K.V. Limaya vs J.K. Watve and Others

Ross, J.—This is a appeal from the decision of the District Judge of Manbhum affirming the decision o the Subordinate Judge of Purulia dismissing the Plaintiff''s suit for dissolution of partnership and for takine partnership accounts. The Plaintiff is one K.V. Limaya. There are three Defendants J.K. Watve, Nilkanal Mandal and Durges Chandra Bhattacharji.

The plaintiff alleges that in the beginning of the year 1912 he took Defendant No 1 as a partner in a atone quarry business at Chawka on certain terms. Defendant No. 1 carried on the business at the quarry from the beginning of 1912 to the 24th January 1913. A sum of Rs. 4,921-6-5, which had been found a due to the Plaintiff from Defendant No. 1 n respect of a previous business in connection with a quarry at Chandauri, was included in the business of the Chawka quarry and all the goods and stack of the Chandauri quarry as well as the advance mida in respect thereof ware included in the Chawka business, and Defendant No. 1 admitted his liability for the afores lid sum. Then in January 1913 Plaintiff and Defendant No. 1 took into partnership Defendant No. 2 on certain terms, and t his business continued until December 1915 when it closed. The Defendants were given an opportunity to sub nit accounts in the beginning of 1916, but did not do so, and therefore Plaintiff had to being this action. He did not admit that Defendant Mo. 3 was a partner but added him as a Defendant because it had been stated in the written statements of the Defendants in a previous litigation that Defendant No. 3 was also a partner in the business. Defendant No. 1 admitted in his written statement that the Plaintiff and he worked as partners in the business which began from 1912. He also alleged that Defendant No. 3 was a partner. Defendant No.2 denied that Defendant No. 3 was a partner but admitted that on certain terms having been settled, he himself joined the business at the Chawka quarry in the month of January 1913 and that the business was closed in December 1915. Defendant No. 3 denied that he was ever a partner in the business.

The learned Subordinate Judge dismissed the suit on the preliminary grounds that it was bad for multifariousness and was not maintainable. He found that the Chandauri concern was a separate business from the Chawka business, and that the business which was started in 1912 was between the Plaintiff and Defendant No. 1 and Defendant No. 3 and that this was a second and separate business: and that a third business was started in 1913 with the Plaintiff and Defendant No. 1 and Defendant No. 2 as partners which came to an end in October 1913 and hat a fresh start was made in 1914.

The learned District Judge came to much the same conclusion. He held that the claim for the sum of Rs. 4.900 involved going into the accounts of the Chandauri business in which one Baroda Ganguli who was not a party had been a partner and with which Defendants Nos. 2 and 3 were not concerned. He further held that no a tual partnership in the business in 1913 had been made out between Defendant No. 1 and Defendant No. 2; and finally he held that it was impossible to hold that the partnership continued during the period of the absence of Defendant No. 1 from October 1913 to May 1914. Therefore taking the same view as the learned Subordinate Judge that three or four separate business concerns bad been brought together in one suit, he dismissed the suit.

On the view which the learned District Judge took of the case he ought to have given the Plaintiff an opportunity to amend his plaint, if necessary, and to elect which business he desired to be terminated and accounted for. But the plaint is perfectly definite that the Plaintiff desires a dissolution of the partnership formed to carry on the business at the Chawka quarry. This business came into existence in the beginning of 1912 and continued, though the partners were not the same throughout, until December 1915. The mere fact that one of the assets of the firm is said to have been a sum of Rs. 4,900 alleged to have been due by Defendant No. 1 to the Plaintiff on account of a previous business enterprise is no reason for not dissolving the present partnership and taking the accounts. It is a matter of the details of the account; if the item is not proved, the Plaintiff will not get credit for it. Consequently the fact that this item is said to have been brought over from an earlier business is in my opinion no reason for dismissing the present suit.

Then with regard to the finding that no actual partnership in the Chawka business is made out between Defendant No. 1 and Defendant No. 2. it is not clear what the meaning of the learned Judge is. What is alleged by the plaintiff is a partnership1 between himself and Defendant No. 1 and Defendant No. 2. Defendant No. 1 does not deny the partnership, and Defendant No. 2 admits that he joined the business. I do not understand why the relations of Defendant No. 2 with the Plaintiff should be investigated separately from those between the Plaintiff and Defendant No. 1. The mere fact that a second partner was taken in, in January 1913 is no reason for splitting up the suit into two. That partnership was the partnership which it was sought to dissolve and the fact that the partners have varied during the term of the business cannot affect the maintainability of the suit.

Then with regard to the question whether the partnership continued during the absence of Defendant No. 1 for six months; what the Defendant pleads is that he asked the Plaintiff to render accounts of the business for 1912 and 1913; but the Plaintiff did not do so; whereupon the Defendant gave up all connection with the business and went aware to his native place in October 1913. After some time, however, he came back again. Now, this is not how a partnership can be dissolved. The learned District Judge thinks that the absence of Defendant No. 1 and the fact that he was not shown any regular accounts during his absence nor was treated as a partner are sufficient to show that the partnership did not continue. But there is no dissolution of partnership either alleged or held to be proved, and the facts which the learned District Judge refers to, do not in themselves constitute a dissolution of partnership. On all the grounds on which this suit has been dismissed, I am unable to agree with the view taken by the Courts below.

I would allow the appeal and set aside the decree of the Court below and remand the suit for trial. Costs will abide the result.

Jwala Prasad, J.

I agree. I would like to add a few points. The Courts below have thrown out the suit on the ground that it was bad on account of multif ariousness of causes of action and misjoinder of parties: In other, words, they say that the Plaintiff has joined many causes of action arising out of several businesses set forth in the plaint and that the parties impleaded as Defendants in the case were not concerned in all those transactions. It seems to me that there has been misapprehension intheminds of the Courts below as to the real scope of the suit. They seem to have confused the history of facts given in the plaint as giving rise to the cause of action of the Plaintiff with the actual cause of action and the reliefs set forth in the plaint. No doubt the Plaintiff gives the history of the partnership business from the year 1911, but his suit relates entirely to one partnership which went by the name of Chawka, and he seeks a distortion of the said partnership and an account with respect to that and that alone. Para. 7 of the plaint is explicit upon the point. The Plaintiff in that paragraph states "that after the aforesaid partnership business was closed, the Defendants were given opportunity to submit final account within one month from the beginning of 1916. Finding that opportunity the Defendants have realized and appropriated a large amount of the business, which was due from others up to 2nd February 1916 and have also appropriated many Articles which were in stock. Hence the cause of action for this suit accrued after the aforesaid business was closed, gradually from fie beginning of 1916 to the end of February of the said year at Chawka, within the jurisdiction of this Court." In para. 10, wherein Plaintiff formulates his claim, he clearly states that "the Plaintiff is entitled to obtain a decree for the amount which will be found due to him from the Defendants after the ascertainment and determination of the terms of the contract which existed between the pa-ties in regard to the partnership business and after the adjustment of accounts." These two paragraphs read together make it certain that the Plaintiff''s cause of action is one which arose after the business at Chawka was closed from the beginning of 1916 to the end of February of that year and the claim of the Plaintiff as regard accounts and dissolution is with respect to that business alone. Similarly the relief refers entirely to one partnership business and that obviously is the Chawka business. Therefore there was only one cause of action: the Plaintiff has based his case on one cause of action and with respect to the dissolution of one partnership business only. I fail to understand how the Courts below have come to the conclusion that the Plaintiff has joined several causes of action together. The other concerns which he longer exist may have to be looked into with a view to find out the rights and liabilities of the parties concerned with respect to the Chawka business. That would not necessarily mean that the Plaintiff claims a dissolution of all these partnership concerns and an account with respect to them, for they, according to the case of the Plaintiff and as held by the Courts below, have all ceased to exist, whether they were separate business concerns or were merged in the Chawka business. In para. 11 of the plaint the Plaintiff gives reason why he made Defendant No. 3 party to the suit. He does not admit him to be a partner but one of the Defendants did state that he was a partner. The Plaintiff anticipated this and impleaded Defendant No. 3 in the suit to avoid any objection on the part of the Defendants. If he had not done this, there would have been an objection on the part of the Defendants. There is therefore also no misjoinder of parties.

I therefore agree with the order proposed by my learned brother.