MANILAL BACHARLAL SANGHVI Vs. KESHABJI PITAMBER

JUDGEMENT

(1.) These three appeals have been heard together because they arise substantially out of the same judgment of Mr. S. M. Karim, Subordinate Judge of Dhanbad. They arise out of a suit for dissolution of partnership and accounts and also for the appointment of a receiver to wind up the partnership business. First Appeal 61 of 1949 is by the defendants against that part of the judgment which directed accounts to be taken from them, whereas First Appeal 91 of 1949 is by the plaintiff against the portion of the judgment refusing his prayer for dissolution of the partnership, and Miscellaneous Appeal 342 of 1949 is also by the plaintiff against the order dated 13-9-1949 refusing to appoint a receiver.

(2.) The plaintiff under a registered lease got a settlement from the Kashipur Wards Estate for a term of 30 years of coal and coal mining rights with incidental surface rights in respect of a plot of land measuring about 92 bighas in mauza Kujama Pergana jharia. Under the lease in question the plaintiff carried on colliery business in the name and style of Keshavji Pitamber Kujama Colliery. It appears, however, that his circumstances became involved and suits for rent and royalty in respect of the colliery as also for realisation of other dues were instituted against the plaintiff. The plaintiff being in pressing need of money to save the colliery from sale in execution of the landlord's decree in Title Suit No. 17 of 1943 and for obtaining a renewal of the lease entered into a partnership with the defendants. This partnership-deed is dated the 2nd oi September 1944, and is Ex. 2 in the case. The terms of this deed play an important part in the decision of the disputes involved in these appeals and will have to be dealt with in some detail later. Suffice it to say that under the deed in question the defendants agreed to advance to the plaintiff a capital sum of Rs. 1,36,000 under the terms and conditions embodied in the agreement and they were to be in sole charge of the management of the colliery. The period of the agreement was to last for 71/2 years commencing from the 1st of June 1944, because the defendants had been already put in possession of the colliery business by virtue of a prior agreement between the parties on the 31st of May 1944, and this period of 74 years could be extended in case the defendants were not able to realise meanwhile the capital sum advanced from the income of the colliery business. It may be also stated that the plaintiff was entitled to a half share in the profits of the partnership business, whereas the defendants, who were the other two partners, were entitled to one-fourth each, and the further agreement was that out of the plaintiffs share of the profits the defendants would be entitled to appropriate 75 per cent thereof towards the satisfaction of the amount advanced by them and to pay the rest of the 25 per cent to the plaintiff.

(3.) The plaintiff's case is that the entire sum advanced by the defendants had been fully repaid and satisfied out of the three-fourth of the plaintiff's half share of the profits. He claimed that the actual profit earned from the colliery business was much more than what had been shown by the defendants and there were false and fraudulent entries in the account books. He, therefore, alleged various irregularities in the keeping of the accounts and in the conduct of the business. Numerous such details have been given in the plaint but fortunately most of these have not been seriously pressed either before this Court or before the Court below. The most important allegation, however, is that the defendants have failed to pay the income-tax due in respect of the business on account of which there is an apprehension of the plaintiff being harassed. The plaintiff further averred that in the circumstances he had lost confidence in the defendants and that it was not possible for him to carry on the business in partnership with them. He has, therefore, claimed dissolution of partnership and accounts as stated above.