H G OMAR SAIT Vs. O ASLAM SAIT

JUDGEMENT

(1.) "Defendants 2 to 5 are the appellants herein. The plaintiff/ first respondent herein filed a suit for dissolution of partnership firm, for rendition of accounts and for allotment of 30% of share to the plaintiff. In the said suit, the plaintiff filed an application underO.41, Rule 1 for appointment of a receiver.

(2.) THE case of the petitioners is as follows: THE first respondent is a partnership firm in which the plaintiff, father and brother namely, second and third defendant are partners and they are carrying on business under the name and style of "English Boot House" from 1982. THE first respondent firm has its principal place of business at door Nos.17 and 18, Mount Road, Coonoor, a show room at door No.6, Mount Road and two reduction sales counters at door Nos.18-L and 18-M, Mount Road. Defendants 2 and 3 being the father and brother are looking after the entire firm accounts, except shop at No.6, Mount Road, Coonoor. As they looked after the entire accounts of the firm, the petitioner has singed in all the documents based on trust on them. While so, the second and third respondents failed to furnish accounts of the firm, when the plaintiff demanded the same. THErefore, he issued notice on 1.4.1999 calling upon the respondents to furnish notice on 1.4.1999 calling upon the respondents to furnish statement of accounts. Even then the respondents failed to furnish the statement of accounts. THE plaintiff/ petitioner came to know that the second and third defendant colluded with each other and started a new business namely "Foot Fashion" at door No.17, wherein the "English Boot House" is running his business. As per the partnership agreement dated 25.3.1999, no partner shall start similar business of foot wear selling either directly or indirectly. But the third respondent in collusion with the second respondent started the said business. THE petitioner received a bill dated 1.12.1999 stood in the name of Classic Shoes at door Nos.18L and 18M, Mount Road, Coonoor. THE said Classic Shoes was also started in English Boot House wherein two reduction counters of the firm were running. After receipt of the notice dated 1.4.1999, respondents 2 and 3 colluding with each other started a new business namely "Classic Shoes", who is the fifth respondent herein. Respondents 2 and 3 colluded together and diverted new business namely "Foot Fashion" and "Classic Shoes". THE third respondent claims to be the proprietor of the "Foot Fashions" and the fifth respondent is alleged to be the proprietor of Classic Shoes. Since the said "Foot Fashion" and "Classic Shoes" namely fourth and fifth respondent started business wherein the firm business is carried on, the income realised by respondents 4 and 5 are also to be treated as the income of the "English Boot House". "English Boot House" have business experience of 18 years and it had stock accounts of Rupees four lakhs, whereas "Foot Fashion" started recently had a stock of Rupees six lakhs. Defendants 2 and 3 did not purchase any goods in the name of firm English Boot House for the past six months, whereas they have purchased goods in Foot Fashion and Classic Shoes. Every day, the respondents by colluding with each other taking away the firm's money by conducting the business in the name of Foot Fashion and Classic Shoes. Unless they are restrained from conducting the business under the firm's name, the petitioner will be put to great loss and hardship. THErefore, it is just and necessary to appoint a Receiver to look after the two firms namely. Foot Fashion and Classic Shoes which are functioning within the firm's premises. THE respondents are making attempts to divert the entire funds of the English Boot House to Foot Fashion and Classic Shoes. THErefore, the Court may be pleased to appoint a Receiver to look after the business of English Foot House and Foot Fashion and Classic Shoes.

(3.) THE first defendant in the suit is a partnership firm. THE plaintiff and defendants 2 and 3 are partners of the said firm. THE second defendant is the father of the plaintiff and third defendant. THE fifth defendant is the son of the first wife of the plaintiff. He is shown as the proprietor of the firm namely, "Classic Shoes". THEre is no dispute that the plaintiff and defendants 2 and 3 entered into a partnership agreement under the document Ex.P-1 dated 1.4.1992. Under the above agreement, the partners agreed that the principal place of business shall be at Mount Road, Coonoor. It is also agreed that the duration of the partnership firm shall be at Will. Clause "7" of the agreement enumerates the duties of the partners in carrying on the partnership business. Clause "13" of the agreement states that no party shall without the consent of the other either directly or indirectly engage or be connected in any similar business or occupation. Clause "15" of the agreement states that in event of any different of opinion, the dispute shall be referred to and settled by arbitration.