their rights should carry on the management in rotation. The accounts were to be made once in every year after the closing of the yearly accounts of the two mills. The agreement further provided that in ease either partner thinks of relinquishing his right at management under the agreement it should be surrendered to the other partner only but should not be transferred or sold to any other person what- ever. Finally, it was provided that the two partners should carry on the affairs of the firm by rotation once in four years and the income realised thereby should be divided year after year and the partners and their heirs should get the same in equal shares and thus carry on the partnership management. ( 22 ) ON these facts, the Supreme Court held that: "the intention of me partners could not be to create a partnership at will. The intention obviously was to have a partnership of some duration, though the duration was not expressly fixed in the agreement. The partnership was for the sole business of carrying on the managing agency and therefore by necessary implication it must follow that (he partnership would determine when the managing agency determined. The terms of the partnership clearly suggested that the duration of the partnership would be the same as the duration of the managing agency. The partnership was for the sole business of carrying on the managing agency and therefore by necessary implication it must follow that (he partnership would determine when the managing agency determined. The terms of the partnership clearly suggested that the duration of the partnership would be the same as the duration of the managing agency. "their Lordships further observed that: "a term in the contract that either partner might withdraw from the partnership by relinquishing his right of management to the other partner did not make the partnership a partnership at will, for the essence of a partnership at will is that it is open to either partner to dissolve the partnership by giving notice. Relinquishment of one partner s interest in favour of the other, which was provided in this contract was a very different matter. It is true that in this particular case there were only two partners and me partnership will come to an end as soon as one partner relinquishes his right in favour of the other. That however is a fortuituous circumstance; for, if (for example) there had been four partners in this case and one of them relinquished his right in favour of the other partners, the partnership would not come to an end. "that clearly shows that a term as to relinquishment of a partner s interest in favour of another would not make the partnership one at will. ( 23 ) THESE observations too apply with a greater force to the case in hand inasmuch as the partnership agreement specifically stipulates about all these contingencies and provides for withdrawal of a partner with a dear rider that me death or retirement of a partner shall not dissolve the partnership. Thus, the right of dissolution of partnership, which is available to a partner under Sec. 43 of the Act, has been clearly taken away and no partner can drive the others to dissolution of the same. Hence, despite a partner walking out of the business, the business has to be carried out by the remaining partners and they are entitled to goodwill of the partnership business. Indeed, mutuality is the key-note of the partnership agreement. Hence, despite a partner walking out of the business, the business has to be carried out by the remaining partners and they are entitled to goodwill of the partnership business. Indeed, mutuality is the key-note of the partnership agreement. ( 24 ) THE learned counsel for the defendants has canvassed with considerable force mat right of retirement is not inconsistent or incompatible with right of dissolution and as envisaged in S. 32 (1) (c) of the Act, a partner may retire, where the partnership is at will by giving notice in writing to all other partners of his intention to retire. No doubt, this clause allows a partner in a partnership at will to retire from the firm without dissolving it and his right to dissolve the firm, if he considers that to be the better course, remains unimpaired. All the same, this clause is of no assistance to the defendants in the face of clear stipulations to the contrary contained in the partnership agreement itself. Both Keshavlal Lallubhai Patel v. Patel Bhailal Narandas, AIR 1968 Guj 157 and Vidya Devi v. Mani Ram, (1974) 10 Delhi LT 311, on which reliance has been placed by the learned counsel for the defendants are distinguishable on facts. In the former case, the agreement of partnership deed provided for retirement of a partner and the duration of the partnership was not fixed. However, it contained a clear stipulation that the partnership was at will. In the face of this express provision in the partnership deed itself, the learned Judges held that there was no room or scope for making a contrary implication, such an implication having been clearly excluded by the plain, unambiguous and deliberate expresion of the intention of the parties manifested in the aforesaid clause. It is, however significant to note that Bhagwati, J. (as his Lordship then was) who spoke for the Court drew a clear distinction between retirement of a partner and dissolution of the firm. The contention was raised before their Lordships that under the law of partnership a firm is not a legal entity but is merely a compendious name for the partners and, therefore, when a firm s partner retires from a firm, it is not correct to say that the firm continues to exist as such inasmuch as the firm consisting of the retiring partner and the continuing partners ceases to exist. However, this contention was repelled by their Lordships with the observations that: "section 38 also postulates that changes in the constitution of a firm do not affect the continuity of existence of the firm. It provides that a continuing guarantee given to a firm, or to a third party in respect of the transaction of a firm, is, in the absence of agreement to the contrary, revoked as to future transactions from the date of any change in the constitution of the firm. This provision would have been totally unnecessary if a change in the constitution of a firm had the effect of dissolving the firm and bringing into existence a new firm. The provisions in Chap. V therefore clearly extend a limited personality to a firm and recognise continuity of existence of the firm despite internal changes in the constitution of the firm such as introduction, retirement, expulsion, death or insolvency of partner. In this respect the law of partnership in India represents a compromise between the strict view of the English law which refused to accord a legal personality to a firm and regards it merely as a compendious name for the partners and the mercantile usage which recognises a firm as a distinct entity or quasi-corporation. "consequently his Lordship concluded by saying : "a provision for retirement of a partner which has the effect of disrupting the partnership only as between the retiring partner and the continuing partners and not as between all the partners inter se cannot, therefore, be regarded as a provision for determination of "their partnership" within the meaning of S. 7. " ( 25 ) WITH respect I agree with these observations in entirety. Similarly, Vidya Devi s case (1974-10 Delhi LT 311) (supra) is distinguishable on facts. Having regard to the explicit postulates of the partnership deed adverted to above, there is no escape from the conclusion that the partners in the instant case have been divested and stripped off of their legal right to dissolve the partnership, if any, except by mutual consent and the intention of the parties clearly is that the partnership business must be continued so long as it is possible by the surviving partners and the nominees/legal heirs of the retiring/deceased partner, if any. Hence, it can be dissolved only by mutual consent of all of them and not by any one of them at his sweet will. ( 26 ) THAT being the position, the question would arise as to whether the plaintiff is entitled to injunct the defendants from interfering with the management and conduct of the business by him or creating hurdles and obstacles in his way to the detriment of partnership business as alleged. The learned counsel for the defendants 1 to 4 has canvassed with considerable fervour that the plaintiff cannot as a matter of right saddle the defendants with personal liability under the bank guarantee against their will, more so when the bank guarantee has not been given by them pursuant to any term or condition of the partnership agreement and they have done so of their own accord in order to facilitate and promote the smooth functioning of the partnership business. He has further urged that an injunction cannot bo granted to prevent the breach of contract, the performance of which will not be specifically enforced (S. 41, Cl. (e) of Specific Relief Act ). So, according to him, a contract, which will not be affirmatively enforced by a decree for specific performance, will not be negatively enforced by the grant of an injunction. However, this argument no longer holds good, for there is abundant authority for the proposition that the Court will restrain a partner from violating the terms of his partnership contract of acting inconsistently with his duties as a partner during the subsistence of the partnership irrespective of the fact whether dissolution is also sought or not. It may be that where an agreement of partnership has not at all been acted upon the Court may, in a proper case, refuse to decree specific performance thereof because it may not be considered just or equitable to force partnership on an unwilling partner. However, the position in a case like the present where a partnership agreement has been acted upon for several years and the partnership is still subsisting would be altogether different. Certainly, after the commencement and during the continuation of a partnership it will be equitable for the Court in many a case to interpose to decree specific performance of articles/ terms of the partnership. Certainly, after the commencement and during the continuation of a partnership it will be equitable for the Court in many a case to interpose to decree specific performance of articles/ terms of the partnership. The necessity for such an action arises when the conduct of a partner virtually imperils the success of partnership enterprise and jurisdiction to enjoin a partner from doing that which seriously interferes with the business or which is a breach of the express terms of the partnership agreement is now well established, even if the suit does not seek a dissolution of the partnership. Thus, jurisdiction to grant preventive relief may primarily rest upon contractual obligations between the partners, the violation of which will be prevented to avoid irreparable injury and vexatious or interminable litigation. Lord Lindley has stated the legal position in his book on Law of Partnership (13th Edn.), at page 545 as follows : "in order to prevent a partner from acting contrary to the agreement into which he may have entered with his co-partners, or contrary to the good faith which, independently of any agreement, is to be observed by one partner towards his co-partner, it is sometimes necessary for a Court to interfere either by granting an injunction against the partner complained of, or by taking the affairs of the partnership out of the hands of all the partners, and entrusting them to a receiver or receiver and manager of its own appointment. "the learned author proceeds to state: "whatever doubt there may formerly have been upon the subject, it is clear that an injunction will not be refused simply because no dissolution of partnership is sought. " ( 27 ) THE learned author after adverting to various reported cases, e. g. England v. Curling (1844-8 Beav 129); Hall v. Hall (1855-20 Beav 139); Clements v. Norris (1878-8 Ch D 129) and Aas v. Benham (1891-2 Ch 244) sums up the position as such: "these authorities show that where a partnership is not determinable at will, those partners who are desirous of carrying on the business in the proper way will be protected by the Court from the unwarranted acts of a co-partner, whose only object may be to force the others to submit to him or to agree to a dissolution. "he then deals with the desirability of granting an injunction where the partnership is deterrninable at will but dissolution is not sought and says: "where the partnership is determinable at will, there is, it is said, more difficulty in interfering if a dissolution is not sought; for, supposing the Court to interfere, the defendant may immediately dissolve the partnership. But supposing him to do so, an injunction will not necessarily be futile, inasmuch as so long as it continues in force, the defendant is rendered powerless for evil, and a notice by him to dissolve the partnership, cannot, per se, operate as a dissolution of the injunction. " ( 28 ) SEE also para 1087 of Halsbury s Laws of England, 3rd Edition, Vol. XXVIII, in this context. In Fairthorne v. Weston, (1844) CH 3 Hare 387, a bill by one partner against another, alleged that the defendant, by conducting himself in violation of the partnership contract, was excluding the plaintiff, and applying the assets to his own use and thus he sought to force the plaintiff to dissolve the partnership before the end of the term. The plaintiff prayed for an account of the partnership transactions and appointment of a receiver but no dissolution. The defendant raised an objection that a bill praying a particular account was demurrable unless the bill sought a dissolution of the partnership. However, this contention was repelled by the Vice-Chancellor with the observation that the aforesaid proposition of law was never admitted to be a rule of universal application and it was essential to justice that no such universal rule should be sustained. He further observed that: "if that were the rule of the Court, it is obvious that a person fraudulently inclined might, of his mere will and pleasure, compel his co-partner to submit to the alternative of dissolving a partnership, or ruin him by a continued violation of the partnershipcontract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It is unnecessary to say, in this stags of the cause, what relief may be given: it is sufficient to say that the Court will go as far as it can to protect the rights of the parties; and I have no doubt that it may interpose to support as well as to dissolve a partnership. " ( 29 ) SIMILARLY, the Maste of the Rolls said in Marshal v. Watson, (1858) Ch 25 Beav 501 that: "i should prevent one partner from doing an intentional serious injury to his co-partner, as if he were taking proceedings to depreciate the partnership property. " ( 30 ) NO doubt the said case was not one of partnership at will but the observations made by the Master of the Rolls are very pertinent in the context of the present case. Hence, injunction will not be refused ia partnership cases simply because BO dissolution is sought. As shall be presently seen, the defendants persist in conducting themselves so wantonly as to render it impossible for the business to be carried on in a proper manner. It matters not whether they are doing so in violation/breach of any specific stipulation in the partnership agreement or otherwise, for the fact remains that all the partners furnished personal guarantees to the Bank concerned for granting them overdraft facility to the tune of Rs. 18,00. 000. 00 and the same has been operated upon by the plaintiff consistently and continuously evel since the inception of the partnership business. Clause 9 of the partnership agreement clearly enjoins upon all the partners to be just and faithful to each other and to render true account and information of all things affecting the firm to any partner. So, the conduct of the defendants in writing letter dated 30th August, 1979, to their principals to suspend supplies of vehicles and parts to the partnership firm clearly constituted an act of bad faith. So, the conduct of the defendants in writing letter dated 30th August, 1979, to their principals to suspend supplies of vehicles and parts to the partnership firm clearly constituted an act of bad faith. They did so at the back of the plaintiff obviously with a view to undermine and impair his position as Managing Partner, Even otherwise, this action on the part of the defendants was injurious and harmful to the business of the firm. Not only that, they also wrote to their Banket viz. Bank of Rajasthan Limited that a dispute having arisen among the partners of the firm, they i. e. Bankers should not honour any cheque issued by any partner in the firm s account and the authority to operate the account by any of the partners jointly or severally be treated as suspended. This kind of wanton and unruly act was bound to recoil and boomerang on the business of the partnership, as would be abundantly clear from letter dated 16th Sept. , 1979, of M/s. Mahindra and Mahindra Limited to the defendant-firm. In the said letter, the principals of the partnership firm made a grievance of the fact that their Banker had declined to negotiate documents under the letter of credit opened by them, even though the lame was irrevocable. So, they threatened the partnership firm with immediate cancellation of the franchise. It is a different thing that subsequently some kind of settlement was arrived at between the parties and the plaintiff continued to conduct and manage the affairs of the partnership as before. However, the differences and disputes between the two groups of partners were so deep rooted that the settlement proved to be short-lived and litigation again ensued between both with regard to the partnership firm as well as M/s. Supreme Motors, the other family concern of the parties. Hence, it is absolutely imperative and essential that steps be taken by this Court to preserve the business and goodwill of the partnership till it is dissolved by consensus among the partners or some other viable solution is found. Certainly the comparative mischief or inconvenience which is likely to issue from withholding injunction will be greater than that which is likely to arise from granting it. Certainly the comparative mischief or inconvenience which is likely to issue from withholding injunction will be greater than that which is likely to arise from granting it. ( 31 ) FINALLY, the learned counsel for the defendants has vehemently urged that defendants 1 to 4 constitute majority in the partnership and as such the rule of majority must prevail in carrying on the affairs of the partnership firm. Thus, according to him, the resolution passed by defendants 1 to 4 at the meeting held on 22nd Sept. , 1980, was tantamount to a vote of no confidence in the plaintiff and as such he ceased to be the managing partner. He has alluded to Cl. (s) of S. 12 of the Act in this context. It runs as follows: " (C) any difference arising as to ordinary matters connected with the business may be decided by majority of the partners, and every partner shall have the right to express his opinion before the matter is decided, but no change may be made in the nature of the business without the consent of all the cartners; and. " ( 32 ) ON a plain reading of this clause it is manifest that the decision of the majority is to prevail with regard to ordinary matters connected with the business. However, the majority of partners have not been vested with a power to bind the other partners with regard to matters of vital importance and the decision with regard to the same must be with the consent of all partners. Further, it is well settled that the majority must act in good faith. No doubt, a partnership being the business of all the partners, the powers of management of the partners are co-extensive but it is well recognised that control and management of partnership business can be exercised by a single partner and need not be by majority. That is precisely what happened in the instant case. Admittedly, the plaintiff has been working as managing partner since the inception of the partnership by mutual consent of all the partners. Certainly that consent cannot be withdrawn or nullified only by a majority of partners, especially after serious disputes and differences have cropped up amongst the two groups. That is precisely what happened in the instant case. Admittedly, the plaintiff has been working as managing partner since the inception of the partnership by mutual consent of all the partners. Certainly that consent cannot be withdrawn or nullified only by a majority of partners, especially after serious disputes and differences have cropped up amongst the two groups. Lord Halsbury lays down the following rule in this connection: "subject to any agreement express or implied between the partners, every partner may take part in the management of the partnership business (Partnership Act, 1890), and, subject to any such agreement, any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but the majority must act in good faith and every partner must have the opportunity of being heard. " (Halsbury s Laws of England, 3rd Edn. , Vol. 28 p. 527 ). ( 33 ) SIMILARLY Lord Eldon LC in Const v. Harris, (1824) 24 RR 108, remarked that: "i call that the act of all, which is the act of the majority, provided all are consulted, and the majority are acting bona fide, meeting not for the purpose of negativing, what any one may have to offer, but for the purpose of negativing, what, when they are met together, they may, after due consideration, think proper to negative; for a majority of partners to say, "we do not care what one partner may say, we, being the majority we will do what we please," is, I apprehend, what this Court will not allow. " ( 34 ) THESE observations of Lord Eldon aptly apply to the case in hand. Having regard to the background in which the resolution dated 22nd Sept. , 1980, was passed by the go-called majority constituted by defendants, there can be no shadow of doubt that their action was inspired and actuated by spite and ill will rather than by a sense of responsibility and desire for furtherance of the business interests of the partnership. Needless to say, that the plaintiff and for that matter defendants 5 and 6 had no opportunity whatsoever of being heard when the said resolution was passed and as conceded by the learned counsel for the defendants, the resolution was not even recorded in the minute book of the firm. Needless to say, that the plaintiff and for that matter defendants 5 and 6 had no opportunity whatsoever of being heard when the said resolution was passed and as conceded by the learned counsel for the defendants, the resolution was not even recorded in the minute book of the firm. Needless to say, that the parties had gathered on the said date with a view to find out some amicable and viable solution of the ugly situation acceptable to all in the larger interests of the family to which both the parties belong. Certainly, the question of a no confidence motion could not arise at such a meeting. It could not be even present to the mind of the plaintiff. Hence the said resolution has to be ignored tor all intents and purposes as at present and its impact, if any, will be considered at a later stage. ( 35 ) BEFORE concluding I may also make a passing reference to yet another argument advanced by the learned counsel for the defendants with regard to the status of the plaintiff. According to him, the plaintiff has two different capacities; one as partner and the other as an employee, i. e. , manager of the partnership firm, for which he gets remuneration separately. Thus, his status being that of mere employee he cannot seek injunction to interdict the other partners or give a mandate to them to act in a particular manner. However, this argument is simply fallacious. It is true that some remuneration is paid to a managing partner but his stature is thereby enhanced and not lowered to that of a mere employee. Indeed, he holds a position of vantage and dominance over the other partners in some respect and he must be permitted to carry on the affairs of the partnership business smoothly without any let or hindrance by other partners. As already seen, the defendants fired the first shot by writing to their principals and bankers for suspending supplies of the vehicles and credit facilities respectively. That certainly constituted wanton misconduct and breach of good faith and, if I may say so, a suicidal act on their part in relation to partnership business. Surely, the plaintiff, as a responsible partner, has a right to require them to discharge their duties as partners faithfully and diligently. That certainly constituted wanton misconduct and breach of good faith and, if I may say so, a suicidal act on their part in relation to partnership business. Surely, the plaintiff, as a responsible partner, has a right to require them to discharge their duties as partners faithfully and diligently. They can hardly be allowed to stab the partnership business in the back and destroy it altogether by undisciplined and irresponsible behaviour. It may be, as submitted by the learned counsel for the defendants, that after the amicable settlement arrived at between the parties earlier, the defendants did not give any fresh cause of action to the plaintiff to justify misapprehension on his part, but the fact remains that their conduct during the pendency of this litigation has not been dignified and smacks of vindictiveness. It may be pertinent to add here that by mutual arrangement between the parties, the plaintiff has been entrusted with the task of managing the partnership firm M/s. Sanghi Motors whereat Amrit Group is controlling the affairs of M/s. Supreme Motors. So, equity demands that the status quo ante be maintained till the disputes and differences between the parties are amicably settled or otherwise determined with regard to both these concerns. Surely, the defendants cannot have best of both the worlds. To permit them to disown their obligations towards the partnership business would be simply to deprive the plaintiff and defendants 5 and 6 of their say in the business affairs of both the concerns. Surely, equity cannot countenance such a step or move. ( 36 ) TO sum up, therefore, I find that all the three postulates which govern the exercise of discretion in granting temporary injunction, namely, (1) existence of a prima facie right in the plaintiff and its infringe- ment by the defendants, (2) balance of con- venience, and (3) likelihood of irreparable in- jury which will accrue to him if injunction i* not granted are well satisfied in the instant case. However, the grant of injunction, being in the nature of equitable relief, the Court would be justified in imposing terms as a condition to the granting of an injunction. So, having regard to all the circumstances of the case, I make the following order: (1) The plaintiff shall be entitled to operate the overdraft facility to the full limit of Rs. So, having regard to all the circumstances of the case, I make the following order: (1) The plaintiff shall be entitled to operate the overdraft facility to the full limit of Rs. 18,00,000 (rupees eighteen lakhs only) in connection with the business of the partnership firm and the defendants shall not in any manner interfere with or withdraw the personal guarantees furnished by them to their Banker so as to came any hindrance or obstruction in tee matter of payments to their principals M/s. Mahindra and Mahindra Limited and other parties having business dealings with the firm till the decision of the suit. (2) The plaintiff shall, however, furnish an indemnity bond in the sum of Rs. 5,00,000. 00 (rupees five laks only) to this Court undertaking to indemnify the defendants for any loss or damage caused to them due to any act of misfeasance or gross negligence on his part. The indemnity bond shall be furnished with one surety to the satisfaction of the Registrar within a month failing which the ad interim injunction shall stand vacated. (3) The plaintiff shall further maintain true and faithful account of all business transactions of the partnership and shall submit a true statement of partnership accounts to this Court every quarterly; the first such statement of account for the period ending 31st Dec. , 1980, to be furnished by 15th Feb. , 1981 and the subsequent statements shall be furnished within a month succeeding the last date of each quarter, the first quarter to be reckoned as ending on 31st Mar. , 1981 and so on and so forth.