RASILABEN KANTILAL KANSARA SMT Vs. AMRATLAL BABUBHAI KOCHA

JUDGEMENT

(1.) This is an appeal preferred by the original plaintiff against the order dated November 28, 1985 passed by the learned Single Judge on Notice of Motion No. 938 of 1985 dismissing the motion and declining to appoint Court Receiver of the partnership assets. The facts which gave rise to the impugned order are as follows :

(2.) One Babubhai Narottamdas was trading in the name and style of "Babubhai Narottamdas & Co." from the year 1947 onwards. The business carried on was of manufacturing Chlorination Plants and Railway Overhead traction equipments. On October 22, 1968, a deed of partnership was executed between Babubhai Narottamdas, his wife Jaskoreben and sons Amratlal, Dharamdas, Vasudev, Madhusudan and Rameshchandra and Smt. Rasilaben the present plaintiff, who is the wife of Kantilal son of Babubhai Narottamdas. The firm was duly registered with the Registrar of Firms. Babubhai died on July 23, 1970 and the firm was re-constituted by the remaining partners. On August 21, 1972, Madhusudan retired from the firm and the firm was again reconstituted by the remaining partners. On September 18, 1979, Jaskoreben, the widow of Babubhai died and Dharmadas, one of the son of Babubhai retired from the firm. The remaining partners thereupon constituted a fresh partnership and the partnership deed was executed on April 5, 1980. Smt. Rasilaben, who is a widow, was given 24.25% share in the profits and losses of the firm. After the constitution of the firm on December 28, 1980, the partners filed a statement before the Registrar of Firms in the prescribed form provided under section 58 of the Indian Partnership Act and the Registrar duly registered the firm on March 2, 1981. On October 8, 1984 the plaintiff served a telegraphic notice on the defendants dissolving the firm and the notice was received by the defendants on the next day. The defendants, instead of replying to the notice, treated the notice as if the plaintiff had retire from the firm and the remaining partners i.e. the defendants took over all the assets for their own benefits. Thereafter the defendants sent a reply informing the plaintiff that the notice of dissolution served by her been treated by the defendants as the intention of the plaintiff to retired from the above firm. The defendants did not offer a single farthing to the plaintiff towards her share on the alleged date of retirement.

(3.) The plaintiff thereupon instituted Suit No. 1228 of 1985 in this Court on May 3, 1985 for a declaration that the partnership firm is dissolved by notice dated October 9, 1984 and the plaintiff is entitled to a share of 24.25% in the business and in the assets inclusive of properties of the firm. The plaintiff sought for the consequential relief on the basis of the dissolution of the firm. The plaintiff also took out Notice of Motion No. 938 of 1985 for interim relief including appointment of Court Receiver as the Receiver of all the assets of the partnership firm. The motion was resisted by the defendants claiming that the partnership was not a partnership at will and under Clause 2 of the partnership deed, it was open for the plaintiff to retire from the firm but she had no right to dissolve the firm. The defendants claimed that the plaintiff having retired from the firm by serving notice of dissolution, the plaintiff cannot apply for appointment of Court Receiver as Receiver of the assets of the firm. The defendants further claimed that the partnership business is a running business and there are number of contracts of considerable value and, therefore, it would not be appropriate to appoint Court Receiver. The learned Judge accepted the contention and declined to appoint Receiver but merely restrained the defendants by an order of injunction from parting with possession or creating third party rights in respect of properties at items Nos. 1 to 9 in paragraph 11 of the plaint. The order of the learned Single Judge is under challenge.