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2009 DIGILAW 398 (MP)

ISHWARCHAND JAIN v. SUSHIL KUMAR JAIN

2009-03-30

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE petitioners/defendants being aggrieved by the order dated 10. 4. 2008 passed in Misc. Appeal No. 2/2008 decided by learned Third Additional district Judge (Fast Track) Katni reversing the order dated 17. 1. 2008 passed by fourth Civil Judge, Class-I, Katni in Civil Suit No. 59 A/2007 and granting injunction in favour of the respondent/plaintiff, have filed this petition under Article 227 of the Constitution of India. ( 2. ) THE short facts necessary for disposal of the present petition are that the petitioners and the respondent/plaintiff settled into a partnership business vide partnership deed dated 11. 2. 2003, all the partners agreed to have 25% share in profit and loss. It appears that the present respondent/plaintiff felt aggrieved by conduct of the remaining three partners, therefore, filed the suit for dissolution of the firm/partnership and alongwith the plaint, filed an application for grant of injunction. The defendants appeared in the Court and submitted that the plaintiff had retired from the partnership firm with effect from 30. 9. 2004 and as on the date of the suit he had no right, interest or property in the firm, no injunction could be granted in his favour. ( 3. ) AFTER hearing learned counsel for the parties, the learned trial Court rejected the plaintiffs prayer for grant of injunction but, however, in appeal the Appellate court granted the injunction. It is to be seen that the Appellate Court granted the injunction restraining the defendants from using the name of firm, using its goodwill, its property with a further direction that they shall not transfer or alienate any property and if the plaintiff wants to have inspection of the accounts then the defendants would not cause any hindrance in the matter. ( 4. ) LEARNED counsel for the petitioners submitted that the learned Court below without appreciating the prima facie case, principles of balance of convenience and irreparable injury, has granted the injunction less appreciating that a running business could not be brought to a standstill or a grinding halt. It is submitted by him that the Appellate Court if was of the opinion that the plaintiff has some prima facie case and his interest is to be protected, then instead of bringing the business to a halt, the Court has to put the defendants to terms. ( 5. It is submitted by him that the Appellate Court if was of the opinion that the plaintiff has some prima facie case and his interest is to be protected, then instead of bringing the business to a halt, the Court has to put the defendants to terms. ( 5. ) LEARNED counsel for the respondent/plaintiff, however, submitted that in view of Section 53 of the Indian Partnership Act, a Partner is entitled to pray for an injunction and the Court is obliged to grant such injunction. In the alternative, it is submitted that if the defendants are allowed to proceed with the business then they are likely to create enumerable problems against. the interest of the plaintiff in the last, it was submitted that if the High Court is of the opinion that the injunction as granted by the trial Court could not be granted then the appropriate orders protecting the interest of the plaintiff be passed. ( 6. ) SECTION 53 of the Indian Partnership Act applies to a matter where firm is dissolved and in such a case every partner or his representative may, in the absence of a contract between the partners to the contrary, may restrain every partners from doing particular things. Undisputedly, the plaintiff has come to this Court with a submission that the partnership was not dissolved. The plaintiff, in fact had prayed for a decree for dissolution of the partnership. If the plaintiff himself says that present is not a case after dissolution of partnership then Section 53 would not apply. In a case like present where the plaintiff denies and the defendants assert the fact regarding retirement of a partner, a Court of competent jurisdiction without appreciating the allegations and counter allegations cannot bring the business to a standstill or to a grinding halt. ( 7. ) IN the present matter, the trial Court did not make any effort to look into the issue of balance of convenience and irreparable injury likely to be cause by grant or refusal of injunction. The balance of convenience in such a case would always be in favour of the persons who are running the business. ( 7. ) IN the present matter, the trial Court did not make any effort to look into the issue of balance of convenience and irreparable injury likely to be cause by grant or refusal of injunction. The balance of convenience in such a case would always be in favour of the persons who are running the business. If an injunction is granted against the running business then the mischief of irreparable injury would be suffered more by the persons who have the control of the running business in comparison to the person who is out of the business or who comes with the allegations that he is not being allowed to take part in the business of the. partnership firm. For bringing a running business to a grinding halt a very extra strong case is required to be made out by the plaintiff. ( 8. ) IN the present case, except that the plaintiff is not being allowed to take part in the business of the firm and he is not being shown the account of the firm the plaintiff has nowhere said that for what other reason the business should be brought to an end. ( 9. ) IN our considered opinion, the learned Appellate Court did not really appreciate the dispute in its true perspective and it was swayed away by the fact that the plaintiff was challenging his retirement from the partnership. ( 10. ) TAKING into consideration the totality of the circumstances, we are of the opinion that the order passed by the learned Appellate Court cannot be allowed to stand. It deserves to and is accordingly quashed. However, to protect the interest of the plaintiff, it is hereby directed: (a) the appellants shall furnish solvent surety with their personal undertaking in a sum of Rs. Two lacs before the trial Court within one month from today clearly specifying that in case the suit is decreed and the plaintiff is held entitled to any amount then without any objection they shall pay amount as determined to the extent of Rs. Two lacs; (b) the petitioner shall be obliged to maintain regular accounts of the partnership and they shall also be obliged to furnish the accounts with the trial Court by 15th of each succeeding month. ( 11. ) THE defendants/petitioners shall not transfer or alienate the fixed assets of the partnership firm. Two lacs; (b) the petitioner shall be obliged to maintain regular accounts of the partnership and they shall also be obliged to furnish the accounts with the trial Court by 15th of each succeeding month. ( 11. ) THE defendants/petitioners shall not transfer or alienate the fixed assets of the partnership firm. They however, would be entitled to run the business but without creating any charge against the interest of the present respondent/plaintiff. ( 12. ) THE petition is allowed to the extent indicated above. Petition allowed.