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2016 DIGILAW 753 (CAL)

Goutam Kumar Dutta v. Arun Kumar Dutta

2016-09-27

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Ishan Chandra Das, J. The First Miscellaneous Appeal is directed against the order no. 31 dated 9.12.2011 passed by learned Judge, Bench XI, City Civil Court, Calcutta in T.S. 919 of 2010 where learned Court below while disposing of an application under Order 40, Rule 1 of the Code of Civil Procedure allowed the same on contest and appointed the petitioner and the defendant no. 1 of the T.S. 919 of 2010 as joint receiver of the business under the name and style "Sree Durga Electricals", having its business at shop no. G250 of 22B, Rabindra Sarani, Kol-73. The defendants are the appellants and the plaintiff is the respondent herein. 2. The facts of the case as it emerges from the petition under Order 40, Rule 1 of the Code of Civil Procedure is that the plaintiff/respondent and the defendants no. 1 and 2 of T.S. 919 of 2010 had been carrying on a partnership business by executing a partnership deed on 18.02.1986 under the name and style "Sri Durga Electricals" having its place of business at 22B Rabindra Sarani, Kolkata. Subsequently the defendants no. 3 and 4 have been introduced and a new partnership firm was created by executing a fresh partnership deed dated 01.04.2002, all of them decided to run the partnership business under the same name and style and agreed to conduct the business of electrical goods. The parties to the partnership firm agreed to manage the business of the firm by their mutual consent having share of profit or loss of such business by 20% each, to be calculated as per the financial year. The partners, who happen to be brothers of each other agreed to have remuneration of Rs. 1000/- per month, and to have interest on capital @ 10% per annum. The petitioner being the eldest brother of the parties worked hard for the betterment of the business but the defendants being the younger brothers had no respect for him and since April 2006, the defendants are not allowing the petitioner to look after the day to day business rather they abused him on different pretexts. The defendants are not allowing him to participate in the management of the business but somehow supplied the balance sheet for the financial year 2006-2007 but not thereafter. The defendants are not allowing him to participate in the management of the business but somehow supplied the balance sheet for the financial year 2006-2007 but not thereafter. The plaintiff/respondent (hereinafter referred to as plaintiff) tried to settle the dispute between himself and other partners of the business through the intervention of the well-wishers and family friends but as the defendants/appellants (hereinafter referred to as defendants) were adament althrough, the plaintiff served Advocates notice upon them on 15.01.2010 for supplying the balance sheet of the business w.e.f. 1/4/2007 to 31.03.2008 but instead of supplying the balance sheet, the defendants by serving a counter notice through their Advocate, blamed the petitioner for starting another shop and adverse to the interest of the partnership business, similar to that of the partnership business under the name and style "Sree Durga Electricals" from the fund of the partnership business and the conduct of the defendants made impracticable for him to run the partnership business with the defendants and that prompted him to file the suit for dissolution of partnership firm, accounts and prayed for appointment of a receiver to take charge of the partnership business and to prevent the defendants from doing harm to such business, the same being detrimental to the interest of the plaintiff. 3. The defendants (i.e. the appellants herein) of T.S. 919 of 2010 though failed to file any written objection against the application under consideration but they filed a "supplementary affidavit" to counter the allegations of the petitioner. In the said supplementary affidavit they categorically denied that the petitioner voluntarily stopped taking part in the management of the partnership business since April 2006 for which he was not entitled to any remuneration for non-participation in the joint partnership business. It was further alleged that the dispute between the parties with regard to the subject matter of the suit had been resolved in an amicable settlement and the terms of such amicable settlement was reduced to writing on 21.5.2006. Accordingly the defendants stated that the application under Order 40, Rule 1 of the Code was liable to be rejected the same being misconceived and devoid of any substance. 4. Accordingly the defendants stated that the application under Order 40, Rule 1 of the Code was liable to be rejected the same being misconceived and devoid of any substance. 4. Learned trial Court upon consideration of the claims and counter claims of the parties in the light of the averments of the plaint and the written statement held that it would be just and proper to appoint receiver in terms of the prayers of the application under Order 40, Rule 1 , Code of Civil Procedure appointed the petitioner, defendant no. 1 as joint receivers to run the partnership business on behalf of all the partners on certain terms and conditions noted in the order impugned and thus the petn. u/o. 40 Rule 1 CPC filed by the pltff. was allowed on contest on the above conditions to operate the business of the parties till disposal of the Suit. 5. Questioning the propriety of the said order, the present miscellaneous appeal has been preferred by the defendants of the Original Suit where dissolution of partnership was prayed for as an ultimate relief. 6. Mr. Hirak Mitra, learned senior Counsel appearing for the defendants/appellants herein, at the very outset, drew our attention to the provision of Section 44 (g) of the partnership Act and pointed out that a court of law may take into consideration the events subsequent to the date of the suit which renders it just and equitable for dissolution of partnership. Criticizing the conduct of the plaintiff/ respondent, he urged that the respondent being the managing partner of the firm started a business of identical nature in the name of his wife and son and siphoned money of the partnership business. Relying on a decision of a Division Bench of the Hon'ble Patna High Court in Manilal Bacharlal Sanghvi and another v. Keshabji Pitamber, reported in AIR 1952 Pat 33 , he opined that the Court should not interfere at the suit of a partner who himself is guilty of misconduct. Relying on a decision of a Division Bench of the Hon'ble Patna High Court in Manilal Bacharlal Sanghvi and another v. Keshabji Pitamber, reported in AIR 1952 Pat 33 , he opined that the Court should not interfere at the suit of a partner who himself is guilty of misconduct. Clarifying the provisions of Order 40, Rule 1 of the Code of Civil Procedure, and with reference to a decision of the Hon'ble Apex Court in Firm Ashoke Traders and another v. Gurumukh Das Saluja and Ors., reported in (2004) 3 SCC 155 , he submitted that the most basic principle governing the discretion of the Court in appointing a receiver is whether it is "just" and "convenient" to do so and further opined that the appointment of a receiver in a running business cannot be taken up casually, the same having serious impact on the partnership business. Further relying on a decision of the Hon'ble Supreme Court in Gattulal v. Gulab Singh and another, reported in AIR 1985 SC 547 , he further urged that –' a Court will not aid to those who can be shown to have remained quiet in the hope of being able to evade responsibility'. 7. Mr. Jayanta Mitra, learned Advocate General in course of his impressive argument drew our attention to the averments of the plaint as contained in paras 5 to 10 of T.S. 919 of 2010 and explained what prompted his client to pray for receiver to look after the partnership business particularly when the plaintiff/respondent found the defendants/appellants having adament attitude in excluding their co-partner from his rightful interference in the management of the partnership business and urged with a confident tune that the Court should interfere for the protection of the partnership business when the situation so demands. While supporting the order impugned, learned Counsel for the respondent herein drew our attention to a decision of Punjab and Haryana High Court in Nihalchand Munnalal and others reported in AIR 1968 P&H 523 , and pointed out as quoted below:- "13. A receiver may be appointed where there is a reasonable apprehension to the property assets or incomes are in danger of being injured, misused or dissipated, the property should be preserved from loss or wastage so that the final relief may be effective. A receiver may be appointed where there is a reasonable apprehension to the property assets or incomes are in danger of being injured, misused or dissipated, the property should be preserved from loss or wastage so that the final relief may be effective. The appointment of a receiver in such circumstances does not result in harassment to a party but protects the rights of the injured party by keeping the property intact." Relying on a decision of the Hon'ble Madras High Court in T. Krishnaswamy Chetty v. C. Thanguvelly Chetty and Ors. reported in AIR 1955 Mad 430 , learned Counsel for the plaintiff/respondent also urged that the responsible duty has to be discharged by the Court when the 5 requirements embodied in the words 'just and convenient' in Order 40, Rule 1 are fulfilled by the facts of the case under consideration and the said 5 requirements are noted below:- "(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. (2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. (3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. (4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in Medio', that is to say, in the enjoyment of no one. And (5) The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame." 8. To further his argument learned Counsel for the plaintiff pointed out with reference to the Audited balance sheets at page 31 and onwards (Annexure-A) and submitted that the plaintiff being the partner of the business having 20% share in his credit has been denied his legitimate share of profit, his remuneration of Rs. To further his argument learned Counsel for the plaintiff pointed out with reference to the Audited balance sheets at page 31 and onwards (Annexure-A) and submitted that the plaintiff being the partner of the business having 20% share in his credit has been denied his legitimate share of profit, his remuneration of Rs. 12,000/- per annum was not paid though it was shown in such balance sheet. Learned Counsel for the respondent in course of his impressive argument confidently urged that the appellants herein being the partners of the disputed firm has been denied by the other partners from taking part in the business of the firm causing deprivation of his legitimate share in the partnership business. If we consider the facts and circumstances of the case in the light of the observations of different Hon'ble Courts including the Hon'ble Apex Court, as noted earlier it appears to us that learned trial Court while disposing the application under Order 40, Rule 1 of the Code of Civil Procedure considered that it would be 'just and convenient' to appoint receiver in respect of the partnership business and she appointed the plaintiff and the defendant no. 1 as joint receivers to run the said partnership business on certain terms as referred to in the order impugned. 9. Here the relationship between the parties, denial of the defendants/appellants herein in exercising the power to manage the partnership business or to take active role of the plaintiff/respondent etc. have not been seriously disputed. The materials on record also suggested that learned trial Court with a view to protecting the partnership business appointed the plaintiff and the defendant no. 1 as receivers to look after the day to day affair of the business finding the same to be 'just and convenient' and in doing so some guide lines were given by learned trial Court, in the order impugned. In the given facts and circumstances of the case as discussed above and in the light of the decisions quoted earlier, we are unable to take a different view rather we firmly conclude that learned trial Court was fully justified in doing so. 10. Hence, we do not find any merit in the present appeal which stands dismissed. The order no. 31 dated 9.12.2011 passed by learned Court below is hereby affirmed. 11. 10. Hence, we do not find any merit in the present appeal which stands dismissed. The order no. 31 dated 9.12.2011 passed by learned Court below is hereby affirmed. 11. Since the appeal is disposed of, the CAN applications being infructuous are deemed to be disposed of. 12. There will be no order as to costs. 13. The urgent photostat certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible. Jyotirmay Bhattacharya, J. - I agree. Appeal dismissed.