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2007 DIGILAW 234 (PNJ)

Jagjit Singh v. Narinder Pal

2007-02-08

RAJIVE BHALLA

body2007
Judgment Rajive Bhalla, J. 1. Challenge in the second appeal is to the judgment and decree of learned District Judge, Sangrur dated 24.9.1996, accepting the appeal, filed by the respondents herein by setting aside the judgment and decree dated 22.12.1994, passed by the Sub Judge, 1st Class, Sunam. 2. The appellants and the respondents herein were admittedly partners of M/s Satgur Rice Mills, Sunam. The plaintiffs-appellants filed a suit for declaration, praying therein for rendition of accounts and alleging therein that the partnership stood dissolved with effect from 21.4.1991. The respondents resisted the suit and specifically pleaded that the partnership stood dissolved with effect from 21.11.1988. 3. The learned trial Court, upon an appraisal of the pleadings framed the following issues: 1. Whether the parties entered into partnership and partnership-deed dated 20.5.1987 was executed as alleged in the plaint? OPP 2. Whether the partnership firm M/s Satgur Rice Mill stood dissolved w.e.f. 21.4.1991? OPP 3. Whether the plaintiffs are entitled to the decree for rendition of accounts as alleged in the plaint? OPP 4. Whether the plaintiffs have no locus standi and cause of action to file the suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit has not been properly valued for the purpose of court-fees and jurisdiction? OPD 7. Whether the suit is within limitation? OPP 8. Whether the Civil Court has no jurisdiction to try the present suit? OPD 9. Whether the partnership firm was dissolved on 21.11.1988 as alleged in the written statement of defendant No. 1? OPD 9A. Whether there is collusion between plaintiffs and defendant No. 3 and the plaintiffs have access/control over the account books? If so, its effect? OPD 9B. Whether the account books are the original genuine documents duly prepared in due course of business? OPP 4. After the parties led evidence, the learned trial Court vide its judgment and decree dated 22.12.1994 held that the partnership stood dissolved on 21.4.1991 and directed the drawing up a preliminary decree. Aggrieved, by the aforementioned judgment, the respondents, filed an appeal before the Additional District Judge, Sangrur. Vide Judgment and decree dated 24.9.1996, the first appellate Court, set aside the judgment of the trial Court. The first appellate Court held that the partnership stood dissolved with effect from 21.11.1988. Accordingly, it directed modification of the preliminary decree, as drawn up by the trial Court. Vide Judgment and decree dated 24.9.1996, the first appellate Court, set aside the judgment of the trial Court. The first appellate Court held that the partnership stood dissolved with effect from 21.11.1988. Accordingly, it directed modification of the preliminary decree, as drawn up by the trial Court. 5. Counsel for the appellants, has framed the following questions of law: (i) Whether the partnership-deed dated 20.5.1987 stood dissolved on 21.4.1991 as pleaded by the plaintiffs in their plaint or it stood dissolved on 21.11.1988 as pleaded by defendant No. 1 in his written statement? (ii) Whether the findings contained in the impugned judgment of the Lower Appellate Court are perverse, especially when he has gravely erred by relying upon the alleged U.P.Cs. dated 21.11.1988 (Ex.D-3 and D-4), upon which postal seal of M.O. has been appended and as such he has gravely erred by reversing the well reasoned findings of the trial Court? (iii) Whether the findings contained in the impugned judgments are liable to be set aside in the light of the Division Bench judgment reported in 1998(1) P.L.J. 315 and the Lower Appellate Court has gravely erred by attaching presumption under Section 114 of the Evidence Act to the alleged postal certificates Ex.D-3 and D-4? (iv) Whether the Ld. Sub Judge Ist Class has rightly passed the preliminary decree on the ground that all the partners including the defendants had signed the income tax returns for the year 1989-90 and the business of the firm continued till 1991 and the well reasoned findings of the trial Court have been illegally set aside by the Lower Appellate Court by relying upon the alleged U/P.C. under postal certificates Ex.D-3 and D-4 upon which postal seal of M.O. is appended? (v) Whether the Lower Appellate Court has completely overlooked the mandatory provisions of the Partnership Act while allowing the appeal of the defendant as well as while setting aside the judgment of the trial Court vide which a preliminary decree was passed in favour of the plaintiffs-appellants? 6. Counsel for the appellants contends that the first appellate Court, placed reliance upon Certificates of Posting (U.P.C.) receipts Exs.D-3 and D-4 to hold that the firm stood dissolved with effect from 21.11.1988. The first appellate Court failed to consider that the said receipts bear the words "M.O." and were, therefore, receipts issued for a money order. 6. Counsel for the appellants contends that the first appellate Court, placed reliance upon Certificates of Posting (U.P.C.) receipts Exs.D-3 and D-4 to hold that the firm stood dissolved with effect from 21.11.1988. The first appellate Court failed to consider that the said receipts bear the words "M.O." and were, therefore, receipts issued for a money order. It is further contended that Certificates of Posting, can be easily procured and are, therefore, an unacceptable mode of service of notices. Reliance for the latter contention is sought to be placed upon a judgment of a Division Bench of this Court reported as The Panchkula Urban Cooperative Bank Ltd. V/s. State of Haryana and Ors. (1988-3)120 P.L.R. 235. 7. It is further argued that the learned Court below did not take into consideration that the respondents, had appended their signatures on income tax returns, as also on a registration form filed for registration of the firm in the year 1989-90. This fact, in itself, was sufficient to indicate that the firm was in existence after 24.11.1988. It is also contended that even if, it is accepted that the documents Exs.D-3 and D-4 are postal receipts of a notice intending to dissolve the partnership, as the respondents failed to establish service of the notices, upon all the other partners, the firm could not be said to have been dissolved pursuant to the said notice. 8. Counsel for the respondents, on the other hand, contends that no question of law, much less a substantial question, arises for consideration in the appeal. The learned first appellate Court returned pure findings of fact, which do not call for any interference. It is contended that the despatch of a letter, under Certificate of Posting is a prescribed mode for despatching letters and though some judgments have cast a doubt as to the nature of the aforementioned mode, no judgment has held such a mode of service of notice is impermissible in law. It is contended that the documents Exts.D-3 and D-4, record the words "U.P.C." Requisite stamps are affixed thereon and the mere fact that the word "M.O." appears thereon, would not alter the nature of receipts. It is contended that the documents Exts.D-3 and D-4, record the words "U.P.C." Requisite stamps are affixed thereon and the mere fact that the word "M.O." appears thereon, would not alter the nature of receipts. In response to the argument that the respondents affixed their signatures on the Income Tax Returns, as also on the partnership deed, it is contended that as these were statutory requirements, the respondents had no option but to affix their signatures. It is further argued that even if, there was some doubts as to the U.P.C. or the nature of the notice, the findings of fact returned by the first appellate Court, in the absence of any substantial question of law, do not call for any interference. 9. I have heard learned Counsel for the parties, perused the paper book as also the alleged question of law framed by counsel for the appellants. 10. Counsel for the appellants has framed five questions of law. The questions of law as framed by counsel for the appellants revolve around the date of dissolution of the partnership, namely; whether the partnership stood dissolved on 21.11.1988, as held by the first appellate Court or on 21.4.1991, as held by the trial Court. A perusal of the pleadings, the evidence adduced, the judgments of the learned Courts below, as also the record, in my considered opinion, does not warrant interference in the judgment and decree passed by the first appellate Court. No question of law, much less a substantial question of law, arises for adjudication. The date of dissolution, of a partnership deed is a pure question of fact. 11. The contention raised by counsel for the appellants that the learned trial Court should have discarded the U.P.C. receipts, cannot be accepted. U.P.C. is an accepted mode of postal communication and can only be discarded, if a party establishes that the receipt was obtained by fraud. No such evidence is available on record. The receipts Exs.D-3 and D-4, bear the words "U.P.C." Requisite stamps, as prescribed, have been affixed thereon. Mention of the word "M.O., in my considered opinion, is insufficient to discard these documents. The first appellate Court, considered these factual contentions and rightly discarded them. No such evidence is available on record. The receipts Exs.D-3 and D-4, bear the words "U.P.C." Requisite stamps, as prescribed, have been affixed thereon. Mention of the word "M.O., in my considered opinion, is insufficient to discard these documents. The first appellate Court, considered these factual contentions and rightly discarded them. The next contention that a Division Bench of this Court in the Panchkula Urban Cooperative Bank Ltd. (supra) has held that communication of notices by U.P.C. is an unacceptable mode of postal communication, is not borne out from the aforementioned judgment. The said Judgment, doubted the correctness of the U.P.C. receipts and did not hold that a notice issued by U.P.C. is to be disregarded. The next contention, namely; that the respondents appended their signatures on income tax returns, as also on a registration form, for the year 1989-90, in my considered opinion, does not detract from the validity of the notices Exs.D-3 and D-4, Sections 45 and 47 of the Indian Partnership Act, 1932 were rightly considered by learned first appellate Court, while discarding the arguments. I find no reason to differ with the findings returned by the learned appellate Court and as no question of law, much less a substantial question of law arises, the present appeal is dismissed.