- (1.) S. R. Singh, J. Defendants to Suit No. 385 of 1991 have challenged the appointment of Receiver made on an application moved on behalf of the plaintiff-Respondent Anguri Devi under Order XL, Rule 1, C. P. C. The suit was instituted essentially for the relief of accounting and winding up of "m/s. Goyal Brothers" which according to the plaintiff was a partnership firm. The partnership, according to her, was at Will. The relief was founded on the plaint allegations that the plaintiff was the owner of a shop situate at Holi Gate, Mohalla Tilakdwar in the town of Mathura; that she agreed to launching business in the said shop in partnership with the defendants on terms" and conditions encapsulated in the partnership deed dated 1. 2. 1973 executed with the consent of all the partners and that no rent would be payable to the plaintiff for the shop but she would get 10% of the net profit accruing from the business without sharing the losses incurred therein. It was further alleged in the plaint that the defendants who according to the agreement were actually managing and carrying on the business failed to furnish proper accounts thereof whereupon the partnership was terminated vide notice dated 25. 2. 1988 and the firm dissolved vide notice dated 10. 8. 1991 and since the defendants failed to render Accounts despite termination of the partnership and dissolution of the Firm hence the suit.
(2.) THE plaintiff-respondent moved an application for interim injunction restraining the defendants from selling any goods from the shop in question and from removing the goods either from the shop or from the godown and an application for appointment of Receiver to take possession of the entire business including the shop and the godown thereof and to prepare an inventory of the entire goods, books of accounts, bills, vounchers, returns, Raseed Bahi, pass books, sales files relating to Sales-tax etc. The trail court granted ex parte injunction vide order dated 3,9. 1991 which was set aside in appeal and a modified version of injunction order was issued to the effect that the petitioners would furnish security to the tune of Rs. 1 lac half of which would be cash security in order to ensure speedy disposal of injunction application and the application for appointment of Receiver. The appellate order dated 3. 10. 91 was impugned in a writ petition which was dismissed by order dated 22. 10. 91 subject to certain observations/directions as embodied therein. It is not within the domain of dispute that the petitioners have since furnished adequate/requisite security to the extent of Rs. 1 lac before the trial court and the same was accepted on 16. 11. 91. The application for appointment of Receiver was resisted by the petitioners on grounds inter alia that the plaintiff was not a partner of the Firm namely, M/s. Goyal Brothers and in fact she had let out her shop' on consideration of 10% profits in lieu of rent accruing from the business. The deed dated 1. 2. 73 was albeit, ostensibly a partnership but in practical terms, it was an agreement for letting out the shop which was within the purview of the U. P. Urban Buildings (Regulation of Rent, Letting and Eviction) Act No. 13 of 1972. According to the petitioners, they scrupled making investment in the business because of the reasons that under the agreement dated 1. 2. 73, the plaintiff had a right to terminate the agreement and take possession of the shop and hence, an amended deed dated 23. 11. 1978 was executed with the consent of the parties, according to which, if the plaintiff wanted to dissociate herself from the partnership she would be entitled to get l/12th of 10% of the last three years' profit by way of rent and the shop and other goods etc. would remain in possession of the petitioners.
(3.) THE trial court appointed, vide order dated 5. 8. 1995, Sri R. K. Agarwal Advocate as a Receiver investing him with the authority to take possession of the goods, bills, vouchers, Raseed Bahi and other papers pertaining to business and to prepare inventory thereof and produce the same before the court. THE appellate court, vide order dated 5. 9. 95, modified the order passed by the trial court and appointed Joint Receivers comprising a nominee of the plaintiff and the three defendants. THE joint Receivers were directed to maintain proper account of the assets of the partnership, both capital and liquid, including the income from the business and submit quarterly returns to the trial court pending conclusion of the suit. THE nominee of the plaintiff, proceeds the order, would get Rs. 2,500 per month as remuneration which was to be borne equally by the plaintiff and defendants subject to the ultimate adjustment at the time of final accounting pursuant to the decree that may be passed in the suit. Aggrieved, the defendants tiled the instant petition. I have heard Sri K. N. Tripathi, learned counsel appearing for the petitioners and Sri R. P. Goyal, appearing for the respondent No. 3.;