NAROTTAMDAS MAYABHAI SHAH Vs. ANUBHAI SARABHAI SHAH

JUDGEMENT

(1.) If after the cessation of the business activities of a partnership firm (such is the limited question before this Court) some partners carry on a different and separate business in a different name would they be liable to make over the profits earned by them to the other partners (who made no contribution by investing time-effort or money in the activities) in the context of clause (b) of sec. 16 of the Partnership Act ? Can it be said that those who started separate business were carrying on a business of the same nature as and competing with that very firm when the firm had discontinued all its business and was doing no business ?

(2.) Respondent No. 1 instituted the suit giving rise to the present appeal on November 11 1966 on the premise that he was a partner in a firm doing business in the name of M/s. Kalyanbhai Anubhai. According to him the partnership had not been dissolved till the death of his brother (who was also a partner) on April 11 1963 He claimed accounts of the partnership. It was also contended by him that appellants (original defendants Nos. 1 2 & 3) had during the continuance of the partnership business done bu- siness of the same nature and competing with the business of the partner- ship and had thereby made secret profits for which they were liable to render accounts to the extent that they had made profits in the said bus- iness. They claimed a decree for accounts in this behalf as well. The appellants contended that the firm had ceased doing business on Maha Vad Amas of S. Y. 2014 which corresponded with February 18 1958 According to them the firm stood dissolved with effect from February 18 1958 and that the suit was barred by limitation. With regard to the competing business their stand was that the said business was done after the partnership was dissolved. The learned trial Judge came to the con- clusion that the partnership stood dissolved with the death of Ratilal the brother of the plaintiff on April 11 1963 He therefore passed a decree for dissolution of the firm and directed the defendants to render accounts. The appellants were directed to render accounts for the period ending on February 18 1958 during which period the partnership was carrying on business. They were also directed to render accounts of the profits made by them in their separate business carried on in the name of Kalyanbhai Mayabhai from February 18 1958 till April 11 1963 on the premise that they had received secret profits earned by them by carrying business of the same nature competing with that of the partnership firm. The app- ellants feeling aggrieved by the preliminary decree passed by the trial Court have preferred the present appeal.

(3.) Learned counsel for the appellants (defendants Nos. 1 2 and 3) has with fairness stated that he will not be able to question the finding that partnership stood dissolved on April 11 1963 when one of the partners namely Ratilal the brother of the plaintiff died He however contended that the learned trial Judge was in error in directing the appellants to render the accounts of profits made by them in their separate business carried on a different name (Kalyanbhai Mayabhai) from February 18 1958 the date on which the partnership discontinued its business activi- ties and in fact ceased to function till April 11 1963 the date on which the partnership stood dissolved by virtue of the death of Ratilal. It was argued that on a true interpretation of clause (b) of sec. 16 the appellants would not be liable to render accounts of such profits by them in their separate business when there was no question of competing with the business of the firm which according to the finding recorded by the lea- rned trial Judge himself ceased to carry on any business activity from February 18 1958 onwards. The learned trial Judge has concluded that the partnership ceased to carry on its business activities on February 13 1958 and all its business activities in fact came to an end. In other words the partnership business was discontinued which effect from February 18 1958 There is overwhelming evidence to support this conclusion. Learned counsel for respondent No. 1 plaintiff has not been able to challenge this finding. The evidence clearly shows that the partnership ran into difficul- ties in the latter part of 1957. Ex. 127 is a letter addressed; by the Manager of the Punjab National Bank Ltd. to the partnership firm (M/s Kalyanbhai Anubhai) on September 24 1957 It shows that 42 bales of cotton which were pledged with the Thasra Branch of the Bank were removed by A one of their partners in a surreptitious manner. Ex. 128 is another letter bearing determine September 27 1957 from the Manager to the firm which says that Sheth Ramanlal Sarabhai the brother of the plaintiff was res- ponsible for the removal of the 42 cotton bales. The Bank informed the firm that under the circumstances the Bank did not want to extends its Cash Credit facilities any longer. The account disclosed that a sum of Rs. 5 44 239 was due and payable by the firm to the Bank at the material time. The evidence of D. W. 1 Narottamdas Mayabhai whose deposition is recorded at Ex. 115 read with the aforesaid documentary evidence clea- rly shows that the Bank account had to be closed and the business acti- vities had to be discontinued. Under these circumstances it is clear that the business activity was discontinued from February 18 1958 There is other evidence of an unassailable character which corroborates the evidence in this behalf. Ex. 120 is the Assessment Order passed by the Income-tax Officer Circle IV Ward-F. Ahmedabad in relation to the assessment of the firm (M/s. Kalyanbhai Anubhai) for the Assessment Year 1959-60 (Accounting Year S. Y. 2014). It has been clearly stated therein that business of the firm was closed down on Maha Vedi 30 of the year. Ex. 120 further shows that there was a loss of Rs. 104.00 during the mat- erial period. Ex. 124 is the Assessment Order of the firm for the Assessment Year 1960-61 which relates to Accounting Year S. Y. 2015. It has been mentioned therein that the firm had stopped business in S. Y. 2014 and that no business activity was carried on in S. Y. 2015. The income of the firm was assessed at nil. This evidence of an unimpeachable character establishes that the business activities of the firm were discontinued with effect from February 18 1958 and no further business was done thereafter.