VINUBHAI NAJIBHAI CHAVDA Vs. MAHESHKUMAR RAMCHANDRA RAVAL

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff who had filed Special Civil Suit No. 74 of 1999 against the respondent original defendant for recovery of Rs.1,08,009.00 and for rendition of accounts of unregistered oral partnership between the parties. It is the case of the plaintiff that the plaintiff and the defendant decided to purchase one truck belonging to Shri Dipakkumar Himatlal Shah and to do the business of transportation with the said truck in partnership and agreed to equal share in the business of partnership. It is further case of the plaintiff that on 4.9.1998, the plaintiff paid Rs.75,000.00 in cash to the defendant for purchase of the truck and thereafter, paid further amount of Rs.17,000.00. Thus, in all, the plaintiff paid Rs.92,000.00 and the truck was purchased from said Shri Dipakkumar Himatlal Shah. That the value of the truck was fixed at Rs.3,21,000.00, out of which, the plaintiff paid Rs.92,000.00 and the defendant gave his plot of Rs.83,250.00 and also paid Rs.7636.00 in cash. There was outstanding loan from the bank for Rs.1,38,114.00 and on repayment of the said loan, Shri Dipakkumar Himatlal Shah was to transfer the said truck in the name of the plaintiff and defendant, jointly. It is the further case of the plaintiff that after the truck was purchased in partnership, defendant was managing the business of the truck and was also receiving income from the said business and was keeping the said income with him. The plaintiff s further case is that he paid Rs.8000.00 for the purpose of payment of installment, Rs.6700.00 for the purpose of tyre, Rs.400.00 and Rs.250.00 for head light cut out and sidelight cover, Rs.519.00 for repairing and wire checking and Rs.65.00 for wheel service. The plaintiff thus paid Rs.1,08,099.00 to the defendant for purchase of truck and for the purpose of repairing of the truck. The defendant however did not give any account of the income and expenses of business of truck and the plaintiff when insisted that if the defendant did not want to give account of the business of the truck, defendant should give him possession of the truck so that the plaintiff could manage the business of truck and maintain accounts. However, the plaintiff came to know that the defendant sold away the truck and cheated the plaintiff and the plaintiff was, therefore, required to file criminal complaint against the defendant. The plaintiff also served legal notice to the defendant dated 14.8.99 asking the defendant to repay the amount of Rs.1,08,900.00 given by the plaintiff to the defendant. Since the defendant has not acted as per the notice, the suit is filed. Prayer made in the suit is for passing decree for recovery of Rs.1,08,009.00 and also for giving of accounts for the business of truck and also for passing decree for 50% share from the income of truck by rendering accounts for business of the truck as the defendant had sold out the truck and from that date, not rendered any accounts.

(2.) The suit was resisted by the defendant denying the existence of partnership, payment of money by the plaintiff to the defendant, purchase of truck to do the business in partnership, and also denying that the defendant was managing the business of truck and receiving income there-from.

(3.) The learned trial Judge on appreciation of the evidence, though recorded that it is proved that the plaintiff invested Rs.89700.00 in partnership business and the defendant managed the business oftruck and was receiving income from the truck and still failed to render accounts to the plaintiff, came to the conclusion that the suit of the plaintiff is barred by the provisions of section 69(1) of the Partnership Act. Learned trial Judge has held that in absence of the relief of dissolution of partnership and of taking accounts, the suit is merely for recovering the sum which is not maintainable. The learned trial Judge, thus, dismissed the suit by judgment and decree dated 29th November, 2003.