THOMAS STEPHEN Vs. ANTONY JOSEPH MORRIS

JUDGEMENT

(1.) FIRST defendant is the appellant in this Second Appeal.Himself,the plaintiff,defendants 2 and 4 and others had entered into a partnership for conducting fishing operations in the sea.The partnership functioned from 15th Decem­ber 1963 to 25th February 1965.Thereafter,it failed resulting in the sale of the fishing boat.The plaintiff in the circumstances,filed the suit for amounts advanced by him.The trial court dismissed the suit as under section 69(1)of the Partnership Act the suit is not maintainable.But the learned appellate Judge has reversed that decision,and has passed a preliminary decree allowing the plaintiff to recover 1/20th share from the partnership assets.The learned Judge has also,in the alternative,allowed the plaintiff to recover the plaint amount in case it was found that the accounts were suppressed or that the defendants were guilty of negligence in maintaining the accounts.Amounts are allowed to be recovered personally from the 1st defendant.

(2.) THE suit though not maintainable under section 69(1)or(2)of the Partnership Act,is maintainable under section 69(3 )(a)of the Act.On this point there is no controversy bet­ween the parties.But the question that really arises for consideration is whether the Court is competent to pass a decree for the plaint amount as such personally against the 1st defendant.Normally,such a suit namely,a suit for a specific sum of money is not maintainable under section 69 the Act.The partner suing can get only his proportionate share of the assets found to belong to the partnership.

(3.) WERE not maintained.It is under these circumstances that the alter­native relief of a decree for the plaint amount charged personally on the 1st defendant had to be passed.The suit aims mainly at the enforcement of the plaintiff's right for accounts of the dissolved firm as contemplated in section 69(3 )(a)of the Act and that relief had been granted in the first instance.But from the circumstances of the case it was apprehended that the accounts would either be suppressed or fabricated by defendants 1,2 and 4 who were at the helm of affairs with reference to the partnership.In such a contingency the Court observed that unless provisions are made in the preliminary decree the plaintiff's right is likely to be defeated.It is to avoid such a situation befalling that the alternative relief has been granted to the plaintiff. It is well within the power of the court to indicate the lines on which the preliminary decree is to be passed so as to mete out justice to the parties.In N.Gangulu v. N.Chengamma A.I.R.1925 Mad.237 such a decree was passed and that was not disturbed by the High Court.In that case,"plaintiff brought a suit against 4 defendants.He alleged that a partnership was formed between them and that he contributed Rs.1,745 towards the capital and that the defendants suppressed the amount and were causing him loss.He prayed for a decree for dissolution of partnership and a direction to the defendants to pay him the amount due to him including profits and interest.It was found that plaintiff's case was substantially true and he was granted a decree for the amount claimed with profits on the ground that as the defendants had suppressed the accounts presumption was against them 