IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 AS.No. 502 of 1998() ------------------------- OS.192/1991 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S)/PLAIANTIFF -------------------------------- LOKANADHA BANARJI ALIAS VIJAYAN AND LOKANADHAN S/O.KRISHNAN, KOZHIPARAMBIL HOUSE, PARTNER OF ARCHANA JEWELLERY. THRISSUR, NOW UNEMPLOYED, RESIDING AT CHELUR MANA QUARTERS, HOUSE NO.99 AT POOTHOLE, PIN - 680 004,THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S)/DEFENDANTS 1 TO 4 & 6 TO 17 --------------------------------------------------------- 1. MRS. K.G.KAMALAKSHY, W/O. LATE PRABHAKARAN, PALLIYIL HOUSE, PARTNER OF ARCHANA JEWELLERY. THRISSUR, RESIDING AT MANGATTUKARA P.O., ANTHIKAD, THRISSUR TALUK. 2. MR.K.B.SANJEEV, S/O. BHASKARAN MSTER, KODAPPULLY HOUSE, PARTNER ARCHANA JEWELLERY, THRISSUR, RESIDING AT P.O., ALAPPAD, THRISSUR. 3. MR.M.A.SATHYAN, S/O.AYYAPPANKUTTY MELEDATH HOUSE, PARTNER, ARCHANA JEWELLERY, THRISSUR, RESIDING AT P.O.KIZHAKKUMMURI, PERINGOTTUKARA, THRISSUR TALUK. 4. MR. P.K.SUNIL,S/O.KUNJIMAMAN, POYYARA HOUSE, PARTNER, ARCHANA JEWELLEY, THRISSUR RESIDING AT KALLOOR P.O., THICHUR. 5. MR.C.R.GOPALAN, CHERUVIL HOUSE, PARTNER, ARCHANA JEWELLERY, THRISSUR, P.O.VLAPPAD, CHAVAKKAD TALUK. 6. MR. K.C.VALSAN, S/O.KRISHNANKUTTY, CHEMBIPARAMBIL HOUSE, PARTNER, ARCHANA JEWELLERY, TRICHUR, P.O.NATTIKA, CHAVAKKADM TALUK. .........2/-... ...2... 7. MR.K.R.PUSHPANGADHAN, S/O.RAMANKUNJI, KOLLARA HOUSE, PARTNER, ARCHANA JEWELLERY, RESIDING AT KANIMANGALAM, TRICHUR. 8. MRS. SAROJA KRISHNAN, W/O.T.K.KRISHNAN THAZHANATHU VEETTIL HOUSE, PARTNER, ARCHANA JEWELLERY,TRICHUR, P.O.KATTOOR,TRICHUR. 9. MRS. LEELA APPUNNY, W/O.APPUNNY, THANAPARAMBIL HOUSE, PARTNER, ARCHANA JEWELLERY,THRISSUR RESIDING AT P.O.THAMARYOOR, KOTTAPADI, PIN - 680 505, CHVAKKAD TALUK. 10. MR.P.T.SANKARANARAYANAN,S/O.THANI, POTTEKKATTU HOUSE, PARTNER, ARCHANA JEWELLERY, TRICHUR, P.O.KIZHUPPULLIKKARA, PERINGOTTUKARA, THRISSUR TALUK. 11. MR.P.KUMARAN, S/O.KRISHNAN, PARAKKOTTIL HOUSE, EX.M.L.A., AND PARTNER, ARCHANA JEWELLERY,TRICHUR, RESIDING AT SREEKRISHNAPURAM, P.O.MANNARGHAT, PALAKKAD DISTRICT. 12. MR.K.P. SURENDRANADHAN,S/O.PARAN, KODAPPULLY HOUSE, TRICHUR,PARTNER, ARCHANA JEWELLERY, TRICHUR, P.O.ALAPPAD, TRICHUR TALUK. 13. JANAKO, W/O. DECEASED KRISHNAKUMAR, KARUVATHIL HOUSE, CHAKKARAPADAM, PERINJANAM, TRICHUR DISTRICT. 14. PREMKUMAR, S/O. DECEASED KRISHNAKUMAR, KARUVATHIL HOUSE, CHAKKARAPADAM, PERINJANAM, TRICHUR DISTRICT. 15. MADHUKUMAR,S/O.LATE KRISHNAKUMAR, KARUVATHIL HOUSE, CHAKKARAPADAM, PERINJANAM, TRICHUR DISTRICT. 16. RAJKUMAR, KRISHNAKUMAR, KARUVATHIL HOUSE, CHAKKARAPADAM, PERINJANAM, TRICHUR DISTRICT. R4 TO 11,13,15,16 BY ADVS. SRI.N.SUBRAMANIAN SRI.M.S.NARAYANAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ M.N.KRISHNAN, J -------------------------------- A.S.NO.502 OF 1998 ----------------------------------- Dated this the 26th day of November, 2010 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judges Court, Thrichur in O.S.No.192/1991. The suit is one for dissolution of the partnership firm and for accounting. According to the plaintiff Archana Jewellery situated in Municipal Office, Thrichur is the partnership concern with the object of the firm is to manufacture and deal with articles and ornaments made of gold and silver. It is the case that the partnership firm was constituted in the year 1977 with 18 person and later 5 members retired and third defendant was reinducted and thus there had been 14 partners. The plaintiff's share of contribution is Rs.97,500/- and therefore, the plaintiff seeks for dissolution of the partnership with accounting. On the other hand, the contesting defendants would contend that there has been no partnership at all and the procedure adopted was to get some money from the persons and run the shop and it was an exclusively proprietary concern of one late Prabhakaran on whose death the first defendant has become the proprietrix and therefore the suit is not liable to be entertained. A.S.NO.502 OF 1998 2 On a consideration of the materials the trial Court has dismissed the suit and against that decision the present appeal is preferred by the plaintiff. Heard the counsel for both sides. This appears to be a peculiar case of a partnership when there is a total denial of the existence of a partnership. The plaintiff would contend that as early as in the year 1977 a partnership with 18 persons were constituted and in the process of time 5 persons retired and thereafter third defendant was inducted into the partnership and thus the partnership was reconstituted with 14 persons. The plaintiff would contend that he had invested Rs.97,500/- in the partnership. The case of the contesting defendant is of a total denial of the existence of any partnership. According to them it is a proprietary concern of one late Prabhakaran and on his death it is taken over by his widow the first defendant and the licence under the Gold Control Act initially was in the name of Prabhakaran and on his death on the present proprietrix namely the first defendant. The learned trial judge considered the impact of the Gold Control Act and has also found that the one is not expected or is entitled to transfer the licence given in one person's name and if it is done it is violative of the provisions of the Act and it will amount to a contract hit by Section 23 of the Indian Contract Act. If really there was a partnership concern in existence consisting of 14 members A.S.NO.502 OF 1998 3 certainly it should have been the licence should have been taken in the name of an individual with the qualification that he is the Managing Partner or the competent person under the terms of the partnership. But the licence issued in this case is exclusively in the name of the first defendant as an individual and therefore, a document which goes to the root of the matter namely the Gold licence when it is stands in the name of the individual it has to be held that the onus of proof to show the existence of a partnership is very high on the plaintiff. Now the magnacarta of the plaintiff is some notice received wherein the general body is convened to discuss about some matters wherein the word used is 'shareholder' and not a partner. If really there had been a partnership in existence for the last 33 years, I am confident that at least there would be one scrap of paper pointing out the existence of the same. It has also to be remembered that the plaintiff have got a definite case that a partnership deed is written but he is not in custody. If there is a partnership deed it is imperative of the parties to produce the same so that then only the court can find out regarding the rights of a partner and also the terms of partnership. Even if the document is in the possession of the opposite side, law enables under Section 66 of the Indian Evidence Act to call for the document and getting an explanation from the person who is alleged to be in possession of that document. Here except for the A.S.NO.502 OF 1998 4 mere ipsidixit of the plaintiff there are no materials forthcoming to show about the existence of a written partnership. When the Court is kept in the dark about the partnership its terms and conditions and when there is a specific stout denial of the existence of the very partnership then unless there is some acceptable evidence to prove the same the Court will be only a helpless position to find in favour of the plaintiff. So the two important circumstances noted down by the trial Court, one is regarding the Gold licence in the name of the first defendant, secondly non production of the partnership, thirdly the non production of any scrap of paper or documents to evidence the existence of a partnership will all militate against the case of the plaintiff. Therefore, I do not find any reason to interfere with the decision rendered by the trial Court and therefore, the appeal fails and the same is dismissed, but under the circumstances, without any order as to costs. M.N.KRISHNAN, JUDGE pm