CHEMICAL CORPORATION Vs. MIRABEN PRAFULBHAI CONTRACTOR

JUDGEMENT

(1.) Heard learned Counsel and perused the record and proceedings. This is the defendants' First Appeal under Sec.96 of the Code of Civil Procedure directed against the judgment and decree passed by the Addl. Principal Judge, Court No.2, City Civil Court, at Ahmedabad in Civil Suit No.618 of 1981 whereby the suit filed by the plaintiff was decreed. The trial Court has made the following three declarations in favour of the plaintiff:-

(2.) The defendant - M/s.Shri Cheimcal Corporation was a registered Partnership Firm at 'Industries House',behind Natraj Cinema, Ashram Road, Ahmedabad. The plaintiff Smt. Miraben Prafulbhai Contractor was one of the partners in this partnership firm along with other partners namely, Shri Sudarshan Tapuria, Smt. Kusum Tapuria, Shri Sevantilal Jivanlal Parekh, and Shri Ramprasad Somani. It may also be pointed out that initially, one M/s.Shyam Investment Private Corporation Ltd. was also one of the partners and the partnership agreement was entered into on 25th Oct.1976 and the plaintiff Smt.Miraben had 2-1/2 paise share in a rupee in the profit and loss of the said firm. The partnership firm was doing its business at Ahmedabad in "Industries House", and it had also its business at Bombay. M/s.Shyam Investment Private Corporation Ltd. had retired from the partnership firm and thereafter there was a change in the shares of the remaining partners including that of the plaintiff and as per the changes made in the partnership, the plaintiff had 10 NP share in the partnership firm after the retirement of M/s.Shyam Investment Private Corporation Ltd. The plaintiff came with the case that she had invested an amount of Rs.10,000.00 in the firm - defendant no.1 towards the capital of the said firm and that the balance sheet had been prepared upto 30th Sept.1978, and she had retired from the defendants partnership firm from 31st Dec.1978. In the balance sheet which was prepared upto 30th Sept.1978, the amount of Rs.10,000.00 was shown as credit in her capital account. It was also averred by her that Rs.2,395.00 was shown as loss coming to her share. A grievance was raised that after retirement, she had requested for accounts, but no accounts were given on one pretext or the other and hence she filed the present suit seeking the declaration that she had retired from the firm on 31st Dec.1978 and also prayed for the additional rendition of accounts from 1.10.1978 to 31.12.1978 and to give her the amount coming to her share at the rate of 10 NP per rupee and that while taking the accounts, her share in the assets of the firm should also be taken into consideration and she also claimed the interest at the rate of 12% from 31st Dec.1978 on the amount due from the defendants and also for the costs of the suit.

(3.) The plaintiff's claim in the suit was sought to be traversed by the defendant no.1 through written statement at Exh.24 wherein it was inter alia, contended that the plaintiff had no right to file the suit of the present nature as per the terms of the partnership firm and the plaintiff's husband Prafulbhai Contractor had not acted as per the said terms. It was also averred that said Prafulbhai Contractor was a partner in the sister concern trading Corporation and he had retired from the said concern on 31st Dec.1978; that he had not acted as per the terms and therefore, the plaintiff had no right to file the present suit. It was also contended that the plaintiff had no right to claim any share in any of the assets and/or goodwill of the defendant no.1 firm; while it was admitted that the plaintiff was a partner in the firm of defendant no.1 along with defendants nos.2 to 5 as other partners in the same firm. The execution of the partnership deed on 25th Oct.1976 was also admitted and it was also admitted that initially M/s.Shyam Investment Corporation was also there in this partnership for which the deed was executed on 25th Oct.1976. It was also admitted that on 11th April 1977, M/s.Shyam Investment Corporation retired and the remaining partners including the plaintiff continued in the said firm and the plaintiff as well as the other partners of the defendant no.1 firm had signed the deed of retirement of M/s.Shyam Investment Corporation. It was also admitted that the balance sheet upto 30th Sept.1978 was prepared and the amount of Rs.10,000.00 was shown as credit in the account of the defendant no.1 and that the amount of Rs.2,395.00 was shown as the amount of liability to be paid by the plaintiff towards her share on account of loss. It was also admitted by the defendant firm that they were and are ready and willing to settle the accounts with the plaintiff from 1.10.1978 to 31st Dec.1978 with the proviso that the plaintiff had no right to claim any share in the assets of the firm. On the basis of the pleadings of the parties, the trial Court framed the following issues and recorded its findings as mentioned against each of the issues as under: