SINGANAILUR VENKATESA IYER DECEASED NARASIMHAN Vs. ISAC JOSUA

JUDGEMENT

(1.) DEFENDANTS 1 to 3 in the suit are the appellants.

(2.) THE case in brief is as follows: " THE plaintiff and the defendants were carrying on business in partnership dated 01.07.1972 under the name and style of Diana Rolling Shutters at No. 167, Walltax Road, Madras. In and by a deed of dissolution dated 31.08.1973 the firm was dissolved effective from 31.08.1973. THE defendants were however allowed to carry on the business under the same name and style. THEy undertook to submit a statement of account to the plaintiff of the said business within six months a nd settle his account. Contrary to the promise, they did not settle the accounts. THE 1st defendant wrote to the plaintiff on 08.03.1974 sending the plaintiff a copy of the current accounts and promising to send a copy of the balance sheet for the year ending 30.06.1973. On 26.03.1974 the plaintiff wrote to the Company rejecting the correctness of the current accounts. On 24.10.1978 they forwarded to the plaintiff the assessment order of the Income Tax Officer dated 27.06.1977. THE plaintiff wrote again on 09.02.1979. On 13.02.1979 they acknowledged the receipt of the letter dated 09.02.1979 and regretted the delay in sending the statement of account, but forwarded the copies of the final accounts and also enclosed a statement of account showing a sum of Rs. 4,085.49 as due by the plaintiff to the defendants and calling upon him to pay the same. On 28.02.1979 the plaintiff wrote to them with reference to the letter dated 13.02.1979 denying earlier receipt of the final accounts as mentioned in the letter. THE plaintiff also pointed out number of discrepancies as mentioned in the plaint. THE defendants are liable to render account for dissolved firm and hence, he filed the suit directing the defendants to render accounts to the plaintiff of Diana Rolling Shutters dissolved effective from 31.08.1973 and to pay the accounts. THE defendants filed a written statement and admitted the partnership dated 01.07.1972 as well as the dissolution from 31.08.1973. THE plaintiff was a full time working partner of the partnership firm. On the same day, a new partnership firm was evolved of which the plaintiff is not a partner. After dissolution of the partnership firm, the plaintiff has started a new business under the name and style of Dawn Engineering with the object of manufacturing rolling shutters and rolling grills to compete with Diana Rolling Shutters and against clause 6 in the deed of dissolution and in complete violation of the same. THE plaintiff was well aware of the accounts of the company. In fact, in 1971 defendants 1 and 2 were residing at Calcutta. THE plaintiff was the sole person who was running the business. THE entire accounts have also been submitted and a copy of the same was also given to the plaintiff as early as 08.03.1974 with a covering letter. THE present suit filed by the plaintiff is also barred by time. THE plaintiff himself has examined the entire accounts and satisfied. A perusal of the balance sheet and profit and loss account will clearly reveal the fact that in the year 1971, there was a loss of Rs. 6953-42. THE entire business was managed by single handed under a valid power of attorney by the plaintiff. It is true that the 1 st defendant on behalf of company sent a statement of current account along with letter dated 08.03.1974 and the plaintiff replied back saying that there were some defects in the accounts. THEre are no defects in the accounts at all. As per the accounts, the plaintiff is liable to pay a sum of Rs. 4085.49 and the suit filed by the plaintiff is liable to be dismissed. THE trial court framed 5 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-38 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-18 were marked. THE trial court granted a preliminary decree in favour of the plaintiff and aggrieved against this, defendants 1 to 3 preferred A.S. No. 163 of 1989 on the file of IX Additional Judge, City Civil Court, Madras and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, defendants 1 to 3 have come forward with the present second appeal.

(3.) THE learned Senior Counsel for the appellants mainly contended that the courts below have erred in holding that the suit is not barred by limitation. THE courts should have seen that the partnership was dissolved on 31.08.1973 by a deed of dissolution, Ex.B-2 and accounts have been settled immediately after that on 26.03.1974 under Ex.B-3. THE courts below also have failed to note that the accounts were furnished in March 1974 and the plaintiff acknowledged receipt of the same as seen from Ex.B-4. Even assuming but without conceding that by letter dated 13.02.1979 the appellants have sent the accounts and also acknowledged the liability to render accounts, the same is only after the lapse of three years from the date of the dissolution of the partnership. Such an acknowledgment will not clothe the plaintiff with any right to maintain the present suit, which is clearly barred by limitation. This plea alone has been taken as a main substantial question of law by the appellants.