BISWANATH HALWAL Vs. AMRITLAL HALWAL

JUDGEMENT

(1.) The shop room in 180, Vivekananda Road, Calcutta is the subject-matter of this appeal and the suit out of which it arises. The crucial question for determination is whether the plaintiff and the defendant entered into a partnership agreement with regard to the business in the shop or whether the plaintiff sublet a room to the defendant.

(2.) The plaintiff pleaded that he was running the confectionery shop from before and because of his advanced age, it become difficult for him alone to manage the said sweetmeat shop. In that situation, it was stated, the plaintiff entered into a partnership business with the defendant for running the sweetmeat business in the shop and a partnership deed was executed between the parties on the 20th Aug., 1563. The various terms of the partnership deed are set out in the plaint, but it is necessary to refer at this stage to only the salient features of the agreement. It was agreed, as per the deed, that the first party (plaintiff) would be entitled to a fixed profit of Rs. 105.00 per month and would not be liable for any loss. It was also stipulated that the monthly rent of the shop room would be paid regularly by the plaintiff and all charges to Corporation would be paid by him and the trade licence would also stand in his name. The 9th clause of the deed, which is very important, is that in case the second party, that is, the defendant, failed to pay the first party his fixed profit by the time fixed, the partnership would stand dissolved. Incidentally, it may be mentioned that in the deed, there is also a stipulation that the first party plaintiff), would assist the defendant in all possible ways. The plaintiff alleged that the business was being carried on accordingly for some time and the defendant also made payments of monthly profits upto the month of Aug., 1972. Thereafter, it was alleged, the defendant defaulted. So, on the ground that the defendant became guilty of breach of the terms of the deed, the plaintiff instituted the suit for reliefs set out in the prayer portion. The plaintiff asked for a declaration that the partnership stood dissolved. The plaintiff also prayed for decree for ejectment and for restraining the defendant from interfering with the carrying on of the is business by the plaintiff. Similarly, he has prayed for that the defendant be restrained x1 from carrying on the business at the suit premises. There was also a prayer for accounts.

(3.) The main defence of the defendant was that there was no partnership business between the plaintiff and the defendant and that the plaintiff had sublet the premises to him. it was stated in paragraph 11 of the written statement that in 1952 the sweetmeat shop of the plaintiff came to a standstill due to want of funds and the plaintiff stopped that business. In 1952, as stated by the defendant, the plaintiff sublet the suit premises to the defendant and since then the defendant was carrying on the business in the suit premises. At first, the rent was fixed at Rs. 100.00 per month. Later, in order to avoid the decree for eviction in a suit filed by the superior landlord, the parties brought into existence a partnership deed, to conceal the position of subletting. At that time, according to the defendant, the rent was enhanced to Rs. 105.00 per month. The defendant, however, admitted in paragraph 12(a) that the plaintiff permitted him to use some of his articles. Title Suit No. 193 of 1963 was filed against the defendant in the City Civil Court, Calcutta, in order to avoid the provisions of s. 13(1)(6) of the West Bengal Premises Tenancy Act, as pleaded by the defendant. The defendant emphasised that he was the sole proprietor of the business and was in exclusive possession and that the plaintiff had only the right to collect rent from him on certain conditions, which right also be forfeited for failure to perform his duty. These in-short, were the respective cases of the parties.