Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

Mr. Farid Ahmed, J. And Mr. Enayetur Rahim, J. Judgment 24.08.2010

} } } } } }

Tushar Kanti Bhattacharjee and another …Appellants. Vs. Bijoy Lal Karmakar …Respondent.

Code of Civil Procedure (V of 1908)

Order XX, rule 15

Although in the Order XX, rule 15 of the Code the language has been used as “may pass a preliminary decree” but if the whole provision of the said law is considered it would be clear that passing a preliminary decree is mandatory before taking account. Relying on the biased and incomplete and it report the learned judge acted illegally in decreeing the suit and the judgment is beyond the scope of Order XX, rule 15 of the Code and same is without jurisdiction and a nullity in the eye of law.         ….(16-17)

Code of Civil Procedure (V of 1908)

Order XX, rule 15

Partnership Act (IX of 1932)

Section 69

The partnership business is admitted and in view of the provision of sub section 3(a) of section 69 of the Partnership Act the present suit for dissolution of partnership is maintainable as conceded by the learned Advocate for the defendant-appellant while the learned Advocate for the plaintiff respondent has also conceded that a proper accounting as per provision of Order XX, rule 15 of the Code is required to be prepared. Accordingly the suit is sent back on remand to the trail court to pass a preliminary decree on the basis of evidence on the record as per provision of Order XX, rule 15 of the Code determining the date on which the partnership shall stand dissolved and appointing an account knowing person and final decree be passed on the basis of such accounts to be submitted by such person.                                          …(22-23)

Md. Abdul Jabbar Sarkar–Vs- Md. Mabud Bux and another 7 PLR Dhaka, Page-23:Gulab Thai –Vs- Shibba Mal and another, AIR 1937 ALL 674 ref.

Mr. Abdul Wadud Bhuiyan, with

Mr. Shishir Kanti Majumder, Advocates

……For the Appellants.

Mr. A.J. Mohammad Ali with

Mr. Abdus Salam Mondal, Advocates

….For the Respondent.

Judgment

M. Enayetur Rahim, J:

Defendants have preferred this appeal being aggrieved by the judgment and decree dated 16.11.2005 passed by the learned Joint District Judge, 2^nd Court, Thakurgaon in Money Suit No. 01 of 2004 decreeing the suit.

1. 2.      The present respondent as plaintiff instituted Money Suit No.1 of 2003 in the 2^nd Court of Joint District Judge, Thakurgaon impleading the present appellants as defendants seeking the following reliefs:

AaHh, h¡c£ fË¡bÑe¡ L¢l­a­R ®k,

L)  “L’ afn£m h¢ZÑa “”®jp¡pÑ N£a¡m£ C­mLVÊ¢eLp” e¡j£u Awn£c¡l£ hÉhp¡ fË¢aW¡­e h¡c£l 1/2  ew (Aà¡Ñwn ) Awn l¢qu¡­R j­jÑ ®O¡oZ¡ f§hÑL Awn£c¡l£ hÉhp¡ fË¢aù¡e “”®jp¡pÑ N£a¡m£ C­mLVÊ¢eLp” Hl Awn£c¡l iw­Nl ¢Xœ²£ fËc¡e L¢l­a;

M)  “L’ afn£m h¢ZÑa “”®jp¡pÑ N£a¡m£ C­mLVÊ¢eLp” e¡j£u hÉhp¡ fË¢aù¡­e 1990-1991 Cw p¡m qC­a 1998-1999 p¡m fkÑ¿¹ Q¥s¡¿¹ ¢qp¡h ¢eL¡n A­¿¹ h¡c£l fË¡fÉ AàÑ¡wn V¡L¡ f¢l­n¡¢da V¡L¡ h¡­c 6,16,134/00 V¡L¡ Bc¡­ul SeÉ 1ew ¢hh¡c£l ¢hl¦­Ü ¢Xœ²£ ¢c­a;

N)  “L’ afn£m h¢ZÑa “”®jp¡pÑ N£a¡m£ C­mLVÊ¢eLp” e¡j£u hÉhp¡ fË¢aù¡­e 1999-2000 Cw p¡m qC­a 2003 Cw p¡­ml S¤e j¡p fkÑ¿¹ ¢qp¡h ¢eL¡n A­¿¹ h¡c£l fË¡fÉ Aà¡Ñwn V¡L¡ h¡hc 1ew ¢hh¡c£l ¢hl²­d ¢Xœ²£ ¢c­a ;

O)  afn£m h¢ZÑa ®jp¡pÑ N£a¡m£ C­mLVÊ¢eLp ®c¡L¡­el J ®N¡X¡E­el k¡ha£u AØq¡hl j¡m¡j¡m pj§­ql HL¢V a¡¢mL¡ (Ce­i¾V¡l£) fËØa¥a L¢lh¡l ¢e¢jš HLSe HX­i¡­LV L¢jne¡l ¢e­u¡Nœ²­j Eš² AØq¡hl j¡m¡j¡­ml ¢qp¡h ¢hhlZ£ J j§mÉj¡­el ¢hhlZ£ c¡¢Mm L¢lh¡l ¢e¢jš kb¡kb B­cn ¢c­a;

P)  Aœ Bc¡ma hÉ­u h¡c£l Ae¤L¥­m Hhw ¢hh¡c£l fË¢aL¥­m ¢Xœ²£ ¢c­a;

Q)   BCe J CL¥C¢V j­a k¡q¡ fË¢aL¡l f¡C­a qLc¡l a¡q¡J ¢Xœ²£ ¢ch¡l B­cn ¢c­a;

1. 3.          The plaintiff’s case, in short is that the plaintiff and the defendant No.1 having been friendly relationship for a long time at one stage they were agreed to run a partnership business. Accordingly, they had entered into a partnership agreement on 01.01.1398 B.S. In the agreement dated 01.01.1398 B.S. it was stipulated that the plaintiff would have given Taka 80,001/- as the capital of the business and the shop premises of the defendants would be treated as their capital; the defendant No.1 would manage, supervise their business and he would also be liable for other business related affairs like purchase and sell of the goods etc; the bank account would be operated by the defendant No.1 and after ending of the every Bengali year the loss and profit of the business would be accounted and the plaintiff and defendant No.1 would be liable for loss and profit in equal share; the parties were debarred to transfer their respective share to third party and if one of the party would not agree to remain as partner of the business, he would have given a 6(six) months notice on the other side but in no case within 5 years the parties could not be entitled to dissolve the business or demand his respective share or profit. Plaintiff gave Taka 80,001/- to the defendant No.1 as the capital of the business and the defendant No.1 after receiving the said money started business in the shop premises of the defendants, which was their paternal property. They started partnership business installing sign board under the name and style as M/S Gitali Electronics. The defendant No.1 being a teacher of a GovernmentPrimary School, he had been carrying on the business by appointing employees since 01.01.1398 B.S. in the shop premises. While they were carrying on business of various electronics goods like Watch, Clock, Radio, Tape recorder and Casset, within a short period their business had been developing day by day. The defendant No.1 used to take money from the plaintiff beside the capital money for the business and the defendant No.1 also repaid the same. The defendant No.1, from the profit of the business, used to pay the salary of the employees of the shop, electricity bill, municipality tax and other business related expenditures. The defendant No.1 at his own will used to prepare the accounts and maintain the stock register of the goods of the shop and when the plaintiff asked him to show the accounts and stock register, the defendant No.1 all the times avoided to show accounts and stock register on this or that plea and in this way the defendant No.1 had passed so many years. As per the terms of the agreement the plaintiff did not take any step against the said illegal activities of the defendant No.1 within 5 (five) years. The plaintiff on so many occasions requested the defendant No.1 for accounts but the defendant No.1 did not pay any heed to the plaintiffs such request. The defendant No.1 paid Taka 1,54,200/- as profit of the business to the plaintiff in different occasions in between the year 1990-1991 to 1998-1999 and through a cheque the defendant No.1 also gave Taka 80,000/- in the year 2001 and the defendant No.1 gave in total Taka 2,34,200/- to the plaintiff up to the year 2002 as business profit, which is much lesser than he was entitled. The plaintiff when finally asked the defendant No.1 to give him the accounts and demanded ‘V¡m£ M¡a¡’, the account for day to day business, stock register and other business documents, then the defendant No.1 on 28.09.2001 supplied him an account containing 22 Page without giving the full account, stock register and necessary documents regarding purchase and sell of goods. The said account was incomplete one and nothing was mentioned about total amount of purchase of goods and selling of goods. Eventually the plaintiff examined the said account, supplied by the defendant No.1, by a Chartered Accountant firm, at Dhaka and after auditing those it was found that after starting their business up to 1998-1999 financial year the gross profit was Taka 17,00,608/- and the plaintiff was entitled to get it’s 50% i. e. Taka 8,50,304/- and as the defendant No.1 paid Taka 2,34,200/-, the plaintiff is entitled to get the rest amount of profit of Taka 6,16,134/-. The defendant No.1 agreed to pay the said money. But ultimately he denied to pay the same and in such circumstances plaintiff sent a legal notice to the defendant No.1 demanding his profit as he was entitled. In reply to the said notice the defendant No.1 disclosed that in the shop in question, his younger brother defendant No.2 had been doing business. The defendants were trying to grab the partnership business and in that situation it became necessary to dissolve the partnership business. Since the defendant No.1 did not pay any heed to the legal notice of the plaintiff, the plaintiff was compelled to institute the present suit.
2. 4.          The defendants contested the suit by filing written statement denying the material statements made in the plaint. In the written statement it was contended that under compelling circumstances the defendants agreed to do a partnership business with the plaintiff; it was agreed between them that the defendant would have given their paternal shop premises for the business of electronic goods and the said shop premises would be treated as the capital of the defendants and the plaintiff accepted the said proposal; defendant No.1 receipt Taka 80,001/- from the plaintiff as his capital and they started business in the shop premises; one Satyajit Nag was the representative of the plaintiff; the defendant No.1 maintained the accounts, stock register and other business related documents and the plaintiff was impressed to see the such activities of him. Subsequently the defendants came to know that Satyajit Nag was the partner of the plaintiff and Taka 80,001.00 was given as capital money by both of them. The agreement was ended on 31.12.1402 B.S, that is in the year 1995-1996 and in between that period, gross profit of the business was Taka 2,39,399/- out of which the plaintiff and the defendant would get Taka 1,19,699/- each and the plaintiff already had received Taka 29,200/- in different occasions. Thereafter at the instance of the well wisher of both the parties they agreed to continue the partnership business on verbal agreement. Subsequently misunderstanding arose between the plaintiff and Satyajit Nag and Satyajit Nag left the plaintiff and plaintiff’s brother became the sells man of the shop. When the partnership business was going on, on the basis of verbal agreement the plaintiff in the middle of the year 2001 disclosed to the defendants that he would not continue the partnership business and he demanded his share of profit including the 50% goods of the shop. The defendants ultimately agreed to pay the dues to the plaintiff, as he was entitled to get and in presence of the representative of the plaintiff on 28.09.2001 an account was prepared from 19.07.1990 to September, 2001. As per the said account gross profit was Taka 9,08,036/- and total expenditure was Taka 4,42,985/- and deducting the other various expenditure the profit was Taka 4,15,331/- out of which the plaintiff was entitled to get Taka 2,07,665.50. Out of Taka 2,07,665.50 the plaintiff on different occasions received Taka 1,04,589/- and the rest due amount of profit was Taka 1,03,076/-. When the plaintiff demanded the said money, under a compelling circumstances the defendants executed a deed in favour of the plaintiff as ‘q¡Jm¡a e¡j¡l A‰£L¡l e¡j¡’ and thereafter on different occasion within 14 months they paid Taka 70,000/- to the plaintiff. After receiving the said amount suddenly the plaintiff stopped to take further amount and by a legal notice through his learned Advocate demanded more money, having no basis. The defendant also returned back the capital money amounting to Taka 80,000/- given by the plaintiff. The plaintiff all the times putting his signature had received money and he never raised any objection regarding the day to day accounts, yearly accounts prepared by the defendants. The plaintiff had managed to obtain an audit report from a Chartered Accountant, which has got no legal basis and had been claiming illegal money from the defendants. The said audit report in fact is not prepared by the Chartered Accountant on the basis of the ‘V¡m£ M¡a¡’, stock register and other document of the business and on the basis of the said report the suit can not be decreed as prayed by the plaintiff. The plaintiff making false claim for illegal gain instituted the suit and the same was liable to be dismissed with costs.
3. 5.          The learned Joint District Judge considering the pleadings of the respective parties framed as many as 5 (five) issues. The plaintiff to prove its claim examined 4 (four) witnesses and also adduced documentary evidence, which were marked as exhibits 1-9. On the other hand the defendants also examined 3 (three) witnesses in support of their case and also adduced documentary evidence which were marked as exhibits-Ka-Gha series.
4. 6.          The learned Joint District Judge after hearing of the suit by judgment and decree dated 16.11.2005 decreed the suit declaring the plaintiff’s 50% share in the partnership business under the name and style M/S Gitaly Electronics and also passed a decree dissolving the partnership. The learned Joint District Judge also decreed for a sum of Taka 10,96,017/- in favour of the plaintiff as the profit of the business from the year 1990-1991 to 2002-2003 including the capital money given by the plaintiff.
5. 7.          Against the said judgment and decree the defendants have preferred this appeal.
6. 8.          Mr. Abdul Wadud Bhuiyan and Mr. Shishir Kanti Majumder appeared for the defendant appellants. Mr. Abdul Wadud Bhuiyan in his submission referring section 69 sub-section 3(a) of the Partnership Act has conceded that the present suit for dissolution of partnership business is maintainable, though it is not a registered firm. He also submits that section 69 of the Partnership Act prohibits suit by a partner of an unregistered firm against another partner or against the firm itself but the exception is sub-section 3(a) of section 69 is to this general provision, providing for suit by a partner of a firm for dissolution of a firm or for accounts of dissolved firm, but the learned Joint District Judge acted illegally in decreeing the suit violating the Provision of Order XX, rule 15 of the Code of Civil Procedure. He further submits that as per provision of the said law the Court can pass a preliminary decree for dissolution of a partnership and thereafter direct for accounts but the learned Joint District Judge relying on the exhibit-2, the audit report, which was procured by the plaintiff privately, passed a decree for an amount of Taka 10,96,017.00 and thereby erred in law in decreeing the suit without holding any account as per law and the decree is a nullity in the eye of law and the same is liable to be set aside. To substantiate his contention he refers the case of Md. Abdul Jabbar Sarkar–Vs- Md. Mabud Bux and another, reported in 7 PLR Dhaka, Page-23. Mr. Shishir Kanti Jajumder, learned Advocate for the appellant drew our attention to exhibit-2, the audit report and exhibit-Kha, that is the accounts of the partnership business, maintained by the defendants and show us the discrepancies between the two documents particularly in determining the loss and profit of the business.
7. 9.          On the other hand Mr. A. J. Mohammad Ali, and Mr. Abdus Salam Mondal, learned Advocates appeared for the plaintiff respondent. Mr. Ali submits that in decreeing the suit dissolving the partnership firm the learned Joint District Judge did not commit any error of law. However, he concedes with the submission of Mr. Bhuiyan, the learned Advocate of the appellant, that the Court should have pass a preliminary decree for dissolution of partnership business as per Provision of order XX rule 15 of the Code of Civil Procedure and thereafter direct for accounts.
8. 10.      We appreciate the submission and attitude of the learned Advocates of both the parties.
9. 11.      In the instant case the partnership business on the basis of an unregistered document is admitted by both the parties. In view of the said admission, the plaintiff is entitled to get a preliminary decree for a declaration that he is a partner in the business in question and for dissolution of partnership business.
10. 12.      Order XX, rule 15 of the Code of Civil Procedure runs as follows:

“Where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.”

1. 13.      From a plain reading of the impugned judgment and decree it appears to us that the learned Joint District Judge passed the same beyond the scope of order XX, rule 15 of the Code of Civil Procedure. Said law clearly contemplates that before dissolution of a partnership or taking of partnership accounts, before passing a final decree Court may pass a preliminary decree declaring the proportionate shares of the parties, fixing the date of which the partnership shall stand dissolve or be deemed to have been dissolved and directing such account to be taken and other acts to be done the Court thinks fit. But in passing the impugned judgment and decree the learned Joint District Judge without passing any preliminary decree and taking account straight way relying on a procured audit report by the plaintiff, exhibit-2, has determined the profit of the business and the share of the respective parties and decreed for an amount of Taka 10,96,017/- in favour of the plaintiff.
2. 14.      From exhibit-2, the audit report, it appears that P.W.2, Tofayel Ahmed, the Chartered Accountant made remark to the effect:

“hÉhp¡­ul ®~ce¢¾ce œ²u-¢hœ²­ul pjbÑ­e hÉhq²a V¡m£ M¡a¡ pj§q (hvpl Ae¤k¡u£) jS¤a j¡­ml ¢hhle£l pjbÑe ®k¡NÉ LÉ¡n ®j­j¡, Q¡m¡e, c¢mm cÙ¹¡­hS CaÉ¡¢c ¢ed¡Ñl­el SeÉ EfØq¡fe Ll¡ q­m pw­n¡¢da m¡i/ ®m¡Lp¡­el ¢hfl£­a ¢ed¡Ñ¢la fË¢a­hce Hl Supplement Ll¡ ®k­a f¡­lz”

1. 15.      P.W.2, Tofayel Ahmed in his cross-examination admitted to the effect:

“1995-96 Cw p­e j¡m œ²u h¡hc ®cM¡­e¡ q­u­R 7,75,216/00 V¡L¡z Bl Bj¡l fË¢a­hc­e E­õM l­u­R 5,95,416/00 Hhw 1996-97 Cw p­e M¡a¡u E­õM B­R j¡m œ²u h¡hc 7, 33,262/00 V¡L¡z Bl Bj¡l fË¢a­hc­e E­õM l­u­R 5,91,630/00 V¡L¡ Hhw 1997-98 Cw p­e M¡a¡u j¡m œ²u h¡hc E­õM B­R 8,02,594/00 V¡L¡ Bl Bj¡l fË¢a­hc­e E­õM l­u­R 6,20,440/00 V¡L¡ Hhw 1998-99 Cw p­e M¡a¡u j¡m œ²u h¡hc E­õM B­R 7, 23,541/00 V¡L¡ Hhw Bl Bj¡l fË¢a­hc­e E­õM l­u­R 5,07,594/00 V¡L¡z ——z ®L¡e g¡­jÑl “”1” hvp­ll ¢qp¡h ¢eL¡­nl ¢i¢š­a ®k Gross Profit Bp­h “”9” hvp­ll ¢qp¡h ¢eL¡­nl Gross Profit HLC lLj q­h e¡z —–z fr La«ÑL c¡¢Mm£ M¡a¡u 1990-91 Cw p­el ¢qp¡­h ®L¡e f¢lhqe MlQ ¢mM¡ e¡Cz I M¡a¡u 1991-92 Cw p­el Hhw 1992-93 Cw p­el Hhw 1993-94 Cw p­el Hhw 1993-94 Cw p­el Hhw 1994-95 Cw p­el Hhw 1995-96 Cw p­el Hhw 1996-97 Cw p­el Hhw 1997-98 Cw p­el Hhw f¢lhqe Ml­Ql ¢qp¡h ¢mM¡ B­Rz B¢j a¡ Bj¡l A¢XV ¢l­f¡VÑ ¢X¢mV L­l ®cM¡­u¢Rz I V¡L¡V¡ B¢j MlQ ¢qp¡­h ®cM¡­u¢Rz B¢j 9 hvp­ll ¢qp¡h HL­œ L¢l e¡C B¢j hvpl hvpl ¢qp¡h L­l¢Rz——z k¢c Bj¡l ¢qp¡­hl 9 hvp­ll j¡m ¢hœ²­ul V¡L¡ HL­œ ®k¡N Ll¡ qu a¡ q­m a¡ 70,16,643/00 V¡L¡ q­h ¢L e¡ a¡ B¢j pju ¢e­u ®k¡N e¡ L­l HMe hm­a f¡lh e¡z k¢c 1998-99 Cw p­el jS¤c j¡­ml 2,98,752/00 V¡L¡ Eš² 70,16,643/00 V¡L¡l p¢qa ®k¡N Ll¡ qu a¡ q­m a¡ 72,35,595/00 V¡L¡ q­h ¢Le¡ a¡ HMe B¢j ®k¡N e¡ L­l hm­a f¡lh e¡z ”

1. 16.      In view of the above evidence and materials on record it is crystal clear that exhibit-2, the audit report is not a conclusive account of the business in question and same is also a biased, incomplete report and suffers from inconsistency and as such the learned Joint District Judge acted illegally in decreeing the suit for an amount of Taka 10,96,017.00 relying on the said procured audit report and same can not be sustained.
2. 17.      Although in order XX rule 15 of the Code of Civil Procedure the language has been used as ‘may pass a preliminary decree’ but if we read the entire provision of above law as a whole and consider the scheme of the said law, it would be clear that passing a preliminary decree is mandatory before taking account. We have no hesitation to hold that the impugned judgment and decree is passed beyond the scope of order 20, Rule 15 of the Code of Civil Procedure and same is without jurisdiction and a nullity in the eye of law.
3. 18.      In the case of Gulab Thai –Vs- Shibba Mal and another, reported in AIR 1937, ALL 674 it has been observed:

“whether the firm is dissolved by a decree of court or otherwise, the dissolution can never be complete unless the accounts of the firm are settled.”

1. 19.      In that case it has been further held that the right for accounts in a suit for dissolution of a firm is not an account of any provision of section 69 of the Partnership Act nor because the dissolution is not complete unless the accounts are settled, but because of the provision in order XX rule 15 of the Code of Civil Procedure, Court may grant it.
2. 20.      Once a suit for dissolution of a partnership is filed it will attract the operation of order XX, rule 15 of the Code of Civil Procedure under which the Court is quite competent to grant necessary relief as contemplated in that rule. Prayer for determination of shares and for accounts are not implicit in the prayer for dissolution, but under order XX, rule 15 of the Code of Civil Procedure, the Court may grant it.
3. 21.      In view of the above discussion we are also of the view that the learned Joint District Judge failed to understand the purport and scope of order XX rule 15 of the Code of Civil Procedure and proceeded with the case in a wrong way.
4. 22.      In the instant case partnership business is admitted and in view of the provision of section 69 and sub-section 3(a) of the Partnership Act the present suit for dissolution of partnership is maintainable as conceded by the learned Advocate of the defendant-appellants relying on the decision reported in 7 PLR Dacca, Page-23. On the other hand learned Advocate of the plaintiff respondent has also conceded that a proper accounting as per provision of order XX rule 15 of the Code of Civil Procedure is required to be prepared. In view of the above position of the respective parties, it is not at all necessary to discuss the evidence of the respective parties afresh to determine whether there was any partnership business between the parties and to determine the accounts.
5. 23.      Having discussed as above we are inclined to interfere with the impugned judgment and decree. We send the case back on remand to the trial Court to pass a preliminary decree on the basis of the evidence available on the record in the light of the provision of order XX, rule 15 of the Code of Civil Procedure determining the date on which the partnership shall stand dissolve or deem to be dissolved and thereafter by appointing an accountant knowing person, preferably an agreed person by the parties, direct to prepare accounts and on the basis of such accounts final decree be passed. It is to be mentioned here that in the instant case profit of the parties are admittedly equal that is 50%, 50%.

        In the result, the appeal is allowed without any order as to costs. The judgment and decree dated 16.11.2005 passed by the learned Joint District Judge, 2^nd Court, Thakurgaon in Money Suit No.1 of 2004 is hereby set aside. The suit is sent back on remand to the trial Court with the observation made in the body of this judgment.

        Send down the lower Court records at once.

Ed.