Norang Rai Goel v. Satish Kumar & Ors.

appellant-plaintiff (hereinafter to be referred as “the plaintiff”) is to the judgment and decree dated 28.2.2000, whereby, the trial Court has dismissed his suit for dissolution of the partnership firm styled as M/s Nav Bharat Udyog, Bhiwani and for rendition of accounts and the judgment and decree dated 31.7.2007, vide which, the first Appellate Court has dismissed his appeal as well.

2. As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, the compendium of the facts, relevant for the purpose of disposal of the present appeal and emanating from the record, is that the plaintiff filed the present suit for dissolution of indicated firm and for rendition of accounts against Gopi Chand Goyal defendant No.1 (since deceased), being represented through his legal representatives (hereinafter to be referred as “defendant No.1”) and other defendants, inter-alia, Regular Second Appeal No.3445 of 2008 2 pleading that the parties entered into a partnership agreement for running the business, in accordance with the terms and conditions as laid down in the partnership deed dated 22.12.1972 (Ex.DW7/1). The plaintiff claimed that in pursuance of clause XV, various terms and conditions of partnership were added and modified with the consent of all the partners, vide agreement dated 30.12.1973 (Ex.PW3/A). It was alleged that although the partnership firm is still subsisting but defendant No.1 has dishonestly started alleging that the firm stood dissolved on 28.2.1978, vide dissolution deed (Ex.DW7/7). According to the plaintiff, the dissolution deed (Ex.DW7/7) is illegal, null and void, as no accounts/balance sheet were prepared and signed by all the partners and copies thereof were also not delivered to them.

3. Levelling a variety of allegations, in all, according to the plaintiff, the above mentioned firm is still subsisting, but now he did not want to continue with the firm as its partner any more and want to dissolve the same. On the basis of the aforesaid allegations, the plaintiff filed the suit for dissolution of the firm and for rendition of accounts, in the manner indicated here-in-above.

4. The defendant No.1 contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit, locus standi, cause of action of the plaintiff, non- joinder and mis-joinder of necessary parties etc. On merits, the case set up by the contesting defendant was that though the parties were earlier partners of the above said partnership firm, which had actually been dissolved after much deliberations between the parties and after preparing the accounts and carrying out other necessary formalities, vide dissolution deed (Ex.DW7/7), Regular Second Appeal No.3445 of 2008 3 which was concluded in the presence of all the partners. Succinctly, according to the contesting defendant, since the firm in question has already been dissolved, vide dissolution deed (Ex.DW7/7), so, the question of its re- dissolution and rendition of accounts, did not arise at all. It will not be out of place to mention here that the contesting defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication.

6. In the wake of pleadings of the parties, the following issues were framed by the trial Court for proper adjudication of the case:-

1. Whether the partnership still subsists between the plaintiff and defendants, as alleged?OPP

2. Whether the plaintiff is entitled to rendition of accounts from the defendants?OPP

3. Whether the deed of dissolution dated 28.2.1978 is bogus document, as alleged?OPP

4. Whether the suit is not maintainable in the present form?OPD

5. Whether the plaintiff is estopped from filing the present suit by his act and conduct?OPD

6. Whether the suit is barred by limitation?OPD

7. Whether the suit is bad for non-joinder of necessary parties and mis-joinder of parties?OPD

8. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?OPD

9. Relief.

7. The parties produced oral as well as documentary evidence on record, in order to substantiate their respective pleas.

8. The trial Court, after taking into consideration the evidence on record, dismissed the suit of the plaintiff, vide impugned judgment and Regular Second Appeal No.3445 of 2008 4 decree dated 28.2.2000. The appeal filed by him was also dismissed by the first Appellate Court, vide impugned judgment and decree dated 31.7.2007.

9. The appellant (plaintiff) still did not feel satisfied with the impugned judgments and the decrees and filed the present appeal. That is how, I am seized of the matter.

10. Having heard the learned counsel for the appellant (plaintiff), having gone through the evidence on record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

11. However, the main celebrated argument raised on behalf of the plaintiff that since the accounts were not settled and the balance sheet was not prepared for the relevant period, so, the earlier dissolution deed (Ex.DW7/7) is illegal and not binding on the plaintiff, is not only devoid of merit but misplaced as well. It is not a matter of dispute that the dissolution deed (Ex.DW7/7) was executed and it was signed by all the partners, which stands duly proved by cogent evidence. It is depicted in the dissolution deed that the accounts and balance sheet as on the closing date were prepared. In other words, all the pre-requisites of dissolution of partnership have been duly complied with. The mere fact that some of the communication/letters relate to the period subsequent to the date of execution of dissolution deed (Ex.DW7/7), would not come to the rescue of the plaintiff in any manner, because it was agreed between the parties, vide agreement (Ex.PW3/A) that the dissolution would not be deemed to be effective, unless balance sheet and documents were prepared by all the partners. Therefore, process of preparing the final statement of accounts and other liabilities, which was to be shared by the outgoing partners, would not debar defendant No.1 Regular Second Appeal No.3445 of 2008 5 requiring them to fulfill or perform the indicated liabilities and to adjust the accounts accordingly. Therefore, the contrary arguments of learned counsel “stricto sensu” deserve to be and are hereby repelled, under the present set of circumstances.

12. Moreover, the trial Court has duly considered and dealt with all these documents in paras 15 to 19 of the impugned judgment and has held that the suit of the plaintiff was barred by limitation.

13. Not only that, the trial Court has dismissed the suit of the plaintiff as barred by limitation, the decree was upheld by the Ist Appellate Court as well, in the following manner:- “The dissolution deed of 28.2.1978, which is proved, has been signed by all the partners and hence all the partners including plaintiff were in the knowledge of dissolution of the partnership firm. The plaintiff instituted the suit on

29.11.2005 i.e. after lapse of a period of more than 3 years and hence it was beyond the period of prescribed period of limitation. The contention of learned counsel for the appellant that suit could only be filed when defendant no1 filed objections in execution proceedings of P.D. Himmatsingka Versus M/s Nav Bharat Udyog and from the date the suit is still within the period of limitation are not convincing. Since the plaintiff has been held to be the signatory of the dissolution deed and hence period of limitation has to be complete from 28.2.1978. Hence, suit of the plaintiff is also barred by limitation.”

14. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, have already been duly considered and dealt with by the Courts below, in this relevant connection .

15. Moreover, the trial Court and the first Appellate Court have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned Regular Second Appeal No.3445 of 2008 6 the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the partnership firm in question stood dissolved on

28.2.1978 i.e. date of execution of the dissolution deed dated 28.2.1978 (Ex.DW7/7). In that eventuality, question of rendition of accounts did not arise at all and the suit filed by the plaintiff was time barred. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard.

16. Meaning thereby, the entire gamut/matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, arises for determination in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the Courts below, as contemplated under section 100 CPC in the obtaining circumstances of the instant case,.

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant.

18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar)

30.6.2010 Judge Regular Second Appeal No.3445 of 2008 7 AS