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2008 DIGILAW 2101 (PNJ)

Gurdip Kaur v. Jaswant Kaur Virk

2008-12-11

KANWALJIT SINGH AHLUWALIA

body2008
JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral).:-The findings of two Courts below are being assailed on the ground that the plaintiff could not seek winding up of partnership business and pray for the recovery of amount on basis of partnership deed dated 14.6.1988 on the following grounds:- a) That the partnership deed was not registered; b) That suit was barred by limitation; c) That ingredients of Section 4 and 6 of the Partnership Act, 1932 are lacking and, therefore, partnership could not be invoked. 2. Two Courts below have taken the evidence of DW.2 Makhan Singh, husband of defendant No.2 into consideration that he had admitted execution of partnership deed Ex.P2 in cross-examination. The Courts further held that rent petition was filed by the plaintiff and, therefore, two cheques amounting to Rs.20,000/- and Rs.5,000/- have been paid as compensation for the existing balance in the nursery. Claim of the plaintiff was that she is to be paid as per partnership deed upto March 1990 or till the land was actually acquired by the Government. It is not disputed that the possession of the land has been taken by the Government in the year 2007. Having noticed the contention of learned counsel for the appellant/defendant in the present regular second appeal, it will be apposite here to notice brief facts of the case. 3. It was pleaded by plaintiff Jaswant Kaur that she had entered into partnership on 14.6.1988 and it was agreed that defendant No.1 shall run a business of Nursery on the piece of land situated in the revenue estate of Manimajra. The Nursery was to be run under the name and style of Defence Nursery. Clause 4 and 5 of the partnership deed, reproduced in the grounds of appeal, read as under:- 4. That however, party No.1 shall be entitled to have lump sum amount on monthly basis, to be her share out of the said business, in the manner hereunder mentioned. a) Rs.1750/- per month for the Ist year (1.7.88 to 30.6.8 b) Rs.2000/- per month for the next two years (1.7.89 to 30.6.9. c) Rs.2500/- per month for the next two years (1.7.91 to 30. a) Rs.1750/- per month for the Ist year (1.7.88 to 30.6.8 b) Rs.2000/- per month for the next two years (1.7.89 to 30.6.9. c) Rs.2500/- per month for the next two years (1.7.91 to 30. d) Rs.3000/- per month for the next two years (1.7.93 to 30.6.9) It is specifically mentioned that party No.1 shall be entitled to this payment of monthly amount indicated above, whether the business is run at a profit or loss, b the 2nd party. 5. That the parties agree that they can run the partnership business at the Ist instance for a period of 7 years, whereafter if the business to be continued, then they shall have to execute a new partnership deed on such terms and conditions which may be agreed to between them”. 4. The plaintiff raised a claim that the appellant/defendant has not paid the agreed amount w.e.f. April 1990 inspite of repeated demands and requests. The appellant/defendant filed written statement and raised preliminary objections that suit is time barred; plaintiff has no locus standi to file the suit; no cause of action has accrued to the plaintiff; and the suit is barred by principles of estoppel. Furthermore, suit is barred under Section 69 of the Partnership Act and the suit was malafide. On merits it was stated that the defendant was running a Nursery as Proprietor. It was further stated that the plaintiff has nothing to do with the business of defendant No.2 and document dated 14.6.1988 is not a partnership deed. It is an illegal and void document. No amount is to be paid as the rent for the use of agricultural land for Nursery purposes. The respondent/plaintiff never acted upon the document dated 14.6.1988. It was further stated that in 1988 when appellant/defendant took the land for Nursery purpose from the respondent/plaintiff a sum of Rs.20,000/- was paid in lieu of purchase of entire stock of plants. Another cheque of Rs.5,000/- was also issued in favour of the respondent/plaintiff. 5. Defendant No.2, husband of the plaintiff appeared as DW.2 and admitted execution of partnership deed dated 14.6.1988. 6. Another cheque of Rs.5,000/- was also issued in favour of the respondent/plaintiff. 5. Defendant No.2, husband of the plaintiff appeared as DW.2 and admitted execution of partnership deed dated 14.6.1988. 6. Mr.G.S.Punia, Advocate, appearing for the respondent/plaintiff has stated that when eviction petition under the Rent Act was filed, a categoric stand was taken by the appellant/defendant that they are bound by the partnership deed dated 14.6.1988 and, therefore, in the present suit they are barred from saying hat partnership deed cannot be relied upon. 7. Learned trial Court held that DW.2 Makhan Singh admitted execution of partnership deed Ex.P2 in his cross-examination. Acquisition of the land was stayed by this Court. The Court further held that appellant/defendant No.1, wife of DW.2 Makhan Singh, came in possession of the Nursery on basis of partnership deed Ex.P2. It further held that as per Clause 4, according to rate specified therein, plaintiff is entitled to amount. The argument that since land had been acquired, the rights and claim of the plaintiff stand extinguished was not accepted by learned trial Court. Learned trial Court further held that as per partnership deed dated 14.6.1988 from April 1990 to 30.11.1993 appellant/defendant is in arrears and, therefore, the plaintiff is entitled to the amount for every month. Therefore, the suit is within limitation. 8. Mr. V. Ramswaroop, Advocate, appearing for the appellant/defendant has read Section 69(3) of the Partnership Act, 1932. As per Section 69(3)(a), the suit is maintainable as dissolution was being enforced in form of winding of the partnership deed. This has been so held by learned lower Appellate Court. Learned lower Appellate Court further held that document dated 14.6.1988 is a valid partnership deed and essentials of Sections 4 and 6 of the Partnership Act, 1932 stand proved. It further held that simply because respondent/plaintiff was entitled to have a lump sum amount on a monthly basis to be her share in the business, it cannot be said that no partnership deed was executed. The Court further recognized the right of plaintiff to recover the amount as per the partnership deed Ex.P2. The Court had rightly held that Section 69(3)(a) & (b) of the Partnership Act is exception to the prohibition contained in Section 69 (1) & (2) of the Partnership Act. 9. The evidence has been meticulously examined by the two Courts below. Concurrent finding of fact has been recorded. The Court had rightly held that Section 69(3)(a) & (b) of the Partnership Act is exception to the prohibition contained in Section 69 (1) & (2) of the Partnership Act. 9. The evidence has been meticulously examined by the two Courts below. Concurrent finding of fact has been recorded. This Court cannot do re-appraisal and re-appreciation of the evidence. The contentions raised before me that Section 69(3)(a) of the Partnership Act, 1932 is not available to the plaintiff, cannot be accepted in view of the facts and circumstances of the case. No substantial question of law arise. Hence, the present appeal is dismissed. ------------------