ASHA RAM Vs. RAM CHANDRA AND ANOTHER

JUDGEMENT

(1.) This appeal is directed against the preliminary decree and judgment dated January 19, 1976, passed by the Additional District Judge, Merta, by which the learned Additional District Judge, in the suit filed by the plaintiff Ram Chandra, determined the proportionate share of the parties in the partnership and declared that the partnership shall be deemed to have been dissolved on 17.1.68.

(2.) Plaintiff Ram Chandra filed a suit in the Court of the District Judge, Merta, for rendition of the accounts with respect to the factory of the firm Asiatic Marble and Minerals Industries Limited, Makrana. The case of the plaintiff, as set up in the plaint, is that on 8.2.1959, he purchased a plot of land from Sadul Singh Kacchhawaha (Resident of Makrana) for a consideration of Rs. 5000/- for the installation of a factory premises. After the purchase of the land, he made constructions and installed the factory for cutting, polishing and sawing marble. He was the sole proprietor of the firm and for the installation of the factory he took Rs. 10,000/- as loan from the State Government and invested the same in the factory. The factory started working in the year 1960. In the year 1961, he took defendant No.1 Asu Lal alias Asha Ram as a partner in the firm to share equally in the profits earned and to contribute equally to the losses sustained by the factory. In the year 1963, both of them took Madan Lal (defendant No.2) as a partner in the firm. Madan Lal was entitled for 1/4 share in the profit only. It was agreed that the land, over which the factory is installed, will remain the property of the plaintiff and the firm will pay off the loan taken by the plaintiff from the State Government and till the loan of the plaintiff is paid off, the machineries and engine will, also remain the property of the plaintiff. It was, also, agreed that the partnership will be at 'will' and the amount will be invested by the defendant No.1 and the plaintiff will look after the work and in exchange, both will have the equal share in the profits and losses of the firm. After the inclusion of the defendant No.2 as the partner for 1/4 share in the profit only, he was authorised to look after the work of the factory and to keep the accounts. After the inclusion of defendant No.2 as the partner, the plaintiff and the defendant No. 1 were entitled only for six Annas share each in the profits earned and 50% each in the losses sustained. The firm worked upto Deepawali of 1965, and the accounts were rendered to him, but till that date, no profit was earned by the partnership firm. After the Deepawali of 1965, the defendant No.1 opened the account in the name of his relatives and did not make credit entries in the account books of the firm and started mismanaging the factory. He, also, tried to create a new partnership and is not making payment to the State Government of the loan amount and, also, not rendering the accounts. As the defendants were mismanaging the factory and were not keeping the proper accounts, he, therefore, by a registered notice dated January 16, 1967, dissolved the partnership. It was, therefore, prayed that the suit of the plaintiff for rendition of the accounts of the firm M/s. Asiatic Marble and Minerals Industries Limited, Makrana, be decreed in his favour. Alternatively, it was prayed that if this Court comes to the conclusion that the partnership was not dissolved then it may be ordered to be dissolved so that the plaintiff, who was the sole proprietor of the firm, may do his business in the same capacity. A prayer for appointment of a Receiver was, also, made.

(3.) The suit was contested by both the defendants. Defendant No.1 Asha Ram emphatically denied the averments made by the plaintiff in the plaint. He denied that the plaintiff has purchased the land for the construction of the factory from Sadul Singh and stated that the alleged sale deed by Sadul Singh made in favour of the plaintiff is a bogus document. According to him, the land was actually purchased by him for installation of a factory from one Modu Balai. It was the defendant No.1, who purchased the corner plot of four Bighas ten Biswas out of the total land of 30 Bighas 10 Biswas of Khasra No.711 for a consideration of Rs. 600/- and the price was paid to him in two instalments. Modu Balai was a member of Scheduled Caste and, therefore, no sale deed was executed but the possession of the land was taken and on this plot of land, the foundation stone was laid by the defendant No.1 on October 22,1958. He, also, denied making any investment by the plaintiff in the construction of the factory premises or in the purchase of the machineries etc. Whatever the capital was invested in the construction of the factory building or in the purchase of the machineries, was invested by the defendant No. 1. He invested Rs. 48,845.60p. upto October 31,1960, and further invested Rs. 7967.80p. between 1.11.60 to 31.12.60, and Rs. 7492.75p. between 1.1.62 to 27.10.62, in this factory. It is, also, stated in the written statement that the amount invested by the defendant No.1 was of his mother Smt. Kesar Devi (widow of Gulla Ram) and his sister-in-law Smt. Rukmani (widow of Poosa Ram), who had the spare money with them and wanted to invest the same in some business without disclosing their identity and, therefore, they invested their money in the factory in the name of the defendant No.1 and as the defendant No.1 was a government servant, therefore, he took the plaintiff, who was his close friend and had an experience in the marble business, as a partner in the firm to look after the business of the firm. He (plaintiff) was merely a working partner and, therefore, he was taken in the firm on 1/4 share in the profits and losses of the factory. It is further stated that it was agreed between the plaintiff and the defendant No.1 that whenever it will be felt that the plaintiff is not carrying on the work of the factory properly, he will be turned out from the partnership. This agreement between the plaintiff and the defendant No.1 took place in the first week of June, 1958. The plaintiff used to make credit entries of the amount sent by the defendant No.1 in his own name but when it was detected by the defendant No.1 in the month of September, 1959, then the plaintiff debited the amount of Rs. 10,100/- sent by the defendant No.1 and if was credited by the plaintiff in his own name. It was, however, admitted that the plaintiff took a loan of Rs. 10,000/- from the State Government for the installation of the factory, but invested only Rs. 9875/- out of the amount of Rs. 10,000/- and this amount too was taken away by the plaintiff from the factory for his own expenses. It is, also, stated in the written statement that this factory started working in the year 1960, under the management of the plaintiff, but it was running in loss due to the slackness and mismanagement of the plaintiff and, therefore, the defendant No.1 thought it proper to turn out the plaintiff from the partnership firm and the partnership was dissolved in the month of September, 1962. As the partnership was dissolved in the month of September, 1962, the plaintiff is, therefore, neither entitled for any profit in the partnership firm after September, 1962, nor is he entitled for the rendition of the accounts of the firm, as the suit filed by the plaintiff is barred by time. After removing the plaintiff from the partnership firm, the defendant No.1 took the defendant No.2 for managing this factory and the defendant No.2 who was to manage he factory and to keep the accounts, was entitled for 1/4 share in the profits, only, and this partnership too carne to an end when the Receiver was appointed to take over the charge of the factory.