A V JOSEPH Vs. JOSHY T JOSEPH

JUDGEMENT

(1.) The plaintiff in a suit for directing the winding up of a partnership firm; for settlement of accounts and for direction to the defendant to render accounts, is the appellant. He sued alleging that he and the defendant are partners of a firm run with a firm name, engaged in quarrying and stone crushing business activities.

(2.) According to the plaintiff, that is a partnership at will and he and the defendant have equal shares, with right to share the profit and loss of the partnership equally. The plaintiff pleaded that the unit was initially commenced by the defendant as a proprietary concern and thereafter, he was brought in on negotiations. He pleaded that the partnership business stood dissolved as on 25.2.2011, when a notice of termination was issued. Along with the plaint, among other things, Ext.A1, the agreement (in original) dated 16.4.2000, Ext.A2, a copy of notice dated 22.2.2011 and Ext.A3, defendant's reply (in original) dated 15.3.2011 were produced. With these materials, the plaintiff appealed for appointment of a receiver to take possession of all assets of the firm, particularly those described in plaint 'C' schedule, along with stock in trade, books of accounts etc.

(3.) The defendant objected to that application contending that the Ext. A1 agreement does not, by its terms, create a partnership or regulate mutual rights and liabilities arising out of a duly constituted firm. He took the stand that in terms of clause 3 thereof, the parties have to execute a deed of partnership and such a deed having not been executed, no partnership has come into being. According to him, it is only after executing such a deed, would all assets referred to in Ext.A1 agreement have to be conveyed to the partnership firm; otherwise, there would be no partnership since the intention was that the partnership will come into existence only on the execution of a deed following Ext.A1 agreement. Though he admitted having issued reply notice, he tried to explain off some of its contents.