IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 RSA.No. 759 of 2009() --------------------- AS.186/2007 of .DISTRICT COURT, ERNAKULAM OS.305/2005 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2 ------------------------------------------------------------------------- 1. BIJURAJ.K, 37 YEARS, S/O RAJAPPAN NAIR BINDU VIHAR, CHAKKUNGAL ROAD PALARIVATTOM , KOCHI-682 025 2. M/S P.V.R. MARGINLESS MARKET (MISTAKENLY PRINTED AS MARINLESS) PALARIVATTOM KOCHI- 682 025 PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER BIJURAJ. K, AGED 37 YEARS, S/O RAJAPPAN NAIR, BINDHU VIHAR CHAKKUNGAL ROAD, PALARIVATTOM, KOCHI-682 025 BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------------------------------- ANOOP.G AGED 35 YEARS, S/O GOPINATHAN NAIR AMBILI NIVAS, 111/864, KONNULLY LANE, K.K. ROAD B.M.C.P.O, KAKKANAD, KOCHI 682 021 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1667 OF 2009 IN R.S.A. NO. 759 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 28.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 759 of 2009 ---------------------------------------- Dated this the 28th day of July, 2009 JUDGMENT The second appeal is directed against the judgment and decree in A.S. No. 186/2007 on the file of the District Court, Ernakulam which arises from the judgment and decree in O.S. No. 305/2005 on the file of the I Additional Sub court, Ernakulam. The suit was filed for declaration to the effect that the 1st defendant-firm is dissolved at will and for rendition of accounts .In appeal filed by the defendants the lower appellate court confirmed the trial court's judgment and decree . Hence the Second Appeal. Defendants 1 and 2 are the appellants in this Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff and 2nd defendant are cousins. Their fathers are direct brothers whom had jointly conducted grocery business by name PVR stores at Palarivattom Kochi, for several decades. It is the further case of the plaintiff that he and the 2nd defendant intended to start a new business under the name and style M/s PVR Marginless Market as partners under an oral agreement from 16.11.2000 onwards and that the terms and conditions of the said partnership firm was reduced into writing on stamp paperNo.5632 dated 8.2.2001 . Consequently the 1st defendant partnership firm (hereinafter referred to as the 1st defendant -firm) came R.S.A. No. 759 of 2009 -2- into existence. It is further pleaded that the plaintiff contributed a sum of Rs. 20 lakhs for the formation of the 1st defendant -firm and had actually participated in the business from the beginning itself . The 2nd defendant in his capacity as the Managing partner kept all assets of the 1st defendant-firm including the profit of business without being disbursed anything to the plaintiff. The 2nd defendant being the Managing Partner of the firm had entrusted with the task of registering the 1st defendant-firm with the Registrar of Firms and the Sales Tax Authorities through a Chartered Accountant. The plaintiff subsequently came to know that the 2nd defendant has not applied for Sales Tax registration nor registered the 1st defendant-firm. In the above said circumstances the suit was filed for a declaration that the 1st defendant firm is dissolved 'at will' and a direction to the 2nd defendant to provide true and correct accounts of the business of the 1st defendant-firm and to pay the plaintiff's share of assets and profits. 3. The 2nd defendant interalia contended that the 1st defendant firm is not in existence with the partnership of plaintiff and 2nd defendant,that he and the plaintiff are not partners and that the 2nd defendant is not the Managing partner of the alleged firm. It is further pleaded that the 2nd defendant and his father are running a business concern under the name PVR Marginless Supermarket .There was a proposal in the year 2000 for constituting a partnership firm by name R.S.A. No. 759 of 2009 -3- PVR Marginless market by the plaintiff and the 2nd defendant. But the said proposal was not materialised due to the non- co-operation of the plaintiff. It is further contended that the 1st defendant -firm is a proprietory concern of himself that since there is no constitution of partnership firm as alleged by the plaintiff and no investment was made by the plaintiff in the business conducted by the 2nd defendant, the plaintiff is not entitled to any of the reliefs as claimed in the suit. 3. On the plaintiff's side PWs 1 to 3 were examined and Exts. A1 to A11 were marked. On the defendants' side DW1 was examined and no documentary evidence was produced . Ext.C1 was marked as the court exhibit. 4. In support of the contentions of the the parties the trial court examined all the oral and documentary evidence in detail, The trial court found that Ext.A8 reply notice sent by the 2nd defendant which would go to show the partnership agreement was executed on 8.2.2001 between the plaintiff and the 2nd defendant for the purpose of conducting partnership business under the name and style M/s PVR Marginless Market. But in cross examination the 2nd defendant has taken a contradictory stand. Finally, the forwarding of Ext.A8 reply notice by the 2nd defendant himself and the execution of partnership deed were admitted by the 2nd defendant. Ext.A1 is the copy of the partnership deed. Apart from the R.S.A. No. 759 of 2009 -4- admission of the 2nd defendant PW3 who is the Chartered Accountant , testified that he had prepared the draft partnership deed for the plaintiff and the 2nd defendant. The trial court convinced that Ext.A1 partnership deed is executed, followed by Ext.A2, A2(a) copies of the declaration forms signed by both the plaintiff and 2nd defendant dated 8.2.2001 under the Indian Partnership Act and Ext.A3 certificate dated 8.2.2001 in the 2nd defendant's letter pad for getting exemption from the Sales Tax registration. After considering the oral evidence tendered by the plaintiff and his witnesses and the documentary evidence viz. Exts A1, A2, A2(a) A3 and A8, the trial court concluded that there is execution of Ext.A1 partnership deed as stated by the plaintiff. The trial court also held that there is no evidence to show that the 2nd defendant had provided the statement of accounts during any of the periods to the plaintiff, that the plaintiff being a partner is entitled to have access to the profit and loss account of the 1st defendant firm, that since the 1st defendant firm is not dissolved and the 2nd defendant kept out the plaintiff from the 1st defendant firm' business , the plaintiff is entitled for the declaration to dissolve the partnership firm at his will. On the basis of the said finding a preliminary decree was passed as prayed for in the plaint 5. The defendants 1 and 2 filed appeal before the lower appellate court.. The lower appellate court also examined the very same set of oral and documentary evidence. The lower appellate court also R.S.A. No. 759 of 2009 -5- concurred with the trial court's view regarding the circumstances leading to the formation of the 1st defendant firm and the execution of the Ext.A1 partnership deed. The lower appellate court also held that the plaintiff and 2nd defendant are the partners of the 1st defendant firm and confirmed the decree and judgment passed by the trial court. From an analysis of the facts, evidence and circumstances it has to be inferred that the 1st defendant -firm came into existence as per Ext.A1 partnership deed, that the plaintiff and 2nd defendant are the partners of the 1st defendant-firm and that the plaintiff is entitled to get a decree as prayed for in the suit. So, in the given circumstances it is not possible to take a different view other than the views taken by the courts below. The questions are correctly answered by the courts below on the basis of facts evidence and circumstances. . Since the findings of the courts below are purely based on facts, evidence and circumstances I do not find any reason to interfere with the findings entered by the courts below. No questions of law much less any substantial question of law arises for consideration in this appeal. There is also no scope for invoking Section 100 of the C.P.C. This appeal fails and dismissed in limine (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 759 of 2009 ---------------------------- JUDGMENT 27th July, 2009