GOUR CHANDRA SINHA Vs. BATA KRISHNA GHOSE

JUDGEMENT

(1.) THIS second appeal is by the defendant and it arise out of a suit instituted by the plaintiff respondent against the defendant appellant for dissolution of partnership and for accounts. The plaintiff's case is as follows : the plaintiff and the defendant entered into an agreement of partnership dated January 31, 1955 for the purpose of carrying on a business styled as "indian Acid and Chemical Co. " for the manufacture of heavy chemicals. As the plaintiff was a government servant serving in Calcutta Customs he could not actively participate in the management of the business. The partners contributed towards the capital of the business and also borrowed money from others and invested the same in the partnership business. A joint account was opened in the United Industrial Bank Ltd. , Burrabazar Branch, Calcutta in the name of the plaintiff and the defendant. The registered office and the factory of the partnership business are situated at 221/2, Bagmari Road, Calcutta. It was alleged that the above premises was originally a rented one and the rent used to be paid by the partnership firm. On May 6, 1967, the plaintiff and the defendant purchased the structures standing on the land from Surja Prosad Poddar who was a thika tenant under the landlord Durlav Chandra Khungi. It was alleged that the partners also started two other business under the name and style of Eureka Chemical Co. and Indian Acid Co. The plaintiff claimed that he had equal share in the said two subsidiary business. The plaintiff further alleged that as he was unable to participate directly in the management of the business the defendant in collusion with the manager, Suprokash Bose, misappropriated large sums of money out of the profits of the partnership business. The plaintiff further alleged that in January, 1961 he went to visit different place in India by a conducted tour known as "bharat Darshan". He returned to Calcutta in March, 1961 and during his absence the defendant in collusion with others closed the joint bank account and opened a separate account in the name of Indian Acid and Chemical Co. in the State Bank of India, Shyambazar Branch, describing himself as the sole proprietor thereof. The said account was subsequently transferred to Manicktala Branch of the State Bank of India. The plaintiff alleged that in order to actively participate in the management of the partnership business the plaintiff voluntarily retired from service on June 2, 1965 although in the usual course he would have retired about 8 years later. After retirement the plaintiff wanted to take part actively in the affairs of the partnership business but the defendant refused to allow him to do so. The plaintiff became suspicious and after making enquiries he came to know that the defendant had been trying to create false evidence to show that the business was his proprietary concern in order to oust the plaintiff from the business. The plaintiff further came to know that the defendant had been misappropriating the entire profits of the business. The plaintiff accordingly demanded accounts from the defendant but the defendant wrongfully refused to render accounts. Hence the plaintiff brought the present suit for dissolution of the partnership and for accounts.

(2.) THE defendant denied the material allegations in the plaint. He denied that the plaintiff was a partner in the business run under the name and style of Indian Acid and Chemical Co. He claimed to be the sole proprietor of the said business. It was stated that the alleged agreement of partnership was ab initio void and illegal and it was never acted upon and that the defendant repudiated the said alleged agreement of the partnership and waived all rights under the same for a period of more than 6 years before the institution of the suit by his acts, deeds and conducts. The defendant asserted that he alone started and carried on the business of dealership in acid and chemicals under the name and style of Indian Acid and Chemicals Co. from 1952 at 31, Mullick Street, Calcutta, having all necessary licences etc. in his own name. Subsequently, the business was shifted to 221/2, Bagmari Road where the defendant began the business of manufacturing acids since 1955. It was alleged that from time to time when, he was short of funds for running the business he used to borrow money from different sources. The manager, Suprokash Bose, is the nephew of the plaintiff. Suprokash introduced the defendant to the plaintiff who advanced money to the defendant from time to time as temporary accommodation loan. The plaintiff did not enter into the partnership business as it was not a profitable concern at the time when the alleged agreement was signed. It was alleged that the business was run and managed by the defendant alone though the plaintiff assured him that he would join the same after giving up his service under the Government. The plaintiff never continued or conducted the business as a partner. It was alleged that in 1955 a Bank Account was opened in 1he joint names of the plaintiff and the defendant but the entire money was paid by the defendant alone in the expectation that the plaintiff would contribute towards the capital as per agreement but the plaintiff failed to do so. It was further alleged that the rent of premises No. 221/2, Bagmari Road was paid by the defendant as proprietor of the business and the structures were purchased in the joint names of the plaintiff and the defendant because the plaintiff agreed to advance an accommodation loan of Rs. 2250/ -. The properties at Bagmari Road are the personal properties of the defendant. The defendant alleged that the plaintiff submitted a statement in writing before the Income Tax Officer on June 12, 1959 disclaiming any interest in the partnership business. According to the defendant the plaintiff was merely a financial helper and he was never a partner of the business. It was stated by the defendant that the partnership agreement is illegal being opposed to public policy. The defendant accordingly prayed for dismissal of the suit.

(3.) AS many as 12 issues were framed in the trial court. All these issues were answered in favour of the plaintiff and the suit was decreed. The defendant went up in appeal before the Lower Appellate Court but the appeal was also dismissed. Against the decision of the lower Appellate Court the present Second Appeal has been preferred by the defendant.