M C SHANMUKHAN Vs. VACHALI JAYALAKSHMI

JUDGEMENT

(1.) THE first defendant in O. S. No. 9 of 1977, Sub Court, Tellicherry, is the appellant in this appeal. THE plaintiff and the second defendant in the suit are the respondents herein. THE suit was filed for dissolution of partnership and settlement of accounts of the firm "plasto". THE plaintiff averred that the shop building is in her actual possession on the strength of a possessory mortgage, dated 24th November, 1970, and that she has contributed the entire capital of the firm. THEre is an understanding that 15 per cent of the profits will be given to the first defendant and 10 per cent to the second defendant. THE defendants have not made any investment. THEre is no deed evidencing the partnership. THE first defendant was managing the business. He has not rendered accounts. He is making preparations to make the business his own. Hence the suit was filed for dissolution of partnership and for settlement of accounts.

(2.) THE first defendant was the main contesting defendant. He denied the existence of a partnership. He averred that the plaintiff and the second defendant gave a loan of Rs. 5000 each. THE business belongs to him exclusively. He was an employee in the shop of the plaintiff's husband (P. W. 1), that the amounts payable to him accumulated and were utilised for this business. P. W. 1, the husband of the plaintiff, is his elder brother. When he knew about the sale of the shop, he approached his elder brother and the purchase was made through him. An amount of Rs. 10,000 was paid to the landlord. THE first defendant requested his brother to pay the amount to the landlord. THE possessory mortgage was executed, in such circumstances, in the name of the plaintiff. He is not on good terms with his brother. THE suit filed in the above circumstances. THE second defendant filed a separate written statement stating that she had advanced a loan of Rs. 5,000 to the first defendant and the said amount was returned in 1973. She has no knowledge about the partnership arrangement.

(3.) THE short question that arises for consideration in this appeal is whether the business run in the name of "plasto" in Tellicherry Town belongs to a partnership consisting of the plaintiff and defendants or the first defendant exclusively ? THE learned Subordinate Judge referred to the documents obtained from the Sales Tax Department, namely, the application for registration of the firm, the recommendation made for the issue of the registration certificate and other connected matters. He held that the said documents are privileged ones but the court is entitled to look into the same. Reference was also made to exhibits B-8, B-9, B-21 and B-22, exhibits A-5, A-6, A-10, A-11, A-14 to A-17 and the evidence of P. Ws. 1 and 3, to hold that the business by name "plasto" was started as a partnership concern with the plaintiff and defendants are partners of that business. THE learned Subordinate Judge referred to exhibits B-1 to B-7, relied on by the first defendant and held that those receipts will not show that the business belongs to the first defendant exclusively.