(1.) This regular second appeal presented by the plaintiff arises out of a preliminary decree for dissolution of partnership and rendition of accounts passed by the trial Court and affirmed by the Senior Sub Judge, Ambala, on appeal.
(2.) Plaintiff Mansa Ram alleges that in June, 1952 he and defendant Tej Bhan orally entered into a partnership, the object of which was to carry on the business of supplying bajri, ballast, shingle and stone-boulders etc. to the Public Works Department. The Partnership was styled as Messrs Mansa Ram Tej Bhan, 4 Rajas Road, Dehra Dun, and the business done, was of tendering and executing contracts for supply of bajri to various branches of the P.W.D. The defendant invested Rs. 13000/- as his contribution and the plaintiff's investment amounted to Rs. 4,000/- only. Plaintiff contended that the share of the parties in the profit and loss of the firm was to be borne by the patties equally despite the difference in the capital contribution. The partnership functioned at Mubarikpur and Chandigarh and the supply of bajri was from the bed of driver Ghaggar. The plaintiff alleged that the defendant being invalid could not personally work in the partnership business and did not provide for the service of a representative on his behalf. For the supply of bajri a tender was given by the parties firm on 10th June, 1952 which was accepted by the P.W.D. Punjab on 16th June, 1952. This business continued till 27th January, 1953 for about eight months. The terms of the partnership not having been reduced to writing, disputes arose regarding its conditions. It is stated that on 26th November, 1953, there was a meeting of the partners at Dehra Dun but as their differences could not be amicably settled, the defendant on 27th of February, 1953 visited the work at Chandigarh, and in the absence of the plaintiff and his son Dr. Sat Parkash, removed the account books and relevant papers relating to the business of the firm on the pretence that he wanted to go through them. On 27th of February, 1953 by letter P.W. 2/1 addressed to the Punjab National Bank, Kalka, the defendant instructed the Bank not to allow any withdrawals from the current account of the firm till further instructions. Instructions to similar effect, were sent to the Imperial Bank, Ambala City, by letter P.W. 1/1 dated 27th February, 1953 and also to the Imperial Bank Hissar, by letter PW 1/1 dated 19th of March, 1953. A recriminatory correspondence was also exchanged between the parties. On 11th of March, 1953, a notice was sent on behalf of the plaintiff to the defendant, complaining that the latter did not attend to the business on account of being invalid that he had removed the account books and other records of the firm and had stopped operation of the accounts in the Banks. Plaintiff's counsel in Ex P. 1 also wrote, "You are further informed that my client is continuing the supplies to the department: in spite of all your obstruction, and shall continue to do so, unless some legal difficulties arise on account of your illegal action, for which you alone shall be responsible and you are informed that my client shalt be entitled to be compensated for working the contract without your co-operation." Ex. P/3 is the reply sent on behalf of the defendant to the plaintiff, stating inter alia, that the share in profit and loss had been agreed to be in proportion to the investment, i.e. three to one and that the stamp paper for drafting the partnership agreement was purchased in Dehra Dun in the month of June, 1952, but it could not be drafted as the plaintiff stated that it had been lost. It was denied, that the working had not been attended to personally by the defendant, owing to his ill-health. The defendant accused the plaintiff of having resiled from the original terms, and for insisting upon new terms, which were not acceptable to the defendant. The defendant in the end stated, that he was not willing to work with the plaintiff in partnership, unless proper deed was executed within a week. By notice Ex. P.4 dated 7th April, 1953, the plaintiff's counsel averred, that the profits were to be shared hall and half regardless of the actual amount contributed. The plaintiff's counsel further stated - "Since your client is not willing to work in partnership with my client, therefore, the partnership stands dissolved from this date, and your client is now called upon to render accounts of the partnership within ten days of the receipt of the notice, failing which a suit shall be filed against him for rendition of accounts at Ambala Courts wherein the partnership worked. Ex.P.5 dated 9th of April, 1953, is a reply sent on behalf of the defendant to the plaintiff and the following among others, are the passages, which deserve mention :
"* * * * (1) That in spite of the aforesaid notice you L. Mansa Ram have refused by your conduct to execute the partnership agreement. (2) That you L. Mansa Ram have contrived to get the contract which had been originally taken out jointly by yourself and my client, altered in the name of M/s. Mansa Ram & Sons, after receipt of my client's notice aforesaid. (3) That the department quite illegally effected the said transfer, without the knowledge and consent of my client about which separate action is being taken by my client. * * * *"
(3.) The defendant then called upon the plaintiff to execute a proper deed of partnership, on terms and conditions mutually agreed upon, as mentioned in the defendant's notice, dated 14th March, 1953, Exhibit P.3 within a week from the receipt of the notice Exhibit P.5. On 20th of April, 1953, the present suit was instituted by the plaintiff. The defendant in his written statement denied the various allegations of the plaintiff as detailed above, and averred, that the partnership had been entered into for carrying on the business of supplying bajri only to the P.W.D., and the conditions of partnership were, that the tenders were to be filed in the time of Mansa Ram, Tej Bhan and the accounts were to be opened in the banks, in that name. The defendant would invest 3/4th as against the plaintiff's investment of 1/4th and that, the shares of the profit and loss would be in the ratio of 3 to 1 respectively. The defendant also alleged that the amount of investment of each of the partners was to carry interest at 6% per annum to the extent of Rs. 10,000/- and for subsequent advance at the rate of 9 per cent per annum. The defendant further contended that till the termination of partnership and rendition of the accounts, neither of the parties would be entitled to carry on separate business of supplying bajri. The defendant admitted having taken possession of the books, and explained his conduct, by stating that had he not done so, it would have been impossible for him to prove the extent of his investment. He also stated that the partnership was continuing and had not been dissolved. He denied that it was a partnership at will, but it was during the full period of the use of the quarry, that his rights would remain uneffected despite the plaintiff having in collusion with the P.W.D. authorities got the name of Mansa Ram and his sons inserted in place of Mansa Ram Tej Bhan.;