SEODOYAL KHEMKA Vs. JOHARMULL MANMULL

JUDGEMENT

(1.) The decision of the issues in this case involves the determination of some interesting questions relating to practice. The action was brought by the plaintiffs as three members of the firm of Nathuram Ramkissen against the defendants who are, they allege, the other members of that firm. The action is brought for a declaration that the firm is dissolved, for accounts, enquiries and incidental relief.

(2.) The facts are as follows : The firm of Nathuram Ramkissen has been in existence for some seventy years, and from time to time has been composed of different members. On the 28th June, 1918, the terms and conditions, under which the partnership was from that date to be regulated and carried on, were set out in a memorandum of agreement, called the Partnership Agreement. On the 18 March, 1918, by a document of that date, the partnership was dissolved, but it was agreed by all parties at the trial that that notice of dissolution was not acted upon at the time, and that the partnership was continued until the 14 July, 1919, when it was, dissolved, except in so far as it related to one of the businesses carried on by the partnership, the Banianship agreement with Greaves, Cotton & Co. which, under the special provisions of that; Banianship agreement, was continued until August, 1919. The partnership, having come to an end, on the 10 February, 1920, the plaintiffs, discovering; that some of the defendants had been using the firm name of Nathuram Ramkissen in respect of businesses other than those carried on by the partnership, complained that there had been a wrongful user by those defendants of the partnership name. As a sequel to that allegation, some of the <JGN>Page</JGN> 2 of 8 defendants asserted that the partnership had not come to an end; that all that had happened was that on the 14 July, 1919, certain members of the partnership had retired from it (members other than those who admitted using the firm name for their private purposes), and that the partners who remained were entitled to use the firm name after the retirement of those other partners. That involved an important issue of fact between the members of the partnership, and one which the defendants have persisted in raising right up to the hearing of the suit. In paragraph 4 of the written statement of the defendants Joharmull Khemka, Manmull Khemka, Gungadhur and Dungarmull, it is alleged that the plaintiffs, by mutual consent of the partners, retired from the partnership, and that thereupon the assets of the partnership became the property of the remaining partners, except the shares of the retiring partners which were to be repaid to them. Now, the partnership property is of great value, and a large portion of the partnership property was after the dissolution, at first by consent, and since the 5 May, 1915, under an arbitration agreement signed by all the partners, divided and distributed among the several members of the partnership in proportion to their shares under the Partnership Agreement. The time for completing the distribution of the estate, however, under the arbitration agreement, although extended from time to time, has long since expired, and the plaintiffs allege that owing to the obstructive tactics of the defendants 1 to 3, the arbitration proceedings have become ineffective and of little value, and they seek to have the partnership assets allocated to the several partners, in so far as they are not already distributed, under an order of the Court.

(3.) On the 3 January, 1922, this suit was commenced, and on the 6 September, 1922, Joharmull Khemka (one of the partners) died. Up till the time when this suit was heard the real issue between the plaintiffs and defendants 1 to 3 - there is no issue between the plaintiffs and the other defendants - was whether there had been a dissolution, or whether there had been merely a retirement of certain of the members from the partnership. After counsel for the plaintiff had opened the case at the hearing however, the Advocate-General admitted that there had been a. dissolution of the partnership, and he gave up the point that there had been a. retirement of some of the partners by consent of the other partners. It was impossible in face of the facts which the plaintiffs were in a position to prove, to persist in the allegation that there was not a dissolution, but merely a retiring of certain of the partners. The Advocate General, however, after he had given up-this main contention did not abandon his defence altogether, but he took two points, either of which, he contended in his favour, must result in the suit being, dismissed. The points were these. In, the first place he contended that the suit, was wrongly constituted on the ground1 that the defendant No. 1 set out in the plaint Joharmull Manmull, was sued as a firm, and that he was in a position to prove that Joharmull Manmull was not the firm, and that neither at the present time nor at any material time was there such a firm as Joharmull Manmull. He further contended that, assuming that he satisfied the Court that there was no such firm as Joharmull Manmull, the suit was wrongly constituted, because on the authority of two cases, Hamdoyal V/s. Junmenjoy Goondoo (1887) 14 Cal. 791 and Ambica Charan Guha V/s. Tarini Charan Chanda (1913) 18 C.W.N. 464, it was necessary for <JGN>Page</JGN> 3 of 8 the plaintiffs in a suit for partnership accounts to join as parties all the members of the partnership, and if Joharmull Manmull, the firm, was not in, existence, the suit was wrongly constituted because two members of the partnership, Joharmull Khemka and Manmull Khemka, were not parties to the suit, and therefore, by reason of the provisions of Section 22 and Art. 106 of Schedule I of the Limitation. Act (IX of 1908), the suit must be dismissed. Now, by Section 22 of the Limitation Act of 1908, it is provided that "Where after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall as regards, him be deemed to have been instituted when he was so made a party," and by Article 106, Schedule I of the Limitation Act, the limitation for the time within which a suit for an account or for a share of a dissolved partnership must be brought is three years from the date of the dissolution. The Advocate-General therefore contended that whether the dissolution took place on the 9 April or on the 14 July, in either case an application for leave to add Joharmull Khemka and Manmull Khemka as defendants, or to substitute the name of those two persons for Joharmull Manmull, could not now be entertained by the Court, because any application for such an amendment would, the contended, be an application to put a new party upon the record, more than three years after the date of the dissolution of partnership. Now, there is authority for the proposition that the Court has jurisdiction to add or substitute parties suo motu, untrammelled by the provisions of the Limitation Act, under Order 1, Rule 9 or Order 1, Rule 10 Sub-rule 2; but it is in my opinion, rightly and finally settled that the Court, acting on its own initiative, is no more entitled when making amendments to effect the substitution or addition of parties under these two Orders, to disregard the provisions of the Limitation Act, than it would be entitled so to do if the amendment was made upon an application by one of the parties vide the case of Ram Kinkar Biswas V/s. Ahhil Chandra Ghaudhuri (1907) 35 Cal. 519, Imam Ali V/s. Bajnath Ram Sahu (1906) 33 Cal. 613. Imam-ud- din V/s. Liladhar (1892) 14 All. 524, Guruvayya Gouda y. Dattatraya Anant (1903) 28 B. 11, and the case of Ambica Charan Guha (1913) 18 C.W.N. 464, which I have already referred to.