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2000 DIGILAW 320 (CAL)

ASOKE KUMAR PATRA v. PYARI RANI@ PARIRANI PATRA

2000-07-06

BHASKAR BHATTACHARYA

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BHASKAR BHATTACHARYA,J. ( 1 ) THIS revisional application is at the instance of defendants in a suit for account and is directed against order dated September 15, 1999 passed by the learned Additional District Judge, 3rd Court, Midnapore in Misc. Appeal No. 25 of 1999 thereby affirming Order No. 9 dated february 11, 1999 passed by the learned Civil judge, Junior Division, 1st Court, Midnapore in O. S. No. 108 of 1998. ( 2 ) THE plaintiff/opposite party is the brother's wife of the present petitioners/defendants. The opposite party filed a suit being o. S. No. 108 of 1998 thereby praying for the following reliefs :-" (A) For a decree directing the defendants to render a faithful and true account regarding the joint truck business of the plaintiff and the defendants during the period from the middle part of 1984 upto date. (b) For decree of payment to the plaintiff of a sum as may be found due on accounting. (c) For direction to be made to the plaintiff for payment of the Court fees after accounting upon the share of the plaintiff. (d) For appointment of receiver for management of the business and for collection of the money due to the said business during the pendency of the suit. (e) For all costs of the suit and other equitable reliefs etc. " ( 3 ) THE case made out by the opposite party was that as per verbal agreement among the parties they had entered into a transport business for which they jointly purchased the truck in question by making equal contribution and the names of the parties were mutated in the R. C. Book. It was further alleged that at the time of purchase of the truck it was orally agreed among the parties that the truck would ply on the road on hire basis under direct supervision and management of petitioner No. 1 with the assistance of Petitioner No. 2. The petitioners would keep accounts of income and expenditure of the truck hiring business and there would be accounting of the income and expenditure of the business by the end of december in each year and after accounting, the profit of the business would be distributed among the plaintiff and the defendants in equal share. The petitioners would keep accounts of income and expenditure of the truck hiring business and there would be accounting of the income and expenditure of the business by the end of december in each year and after accounting, the profit of the business would be distributed among the plaintiff and the defendants in equal share. The opposite party complained that the Petitioners did not pay a furthing to the opposite party towards profit of the said joint business inspite of repeated request. Hence the suit. ( 4 ) AFTER filing of the aforesaid suit, the opposite paty filed an application under Order 40, Rule 1 of the Code of Civil Procedure for appointment of a receiver over the truck in question. The said application was opposed by the present Petitioners but the learned trial judge by Order No. 9 dated February 11, 1999 allowed such prayer thereby appointing one swapan Bhattacharya, a receiver over the property for the purpose of realisation of profit of the business and for keeping proper accounts of the same on a remuneration at the rate of 5% of the profit of the business. ( 5 ) BEING dissatisfied, the present Petitioners preferred an appeal before the learned first appellate court below and by the order impugned herein the learned first appellate court below has affirmed the order passed by the learned trial Judge. ( 6 ) BEING dissatisfied, the defendants have come up in revision. Dr. Mondal, the learned counsel appearing on behalf of the Petitioners drew attention of this court to the allegation made in the plaint and had submitted that even if the allegations of the plaintiff are treated to be true, the suit field by the opposite party was not maintainable in view of the fact that a suit for account without prayer of dissolution of the partnership firm cannot be maintained due to the bar imposed under Section 69 of the Partnership act as undisputedly the business is not a registered one within the purview of the said Act. Dr. Mondal thus contends that the suit being prima facie not maintainable, the learned courts below acted illegally and with material irregularity in appointing a receiver over the business. ( 7 ) MR. Dr. Mondal thus contends that the suit being prima facie not maintainable, the learned courts below acted illegally and with material irregularity in appointing a receiver over the business. ( 7 ) MR. ROYCHOWDHURY, the learned senior counsel appearing on behalf of the opposite party has on the other hand supported the orders impugned and has submitted that in the plaint only a case of joint ownership of property was made out. According to Mr. Roychowdhury this is not a case of partnership and as such the suit was not hit by the provision of Section 69 of the Partnership Act. Mr. Roychowdhury in this connection relies upon two decisions, one of the Supreme Court in the case of Raptakes Brett and Co. v. Ganesh Propert, and the other of Allahabad high Court in the case of Mirza Najam Effindi v. Firm Kohinoor Footwork. In the case of Raptakes Brett and Co. (supra), the plaintiff , a registered partnership firm filed a suit for eviction and damages for illegal occupation of the property on the ground of expiry of lease. The defence taken by the tenant was that the suit was hit by Section 69 (2)of the Partnership Act. The Apex Court turned down such objection holding that the prayer of recovery of possession was based on right to get possession under the covenant of lease and the law of the land viz. Sections 108 (a)and 111 (a) of the Transfer of Property Act. I fail to understand how the said decision can be of any help to Mr. Roychowdhury's client. In the case of Mirza Najam Effindi (supra)the Allahabad High Court on the basis of materials on record found that the plaintiffs were sole agents for sale of the defendant's goods on commission basis and as such were not partners as there was no agreement to "share the profits of the business". In our case, it is the specific case of the plaintiff that the parties agreed to share the profit equally among them after accounting. Thus, the said decision is of no avail to the opposite party. ( 8 ) MR. Roychowdhury further contends that both the learned Courts below having concurrently found strong prima facie title over the truck in question, this court sitting in revision should not interfere with such concurrent findings of fact. Mr. Roychowdhury thus prays for dismissal of the revisional application. ( 8 ) MR. Roychowdhury further contends that both the learned Courts below having concurrently found strong prima facie title over the truck in question, this court sitting in revision should not interfere with such concurrent findings of fact. Mr. Roychowdhury thus prays for dismissal of the revisional application. ( 9 ) AFTER hearing the learned counsel for the parties and after going through the averment made in paragraphs 2 and 3 of the plaint, i find that the opposite party has made out a clear case of agreement among the parties to share profit out of the business. In such a case it must be held that the opposite party came forward with a case of partnership on the basis of verbal agreement. In paragraph 3 of the plaint it is specifically stated that according to the agreement, the Petitioners would be in charge of the business and would keep account. Such accouning will be made in the month of December every year and the profit of the business would be equally distributed among the three persons. Thus, in my view, all the ingredients of partnership are present even on the basis of plaint allegation and that being the position, a suit for account without the prayer for dissolution is not maintainable in view of the restriction imposed under Section 69 of the Partnership Act as undisputedly the business is not registered within the provision of the Partnership Act. ( 10 ) IN a suit the Court can grant appointment of a receiver provided a very strong prima facie case is made out. Even on the basis of plaint averment it is apparent that the final relief prayed for in the suit cannot be granted to the plaintiff. In such a case no receiver should be appointed. Therefore, prima facie the suit being barred, the learned Courts below acted illegally and with material irregularity in appointing a third party as receiver over the business concern. ( 11 ) I, thus, set aside the orders impugned and dismiss the application under Order 40, rule 1 of the Code. In such a case no receiver should be appointed. Therefore, prima facie the suit being barred, the learned Courts below acted illegally and with material irregularity in appointing a third party as receiver over the business concern. ( 11 ) I, thus, set aside the orders impugned and dismiss the application under Order 40, rule 1 of the Code. I make it clear that the observations made herein which are made for disposal of the application for appointment of receiver should be treated as prima facie observations and those will not be binding upon the court at the time of final hearing of the suit when oral and documentary evidence would be adduced on behalf of the parties. ( 12 ) WITH the above observation, the revisional application is allowed. Orders impugned are set aside. No costs. Revision allowed.