GOUTAM HAZRA Vs. PINAKI HAZRA

JUDGEMENT

(1.) This appeal is at the instance of the plaintiffs in a suit for dissolution of partnership firm and accounts and is directed against Order No. 19 dated 17th March, 2001 passed by the Civil Judge, Senior Division, 1st Court, Barasat in Title Suit No. 105 of 2000 thereby rejecting the plaint on the basis of application filed by the defendant.

(2.) The present appellants filed the aforesaid Title Suit No. 105 of 2000 thereby praying for the following relief:

(3.) The case made out by the appellants may be epitomised thus : (i) The plaintiffs and defendant No.1 are full brothers and the proforma- defendant is the father of the parties. (ii) The proforma-defendant No. 2 gave proposal for filing an application for getting liquor-licence through his eldest son, the defendant No.1 and accordingly, he applied for such licence and the same was granted in the name of defendant No.1 on 9th December, 1985 for sale of foreign liquor to the public for consumption. But as a matter of fact, at the relevant point of time, the defendant No. 1 had not the financial capability of opening such a business. After grant of such licence, it was settled between the plaintiffs and defendant at the instance of the proforma-defendant that they would all work as partners and there would be no necessity of engaging any outsider as employee for selling of foreign liquor in the counter. (iii) As none of the plaintiffs and defendant No. 1 had any source of income for the purpose of opening of such foreign liquor business, the proforma- defendant provided them money for opening of foreign liquor shop. At that time, there was no written agreement of partnership but it was decided that such partnership agreement would be executed in future. Subsequently, after making investment of money by the proforma- defendant and after giving full time service by the plaintiffs along with defendant No.1, the business became lucrative and afterwards on 17th September, 1987, a partnership agreement was entered into among the plaintiffs and defendant No.1. According to such partnership agreement, the trade licence would stand in the name of defendant No. 1 and if any dispute arose, in such circumstances, the licence would be changed. It was further agreed that both plaintiffs and defendant No. 1 would purchase the articles of business and would keep proper accounts and if needed by any of the partners, he would take out the same subject to the maintenance of accounts etc. and anyone of the partners would be entitled to deposit money or withdraw the same on behalf of the other partners. It was further provided that if the situation so demanded, both the plaintiffs and principal defendant would appoint such person as would seem necessary for dealing with the business- transaction. The agreement provided that all the partners would have 1/3rd share of interest over such business and if any one wanted to transfer his share, he would give proposal to others for purchasing of such share and without taking any consent from other partners no one would transfer his share. (iv) Subsequently, dispute and differences arose between the parties and it became impossible for the plaintiffs to continue as partners. It appeared that due to non-payment of amount towards repayment of loan, the interest on principal amount in respect of loan given by the State Bank of India reached a figure of Rs. 7.50 lakh. (v) The defendant with ulterior motive was trying to take away capital of the firm and intended to invest such capital in other business and even did not allow the plaintiffs to enter into such foreign liquor shop and at the same time refused to render any account. Hence the suit.