RSA No.1875 of 2010 - 1 - ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1875 of 2010 (O&M) Date of decision:18.08.2010. Markande Textiles and another ...Appellants Versus Sanjay Saini and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Arun Singal, Advocate, for the appellants. ***** RAKESH KUMAR JAIN, J. Defendant Nos.1 and 2 are in second appeal against judgment and decree of the Courts below by which suit of the plaintiff has been decreed by the learned Trial Court wherein a decree has been passed for dissolution of partnership and the defendants were directed to render up to date accounts of the partnership firm to the plaintiff. However, the judgment and decree of the Trial Court has been modified by the First Appellate Court, while accepting the appeal of the plaintiff, to the extent that the partnership of the plaintiff is dissolved from the date of filing of the suit and the plaintiff would be entitled to rendition of accounts up to the date of filing of the suit. The First Appellate Court, while RSA No.1875 of 2010 - 2 - ******* allowing the appeal of the plaintiff in part, had observed as under: - “11. The relief sought by the plaintiff is for passing a decree of dissolution of partnership firm with further prayer that the defendants be directed to render the accounts to the plaintiff up to date which envisaged that the plaintiff had sought dissolution of the partnership firm from the date of filing of the suit. Moreover in para no.6 of the plaint, the plaintiff has specially pleaded that on 12.09.05 the plaintiff finally requested the defendants for dissolution of partnership and for rendering the accounts, but the defendants flatly refused to render the same, therefore, the arguments of the learned counsel for the defendants-respondents that the plaintiff has not sought the dissolution of partnership firm from the date of filing of the suit is devoid of merits. Moreover, the right of the parties crystallizes on the date of filing of the suit, therefore, the relief sought by the plaintiff can not be stretched to 31.5.06, the date when the contract was to be expired. If that be the situation, then there was no occasion by the plaintiff to file the present suit for dissolution of partnership firm and rendition of accounts, because this relief was always available to the plaintiff even if no suit could have been filed by the plaintiff. 12. Now coming to the question as to whether the partnership firm continued working even after the date of filing of the suit is concerned, in this connection defendants RSA No.1875 of 2010 - 3 - ******* have not filed any document on file to prove that the partnership firm even worked after filing of the suit, rather from the evidence led by the parties, it is clearly established that the partnership firm only worked for a period of 6- 7 months from the date of its commencement. The statement of accounts produced on the file by the defendants Ex.D1 also goes to show that the transactions have been shown to have carried out up to 27.06.05 as certain amount has been shown to have withdrawn by the plaintiff in cash up to 27.06.05 and thereafter the losses have been calculated without even mentioning any transaction with the plaintiff. In Ex.D2 loss has been further calculated by adding interest in the same. Though the amount withdrawn in cash has not been admitted by the plaintiff nor there is any such documents produced on file to that effect nor any ledger has been produced on file. Even from this statement, it is well proved that the plaintiff remained in partnership firm up to 27.06.05 which gives strength to the arguments raised by the learned counsel for the plaintiff that plaintiff only worked for a period of 6-7 months in the firm and thereafter he had withdrawn his partnership from the partnership firm. DW1 Naresh Kumar has admitted in his cross- examination that Sanjay Saini had worked for a period of about seven months whereas partnership was up to 31.05.06. 13. Moreover, PW1 when stepped into the RSA No.1875 of 2010 - 4 - ******* witness box stated in his affidavit that the defendants have not rendered any accounts till that time inspite of repeated demands and it seems that the defendants have become dishonest and did not want to render the accounts to the plaintiff. The plaintiff who does not want to continue himself as partner, he also state that on 12.09.05 he finally requested the defendants for dissolution of the partnership and rendering accounts, but the defendatns refused to render the same. This shows that the plaintiff had withdrawn his partnership from the partnership firm after 6-7 months from the date of commencement of the business which fact further substantiated from the Ex.PD reply given by plaintiff through his counsel to counsel for the defendants mentioning therein that at one stage Naresh Kumar deposed before court that partnership with his client (Sanjay Saini) was terminated after six months from the date of execution of partnership deed i.e. 1.12.04. Likewise, in reply to the notice dated 3.9.05 served under Section 138 Negotiable Instruments Act mentioned in para no.1 of the said reply that accounts of Sanjay Saini were settled from M/s Markande Textiles and he was retired from the firm. In Ex.PD copy of complaint made by Naresh Kumar Defendant no.2 made to SHO, Police Station Gohana against Sanjay Saini and others, it is mentioned in para no.2 that accused no.3 Sanjay Saini was with him who had his bag RSA No.1875 of 2010 - 5 - ******* and other papers and said Sanjay was sitting on the pillion seat of his two wheeler to which he was driving. Accused no.3 knowingly, in order to cause wrongful loss to him and causing wrongful gain to him had stolen his said personal bag along with cheque book and thereafter colluded with the other accused that he entered into a partnership with Sanjay Saini for a period of 18 months which was come to an end after about seven months. 14. In this way from these above said documents also it is clearly established that Sanjay plaintiff remained partner in the firm only for about 6-7 months, therefore, the plaintiff had every right to get his partnership dissolved so that he may not suffer any loss due to dishonest intention on the part of the defendants which is also proved from the statements of accounts Ex.D1 and Ex.D2 produced on the file wherein huge amount has been shown to have been withdrawn by the plaintiff in cash whereas when there is partnership between the parties no amount can be believed to be paid in cash without obtaining any receipt to that effect. The defendants have not produced any receipt to substantiate the fact that the amount was withdrawn by the plaintiff in cash, but this is not the matter to be decided by this Court as only preliminary decree is to be passed by this Court if a case is made out by the plaintiff for dissolution of partnership and rendition of RSA No.1875 of 2010 - 6 - ******* accounts. The learned lower court has rightly given findings on issue no.1 in favour of the plaintiff and has also given findings on issues no.2 and 3 against the defendants, but the learned lower court has committed error in granting the relief to the plaintiff as the partnership firm was to be dissolved from the date of filing of suit. Therefore, the arguments of learned counsel for the defendants that the learned lower court has not committed any error of law while granting relief to the plaintiff does not find any favour with the court as the partnership was to be dissolved from the date of filing of the suit as the right of the parties crystallize on the date of filing of the suit.” Learned counsel for the appellants, while assailing judgment and decree of the Courts below, has argued that the partnership firm constituted for a fixed period could not be dissolved before expiry of the said period. Although the argument has been raised, but learned counsel for the appellants could not substantiate his argument with the support of any provision of law or any precedent. Thus, I do not find any substantial question of law involved in the present appeal and as such, the same is hereby dismissed, however, without any order as to costs. August 18, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE