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2010 DIGILAW 476 (CAL)

Tanima ghosh v. Gita Rani Ghosh

2010-05-05

PATHERYA

body2010
JUDGMENT:- Patherya J: In a partition and administration suit this application has been filed by the plaintiffs seeking closure of the business of Satya Narayan Mistanna Bhandar at 150, Bipin Bihari Ganguly Street, payment of sums and partition of premises no.150, Bipin Bihari Ganguly Street, Kolkata. The case of the petitioners is that the predecessor-in-interest of the plaintiff and the defendants carried on business as partners of Satya Narayan Mistanna Bhandar at 150, Bipin Bihari Ganguly Street and had 1/3rd share in the said business respectively. By an agreement of 4th October, 2002 it was agreed between the original defendant nos.3 and 4 and the heirs of the original plaintiff that the sweetmeat shop will be run for a period of 2 years by rotation by each of the partners and sum of Rs.500/- per day would be paid to the other partners. In 2004 to 2006 the defendant no.4 and her group ran the said shop and in 2006 to 2008 it was the turn of the plaintiff. The plaintiff allowed the defendant no.3 to run the said shop during her period and was entitled to Rs.500/-per day. The said defendants had not paid sums as per the agreement. In fact the said business is run illegally without any profit shown and without any licence. The said is detrimental to the partners as the said business does not yield any income. Therefore, equity demands that the business be closed. The Joint Receivers have also not been allowed entry and, therefore, the interest of the parties be protected, so also the property and this is the reason for closure of the said business. In fact, the petitioner has paid Rs.69,750/- towards arrear licence fees and is entitled to the said sum and Rs.500/- per day since 4th October, 2008 and as no sum has been forthcoming the business of Satya Narayan Mistanna Bhandar be closed and the joint family property be partitioned. Counsel for the defendant nos.3 and 4 submits that the partition and administration suit was filed for partitioning the immoveable joint family properties, the business was excluded as will appear from the preliminary decree passed on 14th November, 2005. Prayer (e) of the plaint seeks partition of the properties mentioned in the schedules viz. the dwelling house at 35 & 36A, Nabin Chand Boral Lane, 29, Nabin Chand Boral Lane and 150, B. B. Ganguly Street. Prayer (e) of the plaint seeks partition of the properties mentioned in the schedules viz. the dwelling house at 35 & 36A, Nabin Chand Boral Lane, 29, Nabin Chand Boral Lane and 150, B. B. Ganguly Street. The plaint does not seek dissolution of the partnership business nor accounts of the partnership business. In the written statement filed by the defendant nos.3 and 4 it has been specifically pleaded that as the original plaintiff was desirous to sell her share of the joint family assets, they are agreeable to purchase the same subject to valuation. A valuation report has also been filed on 8th May, 2006. Therefore, by virtue of the aforesaid offer a right of pre-emption has been exercised by the defendant nos.3 and 4. As the business is not the subject matter of the suit no order in respect thereof can be passed in this application. Having considered the submissions of the parties, the suit filed is for partition of the immoveable properies mentioned in the plaint. Although a reference has been made to the partnership business of Satya Narayan Mistanna Bhandar which is carried on from 150, B. B. Ganguly Street no dissolution of partnership is sought. Nowhere has it been stated that out of the funds of the joint family the said business was started. It is only in respect of the business of new Satya Narayan Mistanna Bhandar has it been alleged that out of the income of the partnership of M/s. Satya Narayan Mistanna Bhandar the business of new Satya Narayan Mistanna Bhandar was started and that Monoranjan Ghosh, the predecessor-in-interest of the defendant no.3, therefore, could not have an exclusive right in the business of new Satya Narayan Mistanna Bhandar. Nowhere in the partnership deed of 1972, enclosed to G. A. No.1728 of 2009 has it had been mentioned that out of the joint funds the partnership of Satya Narayan Mistanna Bhandar was started. The Original Deed of Partnership has also not been produced. Therefore, there can be no doubt that the partnership business does not form a part of the joint family property and is not the subject matter of the partition and administration suit. The Original Deed of Partnership has also not been produced. Therefore, there can be no doubt that the partnership business does not form a part of the joint family property and is not the subject matter of the partition and administration suit. Accordingly, no order can be passed with regard to the business of Satya Narayan Mistanna Bhandar sought in this application except that the immoveable property of which partition is sought be partitioned by the Commissioner of Partition and for such purposes steps be taken and report be filed in the said suit to expedite partition of the joint family properties. Another reason for not passing an order of closure of the business is that the same will tantamount to eviction of the partnership firm without due process of law and without issuance of any notice which will be contrary to all cannons of law. In view of the aforesaid this application is disposed off. Interim orders granted shall stand vacated. Later: All parties to act on a Photostat signed copy of this Judgment on the usual undertakings.