Civil Appeal Nos. 6933-6934 and 4411-4412 of 2002. Case: 1. Mohd. Laiquiddin and Anr., 2. Smt. Kamala Devi Misra (Dead) by L.Rs. and Ors. Vs 1. Kamala Devi Misra (Dead) by L.Rs. and Ors., 2. Mohd. Laiquiddin Khan and Anr.. Supreme Court (India)
| Case Number | Civil Appeal Nos. 6933-6934 and 4411-4412 of 2002 |
| Counsel | For Appearing Parties: K. Parasaran, Rakesh Dwivedi, R.F. Nariman, Sr. Advs., A.D.N. Rao, A. Subba Rao, Roy Abraham, Kishore Rai, Seema Jain, Anant akash, Shantanu Krishna, Mukti Choudhary, Preetika Dwivedi, Rahul Dua and Himinder Lal, Advs |
| Judges | Tarun Chatterjee and V.S. Sirpurkar, JJ. |
| Issue | Indian Partnership Act, 1932 - Sections 4, 14, 42 and 48; Constitution of India - Article 136 |
| Citation | JT 2010 (1) SC 440 , 2010 (1) SCALE 227, 2010 (1) AWC 707 (SC), JT 2010 (1) SC 440, (2010) 2 MLJ 820 (SC), (2010) 2 SCC 407 |
| Judgement Date | January 05, 2010 |
| Court | Supreme Court (India) |
Judgment:
Tarun Chatterjee, J.
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These four appeals are directed against the judgment and order dated 9th of April, 2002 passed in second appeal Nos. 1048 & 1050 of 2001 of the High Court of Andhra Pradesh at Hyderabad, by which the High Court had partly allowed the appeals and modified the order dated 17th of October, 2001 of the First Appellate Court, which affirmed the order of the Trial Court decreeing the suit for dissolution of partnership firm and other relief filed by the appellants who are appellants in C.A. Nos. 6933-34 of 2002.
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It may be mentioned that during the pendency of the suit, the original plaintiff died and her legal representatives were substituted as plaintiffs before the trial court. The original defendant also died before the filing of the first appeal, and his legal representatives were brought on record as Appellant Nos. 2 to 6 before the first Appellate Court. For the sake of convenience, the Plaintiffs would be referred to as the 'Appellants' and the Defendants would be referred to as the Respondents'.
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The case made out by the original plaintiff (since deceased) in her plaint was as follows:
Shri Jai Narayan Mishra, original defendant (since deceased) made a proposal to constitute a firm for construction of a cinema theatre on the land of the original plaintiff (since deceased) and on acceptance of the said proposal by her, they executed a deed of partnership dated 26th of June, 1977. Clause 4 of the partnership deed envisaged that the plaintiff's share in the profits would be 2 annas in a rupee. The original plaintiff (since deceased) was receiving Rs. 2,000/- per month from the original defendant (since deceased) in pursuance of Clause 13, which guaranteed that the minimum profit of Rs. 2,000/- per month would be paid to her. The defendant never disclosed to the plaintiff as to what amount was due to her on settling the annual accounts of the firm. The defendant never furnished the statement of accounts to the plaintiff. He never disclosed the amount of profit payable to her towards her two anna share in the business. The defendant mismanaged the business of the firm and manipulated the account books. There was mutual irretrievable distrust between the plaintiff and the defendant and hence it was impossible to get along with the defendant in the business of the firm. The defendant stopped payment of the minimum guarantee profit to the plaintiff with a motive to strain her financial resources. The gravity of distrust assumed such proportions that the plaintiff could not continue as a partner in the firm. The defendant is also guilty of non-furnishing of annual accounts to the plaintiff and hence the suit. The original defendant (since deceased) entered appearance and contested the suit by filing a written statement.. In the written statement, it was, inter alia, alleged as follows:
The value of the land given by the plaintiff for construction of the cinema theatre was only Rs. 70/- per sq. yard in the year 1977. The defendant invested more than Rs. 25 lakhs for the construction of the theatre. He has been maintaining accounts day-to-day in respect of the business of cinema-theatre and no transaction relating to the said business had been concealed from the plaintiff. An extent of 1000 sq. yds. had been acquired by the Government for widening the road out of the total extent of 6808 sq. mts. of the site given by the plaintiff for construction of the cinema theatre and only the remaining land was available for the business of cinema-theatre. The duration of the partnership as per Clause 2 of the partnership deed was 42 years but subsequently it was agreed to give option to the defendant for another period of 20 years. The terms and conditions of the partnership deed were onerous to the defendant. Irrespective of whether the business made profit or not the plaintiff was guaranteed a minimum income of Rs. 2,000/- per month whereas the plaintiff suffered no loss on account of the business running losses. The defendant had been maintaining regular accounts of the firm and after the scrutiny and approval of the plaintiff those accounts were submitted to the Income Tax Department. At the instance of the second son and the General Power of Attorney (GPA) holder of the plaintiff, the defendant stopped payment of minimum profit of Rs. 2,000/- per month to the plaintiff till the clearance of the amount due to Income Tax Department. The defendant had always been ready and willing to pay the amount due to the plaintiff as and when the plaintiff obtained clearance from the Income Tax Department. The plaintiff never whispered any doubt about the correctness of the accounts. The Plaintiff No. 2 who is the GPA holder of the original plaintiff (since deceased) had been acting in a highly irresponsible manner detrimental to the interest of the parties. The alleged gravity of distrust is a result of the willful actions on part of the G.P.A holder of the plaintiff who sought to take advantage of the deteriorating mental and physical condition of the plaintiff. The plaintiff had not issued any notice alleging any contravention of the terms and conditions of the partnership deed and the business was made for a specific period subject to the option of the defendant. The present suit was frivolous and misconceived and therefore was liable to be dismissed with costs.
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By the judgment and order dated 18th of January, 1999, the VIIth Senior Civil Judge, City Civil Court, Hyderabad, decreed the suit and passed a preliminary decree of dissolution and for rendition of accounts. The defendant was further directed to hand over the entire property with allied structure and other materials to the plaintiff.
The trial court framed the following issues for trial:
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Whether the plaintiffs are entitled for dissolution of the partnership firm as prayed for?
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To what relief?
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After examining the oral and documentary evidence adduced by both the parties, and after verifying the relevant provisions of the Partnership Act the Trial Court, inter alia, arrived at the following findings:
The Partnership firm stood dissolved by the death of the original plaintiff (since deceased) on 17th of May, 1996. Since there was no mutual confidence between the parties and as there had been severe disputes since 1988, carrying on the business of the firm became practically impossible. It was further held that since the legal representatives of the original plaintiff (since deceased), the appellants before us, were not agreeable to enter into partnership with the defendant and in view of the dissolution of the partnership due to the death of the original plaintiff, the necessary consequence was rendering of accounts and complying with the other terms of the partnership deed. It was ultimately held that there was deemed dissolution of the partnership firm with effect from 17th of May, 1996 due to the death of the original plaintiff (since deceased) and consequently the appellants, her legal representatives, were entitled for rendition of accounts and to be handed over the entire cinema theatre with allied structures as per Clause 24 of the deed of partnership within three months from the date of the judgment. But the Trial Court recorded a finding that there was no mismanagement by the defendant as alleged in the plaint.
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As noted herein earlier, after the suit was decreed and before an appeal was preferred from the same, the defendant in the said suit died and his legal representatives were brought on record before the First Appellate Court.
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RSA 42/2012. Gauhati High Court
...Mr. Ali, relies upon the decision of Mohammad Laiquiddin and another -vs- Kamala Devi Misra (dead) by LRS and others, reported in (2010) 2 SCC 407 to say that when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the Co......
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Second Appeal No. 865 of 1998. Case: Smt. Shanti Bai Agrawal Vs Smt. Uma Bai Agarwal. Chhattisgarh High Court
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RSA No. 39 of 2008. Case: Sakuntala Sinha Vs Tarun Kumar Sinha and Ors.. Guwahati High Court
...Counsel for the Appellant placing reliance on the decision of the Apex Court Mohammad Laiquiddin and Anr. v. Kamala Devi Misra (dead), (2010) 2 SCC 407 by L Rs and Ors. submits that irrespective of the fact that the Appellant did not respond to the trial and first appeal proceeding, she is ......
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RSA 42/2012. Gauhati High Court
...Mr. Ali, relies upon the decision of Mohammad Laiquiddin and another -vs- Kamala Devi Misra (dead) by LRS and others, reported in (2010) 2 SCC 407 to say that when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the Co......
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Second Appeal No. 865/1998. Case: Shanti Bai Agrawal and Ors. Vs Uma Bai Agarwal and Ors.. Chhattisgarh High Court
...... & decree dated 04.07.1998 passed in Civil Appeal No. 37-A/97 by the Second Additional ... by the appellant against Trilokinath Agarwal, Smt. Usha Kiran Agarwal and Deepak Agrawal for ...13. The Supreme Court in AIR 1996 1300 in between Addanki ..., in (2010) 2 SCC 407 in a case between Mohd. Laiquiddin & Another v. Kamala Devi Misra (Dead) By LRs & Others, the Supreme Court has held as under:. ......
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Second Appeal No. 865 of 1998. Case: Smt. Shanti Bai Agrawal Vs Smt. Uma Bai Agarwal. Chhattisgarh High Court
...right from 1956. He submitted that the partner was only entitled to the value of share and placed his reliance in AIR 1966 SC 1300: (2010) 2 SCC 407 and AIR 1974 SC 1094 and further submits that the defendants' right over the property extinguished by virtue of S. 27 of the Limitation Act, 1......
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RSA No. 39 of 2008. Case: Sakuntala Sinha Vs Tarun Kumar Sinha and Ors.. Guwahati High Court
...Counsel for the Appellant placing reliance on the decision of the Apex Court Mohammad Laiquiddin and Anr. v. Kamala Devi Misra (dead), (2010) 2 SCC 407 by L Rs and Ors. submits that irrespective of the fact that the Appellant did not respond to the trial and first appeal proceeding, she is ......