ASHOKE KR. SEN AND ANOTHER Vs. TAPAN KR. SEN AND ANOTHER
HIGH COURT OF CALCUTTA
Ashoke Kr. Sen And Another
Tapan Kr. Sen And Another
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S. N. Mallick, J. -
(1.)This Revisional Application under Sec. 115 of the Code of Civil Procedure has been preferred by the petitioners 1 and 2 who are the defendants in O.S. Suit No 136 of 1994 pending in the First Court of the Assistant District Judge, Midnapore against the order No. 17 dated 21-11 -94 passed in the said suit by the learned Assistant District Judge. By the impugned order the learned Assistant District Judge allowed the plaintiff/opposite party's petition dated 1 -10-94 and directed the defendant petitioners "either to join with the plaintiff petitioners and open the lock and key of the firm within seven days" from the date of the order or to hand over the key to the plaintiff within the said period. It has been further ordered by the learned Assistant District Judge that in spite of the said order if the defendant opposite parties do not open the lock and key of the business premises the plaintiff OP No 1 will be at liberty to draw the attention of the Court i.e. the Court below and the said Court will then, if it is necessary, order to execute the aforesaid order through its agent. The Revisional Application has been contested by the OP No. 1 who has lodged a caveat.
(2.)The admitted facts in this case are as follows :
(3.)The OP No. 1 and the petitioners who are respectively the brother and mother of the former run a partnership business of a Bakery and other allied articles viz. Biscuits, Lozens etc. under the name and style of M/s. Sen Bakery on the basis of a partnership deed dated 19-4-76. The firm was duly registered under the Partnership Act. There was a further modification of the said deed or partnership by another deed of agreement entered into by the aforesaid three partners dated 1-9-92. Under clause 1 of the second deed dated 1 -9-92 it was made clear that the aforesaid partners will continue to run business under the name and style of M/s. Sen Bakery as a partnership at will and that the said business shall be governed by the provisions of the Partnership Act under clause 6 of the said deed the profits and losses of the business shall be divided between and borne by the partners at the rate of .34 paise, .33 paise and .33 paise in a Rupee for the mother and the two sons respectively. It would be helpful to quote below the clause No. 9 and 11 to 16
"9. That the partners of the Second and Third Parts shall jointly manage the affairs of the partnership business and either of the partners can sign any application for obtaining permits or licences for baby food or other articles before Civil Supply authorities or other Government authorities or do such other acts or things as may be necessary for the propose. Any Licence or permits granted in the name of any individual partner shall be treated as belonging to the firm and no individual partner can secure any benefit out of it.
11. That the partners of the Second and Third parts shall do all necessary acts and things for proper management of the business in consultation with the partner of the First part and the Managing Partners shall appoint or dismiss employees by mutual agreement.
12. That each of the partners of the Second and Third Parts who are responsible for the management of the partnership business and conduct of its day to day affairs, shall draw monthly salary of Rs. 1500.00 each as agreed upon between the partners with effect from 1-4-94 out of the book profits of the partnership business and that such salary may vary from year to year according to business exigences. That all the partners of the First, Second and Third partners shall be allowed to draw interest on their respective capital @ 18% per annum w.e.f. 1-4-92.
13. That all existing Bank accounts in the name of the firm and that may hereafter be opened in any Bank in the name of the firm shall be jointly operated by any two partners of the firm who can sign all cheques drafts, H undies and withdraw money from the account for the purpose of the business.
14. That none of the partners shall transfer his/her share in the firm by sale gift or otherwise to any other person without express written consent of all the other partners. Each partner shall pay off his separate debt and shall keep the partnership firm and its assets indemnified against any loss arising out of such debts and no partner shall assign or charge his/her interest in the firm as security for any personal debt.
15. That any partner can retire from the partnership business by giving the others three calendar months notice in writing and the continuing partners or partner shall have the right to carry on the business as a partnership concern among themselves or by taking new partners and use the firm name. In case of retirement the outgoing partner/partners shall not be entitled to withdraw his/her share of capital which shall be treated as a loan to the firm carrying interest @18% per annum till such time as the other partners think it advisable to repay or release such capital.
16. That in case of death or physical disability of the partner of the first part, the partners of the Second and Third parts shall be the absolute owners of the business and continue the partnership business without taking any other person in the partnership in place of the first part, but in case of death or physical disability of the partners of second or Third parts, their heirs, the nominees as the case may be, shall be taken in as partners of the firm which such shares and rights as the deceased or disabled partner had in the firm and there need be no dissolution of the firm."
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