BANWARI LAL Vs. ROOP KISHORE

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for dissolution of partnership and for accounts. The plaintiff Roop Kishore alleged in his plaint that he had been a partner with the defendants Banwari Lal (appellant) and Bhola Nath in a registered firm going by the name of Ram Sarup Roop Kishore. He alleged that the partnership was a partnership at will, that his own share was eight annas and that the two partners Bhola Nath and Banwari Lal had shares of four annas each. In his plaint he stated that 2f years earlier, that is to say, in about February 1937, the defendant Banwari Lal, who had worked in the firm and maintained accounts, stopped working in the firm saying that he did not wish to be a partner in the firm. Shortly before this date, Banwari Lal had made an application under the Encumbered Estates Act and had made no mention of his being a partner in the firm in that application. The application became Suit No. 93 of 1936 of the Court of the Special Judge, second grade, Mainpuri, and the plaintiff had filed a claim before the Special Judge to which the defendant-appellant Banwari Lal replied by stating that he was still a partner in the firm and that the firm was not entitled to get a decree against him in those proceedings under the Encumbered Estates Act. In effect, what the defendant contended in those proceedings was that there was not up to that date a debt in existence. This objection was upheld-by the Special Judge who rejected the claim of the present plaintiff in those proceedings. Thereafter the plaintiff issued notices in writing on 6 November 1939 as required by Section 43 (1), Partnership Act, and on 15 November 1939 he filed the present suit.

(2.) The defendant, despite the pleadings on which he had relied in the proceedings under the Encumbered Estates Act, contended that he had dissolved the partnership and left the firm on 9 February 1937. In para. 21 of his written statement he referred to the proceedings under the Encumbered Estates Act and he said that as no claim was put forward by any creditor up to 30 November 1939 or before the decisions under Section 14 of the Special Judge, therefore if any amount was found due by the partners of the firm to any creditor, the claim for the same has become extinct as against the contesting defendant and it cannot be realised. The contesting defendant is free from the liability of such an amount, i.e., if after the sale according to law, of all the assets of the said firm, and paying off the creditors, any creditor is left to be paid, he is not entitled to get any amount from the contesting defendant. Prima facie this was not a denial of liability to the other partners of the firm but a denial of liability to any creditor of the firm. A number of issues were framed. Among these were, issue 3 : "How far is defendant 1 liable in the firm on "Magh Badi" 13, Sambat 1993 (9 February 1937)" and issue 4 : "Whether the suit is not maintainable". The learned Munsif dealt with issue 3 along with issues 1 and 2 and held that the defendant Banwari Lal had not retired from the firm in February 1937 because he had failed to give notice in writing to the other partners of his intention to retire in accordance with the provisions of Section 32 (1). That section provides as follows: A partner may retire, (a) with the consent of all the other partners, (b) in accordance with an express agreement by the partners, or (c) where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.

(3.) He took the view that the partnership had been dissolved by the plaintiff giving a notice on 6 November 1939. Such a notice complied with the provisions of Section 43(1) which provides that Where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm.