JAGDISH CHANDRA Vs. HARI NARAIN

JUDGEMENT

(1.) A question of law has been raised by the learned Counsel for the appellants that whether seeking dissolution of partnership firm through the court under Section 44 of the Indian Partnership Act, 1932 is statutory right and not an issue which can be referred to the arbitrator?

(2.) The facts of the case are that the plaintiffs-appellants filed one suit on 23.10.1992 seeking decree for dissolution of the partnership firm M/s. Vishva Jyoti Theater and for rendition of account in the court of District Judge, Bikaner. According to the appellants in the firm M/s. Vishva Jyoti Theatre of Bikaner, the plaintiffs share is 1/3rd and for this partnership, a partnership, deed was executed on 4.10.1983. Defendant No. 1, one of partner in the firm, is the uncle of the plaintiffs and another is defendant No. 2 who is cousin elder brother of the plaintiffs. According to the plaintiffs, all the books of account are lying with the defendants and in fact they were managing the affairs of the firm being eldest in the family also. In the year 1972, when the plaintiffs enquired about the financial position of the firm then the defendants orally informed the plaintiffs that the firm is running in losses and all capital has already perished and the firm is in debt. However, the plaintiffs were not shown the books of account etc. The plaintiffs pleaded that since 1983 till the suit was filed in the year 1992, picture hall of the firm never remained closed and some times it earned rent of Rs. 19,000/ - per week and then Rs. 8000/ - per week, against total expenditure of Rs. 20,000/ - per month and in view of that the cinema hall was giving income of Rs. 56,000/ - per month and there was no question of loss to the firm. The plaintiffs on 4.10.1983 again demanded the accounts from the defendants but they avoided to show the books of accounts and complete accounts. The plaintiffs tried to take help of other relatives but that effort also failed. Ultimately, the plaintiffs served notice dated 17.3.1990 through their advocate upon defendants asking them to dissolve the firm and give the accounts. Said notice was received by the defendants on 19.3.1990, but they by their goody-goody talks, misled the plaintiffs and did not give the accounts to the plaintiffs, however, on 20.3.1991 the defendants with the help of the relatives, pressed upon the plaintiffs to settle in the manner that the defendants by 19.6.1991 will give Rs. 25,00,000/ - which shall be against the account of the firm's goods will etc. also, the defendants will show the books of accounts to the plaintiffs and satisfy with the accounts, the defendants will pay the remaining amount as per the accounts if there will be any dues of the plaintiffs the firm. The plaintiffs contended that inspite of that settlement, the defendants neither paid any amount to the plaintiffs nor shown the accounts and, therefore, the subsequent agreement which was obtained by misrepresentation of facts and law came to an end.

(3.) The plaintiffs thereafter pleaded that the defendants excluded the plaintiffs from the firm and earning the profits from the business of the firm and they opened new bank account with their own signatures. With this allegation, the plaintiffs pleaded that now it is necessary to obtain the dissolution of the firm through the court decree under Section 44 of the Indian Partnership Act, 1932 and to get the rendition of accounts. The plaintiffs, therefore, filed the suit for dissolution of the firm with declaration of date of dissolution of the firm and with decree for rendition of accounts and appointment of receiver etc.