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2017 DIGILAW 222 (CAL)

Sonali Basak v. Sumon Basak

2017-02-27

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This first miscellaneous appeal is directed against an order being No. 11 dated 20th September, 2016 passed by the Learned Judge, VIIth Bench, City Civil Court at Calcutta in Title Suit No. 103 of 2016 at the instance of the plaintiff/appellant. 2. By the impugned order, the plaintiff’s application for temporary injunction was dismissed by the learned Trial Judge. Hence, the instant appeal was filed. 3. Let us now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the present case. 4. Admittedly, there were two partners in the partnership firm viz. M/s. The Commercial & Railway Stores Company. One of the partners viz. Surojit Basak died during the continuance of the said partnership business. The plaintiff is the widow of the deceased partner. She has filed the instant suit seeking declaration that after dissolution of partnership, the plaintiff along with her son be admitted as partner in the said business in place and stead of her deceased husband. 5. In such a suit, she filed an application for temporary injunction for restraining the defendant their men, agents from creating any third party interest over the business of the said partnership firm and further for restraining the defendant from carrying on partnership business of the said partnership firm. Several other interim reliefs were also claimed in the said application for injunction. Receiver was also sought for over the business of the said partnership firm. 6. The learned Trial Judge dismissed the plaintiff’s said application for temporary injunction by holding, inter alia, that the plaintiff has suppressed some material information about inheritance of the share of the deceased partner in the said partnership business. The learned Trial Judge has also held that as per Section 44 of the Partnership Act, the partnership will be deemed to be dissolved in the event of death of one partner where partnership comprises of two partners only. According to the learned Trial Judge, such dissolution is inevitable even though there is a contrary clause in the partnership deed. Holding as such, the learned Trial Judge dismissed the plaintiff’s said application for injunction. 7. The legality of the said judgement and/or order passed by the learned Trial Judge is under challenge in this appeal at the instance of the plaintiff/appellant. 8. Holding as such, the learned Trial Judge dismissed the plaintiff’s said application for injunction. 7. The legality of the said judgement and/or order passed by the learned Trial Judge is under challenge in this appeal at the instance of the plaintiff/appellant. 8. Let us now consider the merit of the instant appeal in the facts of the present case. 9. Various modes are prescribed for dissolution of partnership under Section 42 of the Partnership Act which runs as follows:- “Section 42.—Dissolution on the happening of certain contingencies— subject to contract between the partners a firm is dissolved— (a) if constituted for a fixed term, by the expiry of that term; (b) if constituted to carry out one or more adventures or undertakings, by the completion thereof; (c) by the death of a partner; and (d) by the adjudication of a partner as an insolvent.” 10. By taking into consideration the provision contained in Section 42 (c) of the said Act, we come to the conclusion that on the death of the one of the partners, the said partnership firm stood dissolved as the partnership agreement does not content any clause that on the death of the one of the partners, his heirs will be inducted as partner in the said partnership firm. 11. Even the consequences of such an agreement has also been considered by the Hon’ble Supreme Court in the case of Mohammad Laiquiddin & Anr. vs Kamala Devi Misra (dead) by Lrs. & Ors. reported in (2010) 2 Supreme Court Cases, 407 wherein it was held that when there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite existence of a clause which says otherwise. It was further held therein that a partnership is a contract between partners and there cannot be any contract unilaterally without acceptance of the other partners. It thus, necessarily follows that even if subsequently a new partnership is reconstituted by admitting the heirs of the deceased partner still then, such a partnership will represent a new partnership between surviving partner and the inducting partner. The old partnership firm cannot be deemed to continue under the partnership agreement. 12. It thus, necessarily follows that even if subsequently a new partnership is reconstituted by admitting the heirs of the deceased partner still then, such a partnership will represent a new partnership between surviving partner and the inducting partner. The old partnership firm cannot be deemed to continue under the partnership agreement. 12. The relief which the heirs of the deceased partner can claim, is provided in Section 46 of the said Act which says that on the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or which representatives according to their rights. 13. Thus, the legal representatives of the deceased partner can at best claim accounts of the partnership which stood dissolved as on the date of death of one of the partners of the said partnership firm and for disbursement of the surplus of profit. 14. In such view of the fact, we hold that the learned Trial Judge did not commit any illegality in refusing to pass the interim injunction in favour of the plaintiff. 15. We thus, hold that the appeal does not deserve any merit for consideration. 16. As such, we decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 17. The appeal is, thus, dismissed. 18. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the injunction application. 19. The application for injunction being CAN 11136 of 2016 is thus, deemed to be disposed of.