ASHOKKUMAR NATVARLAL COMPANY Vs. KHAMAR HARILAL MAGANLAL

JUDGEMENT

(1.) This is the appeal filed by the original defendants Nos. 1 to 4 against the decree passed by the learned Judge of the City Civil Court (10th Court) at Ahmedabad. The present respondent No. 1 had filed this suit for dissolution of the partnership and taking accounts. Both the sides have produced oral and documentary evidence at considerable length. The learned trial judge came to the conclusion that the plaintiff had established that there was a partnership. He decreed the suit granting the preliminary decree and the matter was referred to the Commissioner for taking accounts to settle the accounts of the dissolved firm.

(2.) Mr. M. C. Bhatt the learned Counsel for the appellants has submitted that the trial court has misread and mis-construed the partnership deed Exhibit 56. According to Mr. Bhatt although the document is captioned as partnership deed in fact the relationship between the plaintiff and the defendants Nos. 1 to 4 is not that of partners. Mr. Bhatt has urged that this document Exhibit 56 is somewhat unusual type in this that the plaintiff is referred to as the party of the first part and defendants Nos. 1 to 4 are collectively referred to as party of the second part. According to him in a genuine partnership deed each partner is regarded as a separate party and all of them are numbered at seriatum. Moreover the defendant No. 1 is really not a partner but it is itself a partnership firm whose partners are defendants Nos. 2 3 and 4. Mr. Bhatt has referred to the recitals in the said partnership deed wherein it is stated that the plaintiff is aged over 71 years he is not keeping good health he is unable to see properly he is very weak in body and that his sole means of livelihood for himself and his family is the business of Commission Agent in vegetable which he carries on a stall in the vegetable market at a place clled Bhagubhais Vanda which is managed by the Agricultural Produce Market Committee Ahmedabad the present respondent No. 3. For his submission Mr. Bhatt has heavily relied on the term No. 9 in the said partnership deed to show that the relationship between the parties concerned was not that of partners. In the said term No. 9 it is provided that the plaintiff will be entitled to 20% of the amount of gross commission as shown by the books of accounts on the sale effected by the partnership firm. Mr. Bhatt has submitted that this term clearly shows that the plaintiff was entitled to 20% of the gross receipts of the commission without any reference to the possibility of sharing any loss that may occur in the business of the firm. Mr. Bhatt has urged that the essence of a partnership is a joint venture where the partners come together to share profit and loss of the partnership business although Mr. Bhatt concedes that a partner may be entitled to profit only and may not share the loss with other partners. But according to him a fixed percentage of the gross receipts of the commission business clearly shows that the plaintiff wanted return of a fixed percentage of the total business as the compensation for the use and occupation of the stall of the plaintiff which was to be used by the partnership firm. Mr. Bhatt submits that this is not a real or genuine partnership deed but it is a camouflage sub-licence for obtaining compensation for the use and occupation of his stall by the plaintiff.

(3.) Mr. M. B. Gandhi the learned Counsel for the respondent No. 2 has urged that the relationship between the parties was that of partners and that the said document Exhibit 56 does create a genuine ownership between the parties concerned. Mr. Gandhi has urged that going through the entire partnership deed it comes out very clear that there is a genuine partnership. As regards term No. 9 he submits that there is nothing wrong in the plaintiff restricting his share to 20% of the gross receipts of commission earned by the firm. Mr. Gandhi points out that if the plaintiffs intention was to recover rent fee or compensation for the use and occupation of the aforesaid vegetable stall then the plaintiff would have insisted on a term where-by a fixed amount would be payable to the plaintiff. Instead the plaintiff agreeing to 20% of the gross amount of the commission may mean that he would get nothing if no commission is earned at all by the firm. According to Mr. Gandhi anybody who wants to sublet or give sub-licence would not agree to a term whereby he may get nothing if there is no commission earned by the firm. Mr. Gandhi further urged that it is true that no liability is cast on the plaintiff to share any loss. But according to him in a commission business no loss is contemplated. Hence absence of provision regarding the plaintiff sharing loss does not come in the way of the relationship being regarded as partnership. Mr. Gandhi also relies on the Exhibit 213 which is an extract from the register maintained by the Agricultural Produce Market Committee Ahmedabad wherein in column No. 1 the name of the plaintiff is shown as licencee. In column No. 4 the names of four partners i.e. the plaintiff and defendants Nos. 2 3 and 4 are shown as partners carrying on business. In the fifth column it is stated that the partnership deed is produced before the Committee. This according to Mr. Gandhi conclusively proves that the defendants Nos.2 to 4 were brought in as partners and their names were entered in the Register of the Agricultural Produce Market Committee as partners. Mr. Gandhi has also relied on Exhibits 250 and 251 and a number of other documents which show that the Market Committee had written letters to the plaintiff for not paying the price of the vegetables to the vegetable growers and the plaintiff and the plaintiff was dirceted to pay them as soon as possible. Similarly Mr. Gandhi has referred to various documents which are the correspondence between the Market Committee and the plaintiff to show that the plaintiff was participating in the business and hence according to Mr. Gandhi it cannot be said that there was no partnership between the plaintiff and defendant Nos. 2 to 5.