IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.62 of 1998 Date of decision: 5.8.2010 Prem Chand and others ….. Appellant. Vs. Ankita Soni …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Ajay Sharma, Advocate. For the Respondent : Mr. Dushyant Dadwal, Advocate. Kuldip Singh, J(Oral) This appeal is directed against judgment, decree dated 12.8.1996 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No.4-D/XIII-1996 affirming judgment, decree dated 21.6.1995 passed by learned Senior Sub Judge, Dharamshala in Civil Suit No.163/90. The appeal was filed by Rajo Devi and Satish Kumar Soni who were defendants No.1,2 against Sarita Soni and Ankita Soni respondents No.1,2. Sarita Soni respondent No.1 died and her name was deleted on 22.7.2009. 2. The facts in brief are that Sarita Soni and respondent No.2 had filed a suit for dissolution of partnership and Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… rendition of accounts against Smt. Rajo Devi predecessor-in- interest of appellants (1(a) to 1(g) and Satish Kumar Soni appellant No.2 son of Lala Prem Chand with the allegations that Ashwani Kumar Soni was sole proprietor of M/s. Un-employed Graduate Bus Service, Nagrota Bagwan, District Kangra. Ashwani Kumar Soni had died on 22.8.1989. On the death of Ashwani Kumar Soni, his estate was succeeded by Ankita Soni respondent No.2, Sarita Soni widow and Rajo Devi, mother and predecessor-in-interest of appellants No.1(a) to 1(g). At the time of death of Ashwani Kumar Soni M/s. Un-employed Graduate Bus Service, was having five buses. It has been alleged that no formal partnership was entered between Ankita Soni respondent No.2, Sarita Soni and Rajo Devi but by implication of law, Ankita Soni, Sarita Soni and Rajo Devi had 1/3rd share each in the concern namely M/s. Un-employed Graduate Bus Service. 3. After sudden death of Ashwani Kumar Soni, Sarita Soni was under great mental shock and stress. Rajo Devi and appellant No.2 persuaded Sarita Soni to execute power of attorney in favour of appellant No.2 for smooth running of transport service and therefore, necessary Power of Attorneys were executed. Ankita Soni and Sarita Soni were given to understand that necessary day to day accounts would be regularly maintained. In fact appellant No.2 in essence became an agent for Ankita Soni and Sarita Soni but he did not furnish any accounts to Ankita Soni and Sarita Soni. The appellant No.2 had sold three buses on the basis of two power of attorneys and never …3… bothered to account for the sale proceeds of the said buses. It also came to the notice of Sarita Soni that loans amounting to Rs.6,35,000/- were raised from the State Bank of India, Agricultural Developments Bank, Palampur against FDRs and some accounts were operated and amounts were withdrawn . In these circumstances, the suit was filed for dissolution of partnership and rendition of accounts. 4. The suit was contested by appellants by filing joint written statement. The preliminary objections of maintainability cause of action, locus standi, mis-joinder and non-joinder of parties, suit is bad for multifariousness, valuation and limitation were taken. On merits it was pleaded that bus No.HPK-3165 was disposed of by late Ashwani Kumar Soni himself on 8.8.1989, bus No.HPK-755, HPK-3365, HPK-7330 and HPK-5265 were subsequently disposed of on 1.10.1989, 16.11.1989 and 27.10.1989 and a new bus model 1989 bearing registration No.HPK-1165 was purchased and included in the M/s. Un- employed Graduate Bus Service. Sarita Soni after withdrawing marginal money of Rs.1.20 lacs from the account in the bank and by raising loan from the bank purchased two more buses bearing registration No.1195 and 1215 of 1990 model which were hypothecated to the bank. It was denied that power of attorneys were executed under any pressure or duress. The appellants prayed for dismissal of the suit. The replication was filed in which defence put forward by appellants was denied. …4… 5. On the pleadings of the parties, the following issues were framed:- 1. Whether Shri Ashwani Kumar Soni, deceased was the sole proprietor of M/s Un-employed graduate Bus Service Nagrota Bagwan, as alleged? OPP 2. Whether five buses as mentioned in para No.2, of the plaint, were owned by the concern M/s Un-employed Graduate Bus Service, Nagrota Bagwan ? OPP 3. Whether on the death of Shri Ashwani Kumar, plaintiffs and defendant No.1 succeeded to his estate as alleged? OPP 4. Whether on the death of Shri Ashwani Kumar, partnership came into operation by implication between the plaintiffs and defendant No.1, as alleged, if so in what shares? OPP 5. Whether power of attorneys on behalf of plaintiff No.1 in favour of defendant No.2, obtained under misrepresentation, as alleged and if so to what effect? OPP 6. Whether the suit in the present form is not maintainable? OPD 7. Whether the plaintiffs have no cause of action? OPD 8. Whether the plaintiffs have no locus standi to file the suit ? OPD 9. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD. 10. Whether the suit is bad for multifariousness? OPD 11. Whether the act and conduct of the plaintiffs is a bar to the present suit? OPD. …5… 12. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 13. Whether the suit is within time? OPP 14. Relief. The issues No.1 to 4 were answered in affirmative, issue No.5 was not pressed, issues No.6 to 13 were answered in negative and the suit was decreed on 21.6.1995 by learned Senior Sub Judge as per operative part of the judgement. The matter was carried in appeal and learned District Judge has dismissed the appeal on 12.8.1996, hence, the second appeal which has been admitted on the following substantial questions of law:- 1. Whether the finding given by the Court below is based on wrong appreciation of facts and law? 2. Whether the judgment of the Senior Sub Judge in Civil Suit No. 130 of 1990 was hit by the provisions of Section 69 of the Indian Partnership Act? 3. Whether the suit filed by the present respondents for dissolution of partnership and rendention of Accounts was maintainable, more particularly when there was no partnership deed in between the parties under the provisions of Indian Partnership Act? 4. Whether the finding given by the learned Senior Sub Judge on issues No. 4, 6 and 7 and affirmed by the learned District Judge, Dharamshala is erroneous? 5. Whether the issue No.5 could be allowed to be not pressed in the facts and circumstances of the suit, which issue (Issue No.5) was most …6… important issue to decide the real matter in controversy between the parties and non- pressing of the said issue (Issue No.5) would have resulted in dismissal of the suit of the plaintiffs/present respondents? 6. I have heard Mr. Ajay Sharma, learned counsel for the appellants and Mr. Dushyant Dadwal, learned counsel for respondent No.2 and have also gone through the record. Mr. Ajay Sharma, learned counsel for the appellants has submitted that the learned Courts below have erred in returning the findings on issue No.4 and recording a finding that by implication the parties were conducting the partnership business. He has submitted that late Ashwani Kumar Soni was running M/s. Un- employed Graduate Bus Service and it was not a partnership concern. He has submitted that there is no question of partnership by way of implication. The learned counsel for the respondent No.2 has submitted that late Ashwani Kumar Soni no doubt was running the business under the name and style M/s. Un-employed Graduate Bus Service but after his death Sarita Soni, Rajo Devi and Ankita Soni respondent No.2 succeeded to the estate of late Ashwani Kumar Soni. He has supported the impugned judgment, decree and has submitted that no fault can be found with the impugned judgment and decree passed by the learned District Judge affirming the judgment and decree of learned Senior Sub Judge. 7. The substantial questions of law No.1,3 and 4 are interconnected, therefore, the substantial questions of law No.1,3 …7… and 4 are taken up collectively for determination. It has been submitted on behalf of the appellants that there was no partnership deed among Sarita Soni, Rajo Devi and Ankita Soni respondent No.2. There cannot be any partnership by implication. The two Courts below have erred in dissolving non-existant partnership and declaring that Sarita Soni, Rajo Devi and Ankita Soni had 1/3rd shares. The partnership and firm are defined in Section 4 of the Partnership Act, 1932 (for short Act), mode of determining existence of partnership has been provided in Section 6 of the Act. According to Section 6 of the Act, in determining whether a group of persons is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. It is the case of the appellants that late Ashwani Kumar Soni was running the business under the name and style of M/s. Un-employed Graduate Bus Service. It emerges from the submissions made on behalf of the appellants that at the most late Ashwani Kumar Soni was the sole proprietor of business which he was running in the name and style of M/s. Un-employed Graduate Bus Service. It has not been denied by the appellants that Sarita Soni, Rajo Devi and Ankita Soni respondent No.2 succeeded to the estate of late Ashwani Kumar Soni and after the death of Ashwani Kumar Soni business continued. Sarita Soni, Rajo Devi and Ankita Soni respondent No.2 acquired 1/3rd shares in the business left by Ashwani Kumar Soni. …8… 8. PW-1 Sarita Soni has stated that on the basis of Power of Attorneys Rs.6,35,000/- loan was taken from State Bank of India against FDs. She has also stated that in M/s. Un- employed Graduate Bus Service money was invested by her husband Ashwani Kumar Soni. After the death of Ashwani Kumar Soni contribution in the business from three heirs of Ashwani Kumar Soni namely Sarita Soni wife, Rajo Devi mother and Ankita Soni daughter would be in the form of 1/3rd share each which they inherited from Ashwani Kumar Soni after his death. Sarita Soni had taken the stand that accounts were not settled. It is not the case of appellants that after the death of Ashwani Kumar Soni the business was not to be inherited by his widow, mother and daughter. In normal circumstances, it can be safely presumed that legal heirs of Ashwni Kumar Soni were entitled to profit and loss in the same ratio in which they succeeded the estate of Ashwani Kumar Soni. Thus, sharing of profit and loss and running of the business by Sarita Soni, Rajo Devi and Ankita Soni respondent No.2 emerges from the conduct of the parties. It has not been shown by appellants that written partnership deed among the partner is sine-qua-non for establishing the partnership under the Act. Sarita Soni and Ankita Soni had cause of action for filing the suit and the suit was very much maintainable. The two Courts below have rightly appreciated the material on record and the view taken by them emerges from the evidence on record, hence substantial questions of law No.1,3 and 4 are decided against the appellant. …9… 9. The appellants have also raised the grievance that suit is barred under Section 69 of the Act. In the written statement bar of Section 69 of the Act has not been specifically pleaded nor there is any issue to this effect. The bar of Section 69 is not applicable for enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm. In these circumstances suit is not barred under Section 69 of the Act. The substantial question of law No.2 is decided against the appellants. 10. The issue No.5 was not pressed which is clear from judgment dated 21.6.1995. The essence of issue No.5 is that appellant No.2 had obtained wrongfully Power of Attorneys from Sarita Soni, but once this issue was not pressed by Sarita Soni and Ankita Soni respondent No.2 that means they accepted the Power of Attorneys executed by Sarita Soni in favour of appellant No.2, but that does not means that appellant No.2 was not required to account for the Acts he had undertaken under the Power of Attorneys on behalf of the principal. In these circumstances, not pressing of issue No.5 by Sarita Soni and Ankita Soni respondent No.2 has no bearing on the merits of the case. The substantial question of law No.5 is decided against the appellants. 11. The two Courts have recorded a concurrent finding of fact that there was partnership in between Sarita Soni, Rajo Devi and Ankita Soni respondent No.2. The view taken by two Courts below emerges from the evidence on record. There is no …10… perversity in the impugned judgment, decree and it has not been established that two Courts below have ignored material evidence or inadmissible evidence has been relied in decreeing the suit. There is no merit in the appeal which is liable to be dismissed. 12. No other point was urged. 13. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. August 5, 2009. ( Kuldip Singh (sks) Judge.