:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.78 OF 1992 1. Jasraj Chogmal Bohare, Age 75 years, a trader, residing at Raichur, Jasraj Prithviraj Cloth Shop, Raichur (deceased) through his L.Rs. 1. Rambhai w/o Jasraj Bohare, 72, Occ. Household work, r/o.Raichur. 2. Sou. Sushilabai w/o Ganeshmal Runwal, Age 55, r/o Gandhi Chowk, Raichur. 3. Shantilal s/o Osary Bhose, Age 53, Occ. Trader, r/o. Cloth Bazar, Raichur. (Since deceased by his heirs) a. Padmabai Shantilal, Age 39, b. Sunilkumar Shantilal, c. Sajjubai Shantilal, d. Shushamabai Shantilal, e. Santhoshbai Shantilal, Residing at C/o. Vardhaman Cotton Pressing Factory, Industrial Avenue, Post Raichur. f. Surekhabai Parasmal, Residing at Ashok Mills, Station Road, Mrahamacha Lasalgaon, Dist. Nashik. g. Sunandabai Sunilkumarji, Residing at Parijat Banglow, S.T.Stand, Pushpanagar, Aurangabad. 4. Mithulal s/o Jasraj Bohare, Age 51, r/o as above. 5. Sou. Mankarbai w/o Dharmanpchand Bhandari, age 47, Household work, r/o 17, Peddu Naik Street, Kondithip, Madras. 6. Ishwarlal s/o. Jasraj Bohare, Age 45, r/o Cloth Bazar, Raichur. 7. Sou. Shobhanwarbai w/o Shivanand Lalwani, Age 35, Household work. R/o. 444.Sardar Vallabhai Patel Road, Manmad, Dist. Nasik. 8. Pruthviraj s/o Jasraj Bohare, Age 38, Trader, R/o. Raichur. :2: 9. Sou. Premlatabai w/o. Abhaykumar Mootha, Age 41, Household work, R/o. Main Bazar, Koppal, Dist. Raichur. 10. Dhapibai w/o. Rajendrakumar Bantia, Age 36, Household work, R/o. C/o. Kantilalji Bantia, M.G.Road, At & Post Panvel, Dist. Raigad. 11. Kumari Chambai d/o Jasraj Bohare, Age 19, Household work, residing at Cloth Bazar, Raichur. 2. Shantilal Jasraj Bohare, Age 38, Trader, Residing at Raichur. 3. Mithulal Jasraj Bohare, Age 50, Occuation & R/o. as above. (Died on 28.9.1978 by his L.Rs.) A. Smt. Prakashbai w/o. Mithulal Bohare, Age 49, Occ. Household work, B. Miss. Jatanbai d/o. Mithulal Bohra, Age 32 years, Household work, C. Dilipkumar s/o. Mithulal Bohra, Age 30, D. Jayashri d/o Mithulal Bohra, Age 28, E. Nandabai d/o. Mithulal Bohra, Age 26, F. Sangita d/o. Mithulal Bohra, Age 24, G. Sarita d/o Mithulal Bohra, Age 23, H. Pravin s/o Mithulal Bohra, Age 21, I. Amita d/o Mithulal Bohra, Age 19, All r/o. Raichur (Karnataka State). ..Appellants. (Org. Defendants.) Vs. :3: Shri. Chunilal Vardishankar Trivedi, Age 68, r/o. Dadished Agyari Line, Naviwadi, H.No.5, Room No.8, Bombay-3. ..Respondent. (Org. Plff.) Mr. V.B. Rajure for the Appellants. Mr.Sachin S. Punde i/by Mr.Rajiv Patil for the Respondent. CORAM: R.S. MOHITE, J. DATE : 18th October,2008 ORAL JUDGMENT : 1. The appellants/original defendants have filed this appeal seeking the relief of setting aside the decree passed by the Civil Judge, J.D. Barshi dated 30.11.1976 in R.C.S.No.164 of 1967 and confirmed by the III Addl. District Judge, Solapur on 26.3.1991 in Civil Appeal No.19 of 1977. 2. The brief facts of the case are as under. a) The plaintiff had filed a suit for dissolution of partnership and for accounts. The partnership was first established on 16.6.1959 in the name M/s. Dalichand Jasraj. On 28.10.1962, except the plaintiff and the defendants, other original partners had left the partnership firm. The defendant No.1 used to get the accounts written through a Munim. The :4: plaintiff disputed that the accounts were not properly kept. In the circumstances, by telegram dated 2.11.1966 which was received by the defendants on 12.11.1966, the plaintiff purported to dissolve the partnership firm, which was a firm at Will, and called for the accounts. Since the accounts were not furnished to the satisfaction of the plaintiff, the aforesaid civil suit came to be filed. b) On 30.6.1969 the Trial Court passed a preliminary decree appointing an Advocate as Commissioner to examine the accounts. The plaintiff and the defendants were directed to make available all the accounts and the suit was thereafter adjourned for final decree. The final decree was passed by the Civil Judge,J.D. Barshi on 30.11.1976 and the defendants were directed to pay to the plaintiff an amount of Rs.1,04,658.00 with interest thereon at the rate of 12% p.a. from 12.11.1966 to 30.11.1976 amounting to Rs.1,26,217.62ps. The plaintiff was also directed to pay requisite court fee on the total amount of Rs.2,30,875.62ps., which was quantified at Rs.4700/-, within a period of one month from the date of the decree. Consequently, an order was made as regards the fees to be paid to the Commissioner. 3) The matter was carried in appeal by the original defendants but by a Judgment and order dated 26.3.1991 passed in Civil Appeal No.19 of 1977, the III Additional District Judge, Solapur was pleased to dismiss the appeal. :5: 4) This second appeal was therefore,preferred by the defendants and it was admitted on substantial questions of law as formulated in Ground Nos. 6 to 9. The aforesaid substantial questions of law were as under: 6. Another substantial question of law involved is that whether the deceased defendant no.1 and other partners of the firm would be made liable to pay any amount, which is calculated as profit, to the plaintiff-respondent herein, without liquidating the assets of the firm and without taking into consideration bad debts or doubtful debts. 7. Another substantial question of law involved is that whether prior to the receipt of any amount to the firm, which was due, that amount could be treated as deemed to be received by the defendants and further, whether that amount would be apportioned between the partners of the firm. 8. Another substantial question of law involved is that whether a Commissioner appointed for taking accounts of the firm can settle the accounts and arrive at a conclusion that or decide that he is entitled for a particular amount. 9. It ought to have considered that amount due from Jayshankar Mills and from Balsing Bhadule has not been :6: actually received by the firm and the Mill is not ready to pay interest on the amount, the said amount has to be treated as bad debt and cannot be taken as profit. 5) As regards the aforesaid grounds, it is seen that the Commissioner had recorded the evidence of the parties and arrived at the amounts due and payable to the partners on the basis of the oral and documentary evidence. It is contended that the amount used by Jayshankar Mills and Balsingh Bhadule were bad debts as the same was not recovered and cannot be taken as profit. This aspect has been dealt with in Paragraph 20 and 21 of the Appellate Court Judgment which is the last judgment on facts. It has been held by the court that the amount of Rs.2,58,807/- due from Jayshankar Mills was in fact, recovered. This is deduced by the Appellate Court from the fact that only interest was shown in the suspense account and the firm had released the hypothecated goods. Similarly amount of Rs.30,000/- due from Balsing Bhadule have also found to have been recovered. This finding was arrived at by the Commissioner as the evidence discloses that Balsing Bhadule was a close associate of Shri. Zadbuke who was the Managing Director of Jayshankar Mills. Whether the aforesaid amounts were recovered or not is a question of fact and cannot be said to be a substantial question of law. 6) It was sought to be contended that there was no averment to the effect that the suit partnership was registered. However, I find that such averment exists in the plaint. :7: 7) Taking an over all view of the matter, in my view, there is no substantial question of law involved in the appeal and the same stands dismissed. (R.S. MOHITE, J.)