N P VIJAYAKUMAR Vs. NARAYANIKUTTY AMMA

JUDGEMENT

(1.) The appeal arises from a suit for dissolution of partnership and rendition of accounts. The defendant, a relative of the plaintiff, is in appeal. The plaintiff alleged that the defendant having returned jobless from abroad, approached her to commence a share broking business in partnership. Necessary agreements having been entered into and also a room on rent having been taken out at Aluva, the defendant took out a membership in the name of "Gee Vee Associates", with the Cochin Stock Exchange. Accounts were opened at the Indian Bank at Aluva and also Syndicate Bank, Ernakulam. The verification of accounts on 31-12-1988 revealed a profit of Rs. 11/2 lakhs disclosed, which was again invested in the business. The defendant was all-through operating the accounts and managing the affairs of the partnership and on difference of opinion having arisen in 1989, the plaintiff demanded settlement of accounts and the due share in the profits. The plaintiff also contended that during that time the share business had ended troubled waters and both the plaintiff and defendant were faced with legal proceedings initiated by the customers. The dispute having been referred to a Chartered Accountant, nothing could be done due to the incomplete accounts. The plaintiff claimed rendition of accounts and dissolution of the firm and valued the suit at Rupees ten lakhs, being the profit share of Rupees one lakh, and Rupees nine lakhs being one-half share for the alleged sale of membership card with the Cochin Stock Exchange. The defendant raised the contention that the suit itself was not maintainable for the reason that the membership acquired with the Cochin Stock Exchange was his individual membership, which he was permitted to operate under the trade name "Gee Vee Associates". The business carried on by the defendant at the Cochin Stock Exchange under the trade name assigned to him also was his personal business. However, the son of the plaintiff having expressed his interest in share broking business and being unable to participate directly due to his employment; wanted the defendant to establish a service centre at Aluva, for which the plaintiff was offered as a partner. The Aluva service centre was the sole responsibility of the son of the plaintiff and was not connected with the business of stock broking carried on by the defendant in the Cochin Stock Exchange under an individual membership. The Aluva centre, it was alleged, was only a service centre managed by the plaintiffs son, for whom business was carried on at the Cochin Stock Exchange by the defendant.

(2.) The Trial Court framed issues, as to whether there was in existence any partnership business, and whether such business was liable to be dissolved and the defendant's liability to account for the income on such dissolution as also the amounts entitled to the plaintiff. The plaintiff examined herself as P.W. 1, the landlord of the room in which Aluva service centre was run as P.W. 2, the employee at that service centre as P.W. 3, the auditor as P.W. 4 and the Managers of Indian Bank, Aluva and Syndicate Bank, Ernakulam Branch as P.Ws. 5 and 6 and the General Manager of the Cochin Stock Exchange as P.W. 7. Defendant did not examine anyone; but marked Exhibits B-1 to 3-5 documents through the plaintiff and her witnesses.

(3.) The trial Court placed reliance on Exhibit A-5, a rent receipt, and the deposition of the Chartered Accountant, P.W. 4, to hold that there was in existence a partnership business between the plaintiff and the defendant. It was also found that though the son of the plaintiff was also engaged in the business, that cannot in any manner lead to discredit the plaintiff's status as a partner. Exhibit X-1, being the form for opening an account in the Indian Bank Aluva, indicates both the plaintiff and defendant having signed as partners. Exhibit X-3, evidencing the account in Syndicate Bank in the name of "Gee Vee Associates", however, indicates the same as a proprietary concern of the defendant. The documents called for from the Deputy Superintendent of Police as also the Consumer Disputes Redressal Forum ("CDRF" for short), Ernakulam disclosed the business having sailed into bad weather, resulting recovery and penal action being taken by the customers. On an appreciation of the totality of the circumstances and the evidence on record, the trial Court considered the unfortunate circumstance in which the plaintiff's deposition before the CDRF was relied on to discredit her case. The trial Court found that the said admission was only for escaping the liability before the CDRF and despite the membership in the Cochin Stock Exchange being shown as an individual membership, went on to hold that there was in fact a partnership agreement between the plaintiff and the defendant with respect to the firm "Gee Vee Associates" as alleged in the plaint and held the defendant to be liable to account for the income from the said firm to the plaintiff. Hence, a preliminary decree for dissolution of partnership and rendition of accounts was passed, finding that the plaintiff is entitled to recover the amount found to be her share of settlement of accounts with interest at the rate of 12% per annum from the date of suit till realization from the defendant and his assets.