VALI VENKATASWAMI Vs. GANNABATHULLA VENKATASWAMI
HIGH COURT OF MADRAS
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Satyanarayana Rao, J. -
(1.) This is an appeal against the decision of the District Judge, West Godavari, confirming the preliminary decree for dissolution of a partnership between the plaintiff and the defendants.
(2.) Under a deed of partnership dated 24-1-1948 Ex. B. 4, the plaintiff and defendants entered into a partnership to erect, establish and run a cinema in the site which was obtained on lease. The share of the plaintiff in the partnership was four annas, defendant 1 four annas, defendants 3 and 4 four annas, defendant 2 three annas and defendant 5 one anna. The deed of partnership constituted defendant 1 the Managing partner, who has to look after the erection of the cinema) and also after it was completed to run the business. The present suit for dissolution was instituted by the plaintiff on 10-1-1949 before the construction of the building was completed and the cinema was opened. In fact, the cinema began to work actually from 5-6-1949. The grounds on which the plaintiff seeks dissolution are contained in paras 6 and 7 of the plaint. The main charges were firstly that the Managing partner, contrary to the provisions in the partnership deed, retained in his hands more than Rs. 200/- in cash, secondly that no meeting was ever held after the deed of partnership was executed on 24-1-1948, thirdly that in spite of repeated requests of the plaintiff, defendant 1 refused to show him the accounts, and fourthly that there was no resolution as required by the deed of partnership en the question whether the cinema was to be leased or the cinema was to be worked personally by the partners. The defendants, of course, denied these and also raised various contentions regarding the maintainability of the suit.
(3.) Four issues were framed in the suit and the main questions in controversy between the partners are covered by issues 2 and 3. It was contended that as the business was to be carried on for a fixed period of ten years, the plaintiff was pot entitled to claim dissolution and that, in any event, if he was entitled to go out of the partnership, his only remedy was to sell his -share at a valuation as specified in Clause 22 of the partnership deed; in other words, that he was not entitled to take advantage of Section 44, Partnership Act and claim dissolution through court. These contentions were overruled by the trial Court and it was found that the grounds on which the plaintiff came to Court were established. It was also further found that there were several acts of malfeasance and misfeasance after the business was started, since the institution of the suit. A decree for dissolution was granted by the learned Subordinate Judge. This decision was confirmed on appeal by the learned District Judge and his conclusions are contained in para 33 of his judgment and he found that the allegations in the plaint regarding malfeasance and misfeasance of the managing partner were sufficiently established and that all the partners acted contrary to the terms of the deed of partnership. Unfortunately, both the Courts have not kept the distinction between the grounds of dissolution upon which the plaintiff came to Court and the conduct of the partners since the institution of the suit and this has led to some confusion. The learned appellate Judge instead of discussing each point separately and recording his finding, has merely adopted the easier method of stating that he agrees with the conclusions of the learned Subordinate Judge contained in paras 13 to 19. This sort of disposal, no doubt, is not very satisfactory but on that ground I am not inclined to reverse the decision of the lower appellate Court as it is an affirming judgment.;
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