P.V. ALLIRAJAN Vs. A.K. GOVINDASWAMY

JUDGEMENT

(1.) It appears to me that this second appeal is governed by the principle of Veeraraghavalu v/s. Thavasi, I.L.R. (1963) Mad. 942. The Plaintiff who failed in both the Courts below is the Appellant. He sued for dissolution of the partnership between him self and the Defendant and for a direction to the latter to pay the former a certain sum with future interest. The partnership was formed pursuant to a written document, dated November 29, 1957. In substance, the agreement between the two was that the firm of partnership constituted by them should run a taxi as its business and it contained a provision for contribution towards capital by both. The agreement contemplated that the permit under the Motor Vehicles Act in respect of the taxi was to be in the name of the Defendant and that neither the ownership of the taxi nor the permit could be transferred by the Defendant without leave of the Plaintiff. In the event of one or the other of the parties to the agreement desiring to go out of the partnership within the stipulated time, provision was made containing the terms on which he could do so. But none of the parties went out within the period stipulated. The firm used the taxi during the course of its transport business but on a permit which exclusively stood in the name of the Defendant. The Courts below were of the view that the partnership was an illegal one as it offended Sec. 59(1) of the Motor Vehicles Act On that view they concurred in dismissing the suit.

(2.) Mr. Gopalaswamy Ayyangar tried to distinguish Veeraraghavalu v/s. Thavasi, I.L.R. (1963) Mad. 942 by contending that the agreement between the Appellant and the Respondent in effect was one to share profits and involved no trans for of the permit to the firm. It is difficult to accept this contention in the face of the manifest terms of the agreement which unmistakably point to the fact that it was the firm which used the taxi, and under a permit which stood in the name of the Defendant. On like facts Veeraraghavalu v/s. Thavasi, I.L.R. (1963) Mad. 942 held that the partnership was illegal. That principle, as I said, has direct application to the facts of this case.

(3.) Relying on the observations in Kanniappa v/s. Karuppiah, ILR (1962) Mad. 441 (FB) on the alternative contention Mr. Gopalaswamy Ayyangar suggested that the Appellant should be given an opportunity to amend his plaint and ask for restitution of the contribution he had made towards the capital of the partnership. Granting that justice may be served by giving such an opportunity, what is argued by Mr. Ramachandran for the Respondent is that such a relief of restitution could only be granted if the agreement itself was legal. I accept this contention. There is also no reason why the Appellant could not have asked for the alternative relief in the plaint even in the first instance.