NABA KISHORE NAYAK Vs. LAXMINARAYAN KHUNTIA

JUDGEMENT

(1.) THIS appeal has been preferred by the Plaintiff against the concurrent judgments of the Courts below. Admittedly Plaintiff and Defendant entered into a partnership on 26 -12 -1953 and a deed of partnership (Ex. 1) was executed and registered. Under the terms of Ex. 1, full ownership of the stock -in -trade which previously belonged to Defendant was transferred to the Plaintiff and it was agreed that the profits were to he shared in the ratio of 5/6th and 1/16th between him and Defendant respectively. Ex. 1 among other things contained a further stipulation enabling the Plaintiff to discontinue from the partnership business at any time no chose by giving 15 days notice to the Defendant. On 9 -4 -1958, Defendant served a notice on the Plaintiff conveying his intention to dissolve the partnership to which the latter replied questioning the right of the former to obtain such a dissolution. Subsequently, on 5 10 -1959, Defendant made over a document purporting to be a deed of dissolution of partnership to the Plaintiff for his signature, but the latter did not comply. Defendant illegally took away the stock -in trade and forcibly prevented the Plaintiff from carrying on the business from 5 -10 -1959. Therefore, Plaintiff filed the suit for a declaration that the partnership still continues and for recovery of Rs. 4,410.19 as the value of the stock -in -trade. Defendant among other things resisted the suit mainly on the grounds. According to him, the partnership was one at will, and therefore, dissolution took place on his serving the notice dated 9 -4 -1958. Secondly, he pleaded that subsequent to the date of notice, there was an amicable settlement between the parties at the intervention of Shri A.T. Misra, Plaintiff's lawyer and the partnership was dissolved with mutual consent. The draft containing the terms of dissolution was prepared and approved by Shri Misra in the presence of both parties, subsequently engrossed on stamp paper on 5 -10 -1959 and was executed by the Defendant, but Plaintiff took it promising to execute the same after consulting his father. He, however, did not execute the document, though in accordance with the amicable settlement dissolution had taken place and parties acted according to the terms contained in the draft.

(2.) THE trial Court dismissed the suit on the finding that the partnership created under Ex. 1 was a partnership at will which was dissolved by notice (Ex. E) dated 9 -4 -1958 served by Defendant on the Plaintiff as well as by subsequent amicable settlement, between the parties on 5 -10 -1959 on the terms contained in the document (Ex. G). Plaintiff preferred an appeal against the decision of the trial Court. The lower appellate Court held that the partnership created under Ex. 1 not being a partnership at will could not be dissolved by Ex. E. It, however, agreed with the finding of the trial Court that dissolution of the partnership took place with consent of partners by way of amicable settlement.

(3.) THE only point for decision in this second appeal is whether dissolution of partnership has taken place or not. Though in the Courts below Defendant raised the contention that the partnership evidenced by Ex. 1 was a partnership at will such a contention has not been pressed before me. The terms contained in para 9 of Ex. 1 clearly show that the partnership under Ex. I was not a partnership at will. This para contains a clear stipulation giving an option to the Plaintiff to terminate the partnership by giving 15 days' notice at any time he was unwilling to continue. Therefore, the lower appellate Court is right in holding that it was not a partnership at will, and as such, was not dissolved by Ex. E.