- (1.) The First Miscellaneous Appeal is directed against the order no. 31 dt. 9.12.2011 passed by learned Judge, Bench XI, City Civil Court, Calcutta in T.S. 919 of 2010 where learned Court below while disposing of an application under order 40 rule 1 of the Code of Civil Procedure allowed the same on contest and appointed the petitioner and the defendant no. 1 of the T.S. 919 of 2010 as joint receiver of the business under the name and style "Sree Durga Electricals", having its business at shop no. G250 of 22B, Rabindra Sarani, Kol-73. The defendants are the appellants and the plaintiff is the respondent herein.
(2.) The facts of the case as it emerges from the petition under order 40 rule 1 of the Code of Civil Procedure is that the plaintiff/respondent and the defendants no. 1 & 2 of T.S. 919 of 2010 had been carrying on a partnership business by executing a partnership deed on 18.02.1986 under the name & style "Sri Durga Electricals" having its place of business at 22B Rabindra Sarani, Kolkata. Subsequently the defendants no. 3 & 4 have been introduced and a new partnership firm was created by executing a fresh partnership deed dt. 01.04.2002, all of them decided to run the partnership business under the same name & style and agreed to conduct the business of electrical goods. The parties to the partnership firm agreed to manage the business of the firm by their mutual consent having share of profit or loss of such business by 20% each, to be calculated as per the financial year. The partners, who happen to be brothers of each other agreed to have remuneration of Rs. 1000/- per month, and to have interest on capital @ 10% per annum. The petitioner being the eldest brother of the parties worked hard for the betterment of the business but the defendants being the younger brothers had no respect for him and since April 2006, the defendants are not allowing the petitioner to look after the day to day business rather they abused him on different pretexts. The defendants are not allowing him to participate in the management of the business but somehow supplied the balance sheet for the financial year 2006-2007 but not thereafter. The plaintiff/respondent (hereinafter referred to as plaintiff) tried to settle the dispute between himself and other partners of the business through the intervention of the wellwishers and family friends but as the defendants/appellants (hereinafter referred to as defendants) were adament althrough, the plaintiff served Advocates notice upon them on 15.01.2010 for supplying the balance sheet of the business w.e.f. 1/4/2007 to 31.03.2008 but instead of supplying the balance sheet, the defendants by serving a counter notice through their Advocate, blamed the petitioner for starting another shop and adverse to the interest of the partnership business, similar to that of the partnership business under the name & style "Sree Durga Electricals" from the fund of the partnership business & the conduct of the defendants made impracticable for him to run the partnership business with the defendants and that prompted him to file the suit for dissolution of partnership firm, accounts and prayed for appointment of a receiver to take charge of the partnership business and to prevent the defendants from doing harm to such business, the same being detrimental to the interest of the plaintiff.
(3.) The defendants (i.e. the appellants herein) of T.S. 919 of 2010 though failed to file any written objection against the application under consideration but they filed a "supplementary affidavit" to counter the allegations of the petitioner. In the said supplementary affidavit they categorically denied that the petitioner voluntarily stopped taking part in the management of the partnership business since April 2006 for which he was not entitled to any remuneration for non-participation in the joint partnership business. It was further alleged that the dispute between the parties with regard to the subject matter of the suit had been resolved in an amicable settlement and the terms of such amicable settlement was reduced to writing on 21.5.2006. Accordingly the defendants stated that the application under order 40 rule 1 of the Code was liable to be rejected the same being misconceived and devoid of any substance.;