VISWANATHAN Vs. SUBRAMANIAN

JUDGEMENT

(1.) Defendants in a suit for dissolution of a partnership and rendition of accounts are the appellants. Sole plaintiff is the respondent.

(2.) 1st appellant and the respondent are siblings, the respondent being the elder brother. Respondent was employed in Dubai from 1975 onwards. 1st appellant was jobless at that time. Respondent returned to India in December, 1980 and in order to have a steady income and also to accommodate the 1st appellant, both of them entered into an oral partnership agreement for conducting a business in dealing with cement, paint and other hardware items. Respondent invested the capital to a tune of Rs. 1,95,000/-. "Fancy Hard Wares" is the name given to the firm. Respondent, apart from investing money, had sent a bajaj scooter worth Rs. 16,000/- to the 1st appellant for the use of the partnership business. 1st appellant was acting as managing partner of the firm. The firm was making a substantial profit. It is the allegation in the plaint that from out of the profits generated by the firm, the 1st appellant purchased a motor car worth Rs. 3,00,000/- and also landed property, admeasuring 29.5 cents in the joint names of the appellants. 1st appellant constructed a house in the property spending a huge sum. In 1990, the respondent returned to India for good. Respondent contended that he had participated in the business during 1991-92. Thereafter the 1st appellant did not allow the respondent to take part in the business. He failed to account for the income from the business. Hence the suit is filed.

(3.) 2nd appellant was impleaded in the suit based on the contention raised by the 1st appellant. Both of them contended that the suit is not maintainable. According to the 1st appellant, the firm by name "Fancy Hard Wares" had been dissolved and its accounts were settled. It is the definite case of the 1st appellant that the partnership is not in existence since 31.03.1995. "Nalanda Hard Wares" is a business exclusively belonging to the 2nd appellant. There is no connection between Nalanda Hard Wares and Fancy Hard Wares. Nalanda Hard Wares has sales tax registration and also the required licences for conducting business. Allegation in the plaint that the respondent had invested Rs. 1,95,000/- in Fancy Hard Wares is denied. No scooter was acquired by the partnership firm. The car, scooter and immovable properties mentioned in the plaint were purchased by utilising the funds belonging to the appellants. Money was raised by selling gold ornaments belonging to the 2nd appellant and also by availing a loan. 1st appellant is doing business in cement in a building in his own name. 1st appellant was employed in Bangalore during 1977-80 and he had invested Rs. 25,000/- in the firm. According to him, the respondent had invested an amount of Rs. 50,000/-. No deed of formation of the firm was executed and it was not registered under the provisions of the Indian Partnership Act, 1932 (in short, "the Act"). It is the definite case of the appellants that after the firm was dissolved on 31.03.1995 and accounts were taken, share due to the plaintiff was given on 01.04.1995. Hence the suit is a misconceived action.