ABANI KUMAR MUKHERJEE Vs. NAND KISHORE

JUDGEMENT

(1.) THIS is Civil Miscellaneous Appeal against the Order dated, September 20, 1980 of the learned Additional District Judge No. 5, Jaipur City allowing the application of plaintiff-respondents Nos. 1 and 2 under Order 40, Rule 1, C. P. C.

(2.) THE facts relating to this miscellaneous appeal are these. Hotel 'Kanti Chandra Palace' is a registered partnership concern. A partnership deed was executed on September 15, 1976. THE parties are all partners of the said firm. Appellant No. 1, Abani Kumar Mukherjee, is the owner of land and building. He agreed to lease out land and building measuring 25'00 sq. yards situated at Hathi Babu-ka-bagh, Station Road. Jaipur including 3000 sq. ft. underground for the business of the Firm and he was to receive a sum of Rs. 2000/- p .m. as the lease money and was also to be a partner to share the profits and losses. Respondents Nos. 1 and 2 were required to invest a sum of about Rs. 2 lacs in the additions alterations and furnishing of the hotel 'Kanti Chandra Palace'. It is said that a sum of Rs. 2,23,102.81 was invested by respondents Nos. 1 and 2 towards the partnership business and the Hotel was inaugurated by one Girdhari Lal Bhargava on June 7, 1977 and started functioning thereafter. All the partners were to manage the affairs of the partnership business, but the appellants started placing obstructions in the functioning of respondents Nos. 1 and 2 in the management of the Partnership Concern and excluded them from managing the affairs of the business. THE appellants, it is said, were not maintaining proper accounts and were squandering the funds of the partnership concern. Not only this, in part of the leased out premises they also started another Hotel 'Ishan Chandra Palace'. THE staff appointed earlier by respondents was removed and new persons were appointed to manage the business. THE respondents, therefore, filed a suit for injunction and for appointment of a receiver against the appellants.

(3.) IT cannot be disputed that there exists a partnership firm though the appellants have disputed in their reply to the application under Order 39, Rr. 1 and 2 C. P. C. the legality of a registration of the partnership firm. According to them because by the time it was registered Alok Kumar Mukherjee, appellant No. 3, had attained majority and he did not sign it and, therefore, the registration is not legal. IT means that the appellants even challenge the legality of the registration of the partnership A look at the partnership deed, dated September 15, 1976 will show that Clause 11 deals with management. IT is to the following effect: "That the business of the partnership shall be carried on under the general supervision of all the partners diligently and they shall manage the affairs of the firm in greatest advantageous manner as a prudent man can do so. The party of the first part will specially apply herself to the supervision of the business and the party of the sixth part would also do the same on the attainment of majority on 10-21977". IT is contended by the learned Advocate for the appellants that it was the party of the first part who was under this clause to apply himself specifically to the supervision of the business and respondents Nos. 1 and 2 had only a right of general supervision. Therefore, if the appellant No. 1 is managing the ffairs of the partnership business, he is doing so under clause 11 and it cannot be said that respondents Nos. 1 and 2 have been excluded from taking part in the management of the partnership business. The relevant allegations about the exclusion of respondents Nos. 1 and 2 from the management of the business are contained more specifically in para No. 23 of the application under Order 39, Rules 1 & 2 C. P. C. IT is said that the income of the hotel is not being deposited in Bank. The accounts are not being properly maintained and respondents Nos. 1 and 2 have been excluded from the partnership business. IT is also mentioned in Para 25 that the employees appointed earlier by the parties were also turned out and others were employed by the appellants. The other allegation is that in part of the leased out premises Hotel 'Ishan Chandra Palace' has been opened. Even the appellants do not dispute that in a part of the building Hotel 'Ishan Chandra Palace' is being run by D. K. Mukherjee who is the real brother of appellant No. 1. IT is also not disputed that appellant No. 1 is the owner of that property also. According to respondents Nos. 1 and 2 at the time when the partnership agreement was entered into about 2500 sq. yards of land and building were leased out, part of the leased premises were on rent with Khadi Gramodyog Commission. They were to be handed over to the partnership business on vacation by the lessees. After they were vacated, the office of 'Kanti Chandra Palace Hotel' functioned in them as it appears from the report of the Commissioner appointed by the Court. Even the appellants admit that this portion in which Hotel Ishan Chandra Palace is being run was given on rent by appellant No. 1 to his own brother D. K. Mukherjee. But they say that it was not part of the leased premises and whatever was leased out to the partnership was given possession of to the partnership concern. The matter cannot be decided here as to whether the premises in which Hotel 'Ishan Chandra Palace' is being run is part of the leased out premises of the partnership or not? IT is a matter which can only be decided before a proper forum after proper evidence. But this much can be said that one brother of appellant No. 1 himself is running a Hotel in the name and style of Hotel 'Ishan Chandra Palace' in a part of the building in which the partnership business is being run. IT may or may not be part of the leased out premises and as already observed above it will be decided later on. The respondents as per their saying have invested a sum of more than Rs. 2 lacs and though this investment is disputed on behalf of the appellants, it can be said that huge amount has been invested by respondents Nos. 1 and 2 in partnership business. IT appears that the business is being managed exclusively by the appellants and so far as respondents Nos. 1 and 2 are concerned it appears that they are not allowed to take part in the management of the partnership business though it is said on behalf of the appellants that they can come, inspect the accounts and watch the management. In case of partnership business if some of the partners are excluded from management it is not possible to say as to what income accrues from the business and whether the same is being misused being exclusively in the hands of some of the partners who are managing the affairs of the partnership business. According to the appellants since they have taken over management, the income has increased manyfold as will appear from the accounts furnished by them. But to my mind if the accounts are scrutinised it will be clear that in case Rs. 2000/- p. m. as lease money payable to appellant No. 1 and about Rs. 2000/-p. m. payable as interest to respondents Nos. 1 and 2 on their investments are taken into consideration, the partnership concern cannot be said to be running in profit. Though, merely because a partnership business is running in loss, it is not sufficient to appoint a receiver of the same, but if there are allegations that the accounts are not being properly maintained, day-to-day income is not being deposited in Bank and other partners are excluded from the management to which they are entitled under the law as well as under Clause 11 of the partnership deed, it can hardly be said that the exercise of discretion by the trial Court in appointing a receiver, calls for interference in this appeal.