Punjab-Haryana High Court
Ram Saran Dass And Others vs Ram Piari And Others on 19 May, 2011
Author: Sabina
Bench: Sabina
RSA No.3238 of 2010 1
In the High Court of Punjab and Haryana at Chandigarh
RSA No. 3238 of 2010 (O&M)
Date of decision: 19.05.2011
Ram Saran Dass and others .....Appellants
Versus
Ram Piari and others .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Puneet Jindal, Advocate,
for the appellants
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SABINA, J.
Plaintiff-Ram Piari had filed a suit for declaration, permanent injunction and mandatory injunction.
The case of the plaintiff, in brief, was that she was a partner of the firm styled `M/s Kishori Lal Ram Saran Dass, Jalandhar'. The partnership deed was executed on 12.12.1996. Plaintiff had shares to the extent of 12% in the partnership deed. A dispute arose between the partners of the firm and the partners wanted to withdraw capital of the firm to deprive the plaintiff to her share. An application was submitted by the plaintiff before the Chief Engineer, State Bank of Patiala, Shastri market Jalandhar on 6.11.1998 with a prayer that RSA No.3238 of 2010 2 the partners be not allowed to withdraw any amount from the account of the partners. A telegram dated 7.11.1998 was received by plaintiff-Ram Piari that in view of the complaint dated 6.11.1998 moved by the plaintiff, and in terms of her affidavit dated 16.9.1996, she was no longer partner of the firm `M/s Kishori Lal Ram Saran Dass', Jalandhar.
Defendants, in their written statement, averred that the plaintiff was earlier partner of the firm `M/s Kishori Lal Ram Saran Dass', Jalandhar and was acting against the interest and benefit of the firm. Plaintiff was also partner of the firm M/s Munico industries, Rice Mills, Ladowali Road, Jalandhar. Plaintiff had a dispute with her sons and was acting against the interest of the firm from time to time. Plaintiff settled the dispute with her sons and undertook that she would not work against the interest of the firm. The plaintiff also assured that she will not file any civil suit or complaint and will sign all the papers as and when required for conducting day to day business of the firm. It was further agreed by the plaintiff that in case she filed a complaint against the firm or its partner, then the said act shall be deemed to be a misconduct. The plaintiff had written a letter to Manager, State Bank of Patiala without any reasonable cause requesting the Manager to stop further operation of the accounts of the firm. The Manager of the firm accordingly stopped the operation of the accounts of the firm. This was done at the time when business of the firm was at a peak season. The reputation and goodwill of the firm had been damaged. As per affidavit dated 16.91996 sworn by the plaintiff, a notice was sent to the plaintiff through telegram on 7.11.1998 to the effect that she was no longer the partner of the firm. RSA No.3238 of 2010 3 It was denied that the partners want to withdraw the capital of the firm.
On the pleadings of the parties, the following issues were framed:-
"1.Whether the plaintiff is entitled to the declaration that plaintiff continue to be a partner in the firm M/s Kishori Lal Ram Saran Dass and that the alleged ousting by the defendant is illegal, void and does not effect the rights of the plaintiff in the said firm?OPP 1-A. Whether the plaintiff is also entitled to declaration to the effect that the partnership deed dated 9.11.1998 entered into by the defendants by ousting the plaintiff from the said firm is illegal, void and the same does not affect the rights of the plaintiff in the said firm?OPP
2. Whether the plaintiff is entitled to relief of permanent injunction for restraining the defendants from carrying on the affairs of the firm M/s Kishori Lal Ram Saran Dass, under the illegal and void partnership deed dated 9.11.1998 or any other subsequent partnership deed in which the plaintiff is not a partner ? OPP
3.Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for?OPP
4.Whether the suit is not maintainable in the present form?OPD
5.Whether the suit is bad for misjoinder of causes of action?OPD
6.Whether the plaintiff is estopped by her own acts and RSA No.3238 of 2010 4 conducts to file the present suit?OPD
7.Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD
8.Whether the plaintiff has not come to the court with clean hands?OPD
9. Relief."
The Civil Judge (Junior Division) vide judgment and decree dated 30.3.2007 decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 8.12.2009. Hence, the present appeal by the defendants No. 1, 3, 4 and 6 and the legal representatives of defendant No.2.
After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal.
In the present case, admittedly, plaintiff was the partner of the partnership firm M/s Kishori Lal Ram Saran Dass. The plaintiff challenged the partnership deed dated 9.11.1998 which was entered into by the defendants after ousting her from the firm. The case of the defendants was that since the plaintiff had misconducted, she was liable to be removed as a partner of the firm. Plaintiff had made a complaint to the Manager, State Bank of Patiala against the affidavit dated 16.9.1996 sworn by the plaintifff.
Section 33 of the Partnership Act ,1932 reads as under:-
"Expulsion of a partner.-(1) A partner may not be expelled from a firm by any majority of the partners, save in the exercise in good faith of powers conferred by contract RSA No.3238 of 2010 5 between the partners.
(2) The provisions of sub-sections (2), (3) and (4) of Section 32 shall apply to an expelled partner as if he were a retired partner."
Thus, as per the above provision, the partners of the firm can be removed but the said action can be taken only in good faith. The defendants had failed to prove on record any decision taken by the partners qua expulsion of the plaintiff-Ram Piari to justify their action that it had been taken in good faith. The defendants had merely sent a telegram qua expulsion of the plaintiff from the partnership firm. In these circumstances, the Courts below rightly held that the action of the defendants in expelling the plaintiff from the partnership firm was illegal. In these circumstances, the partnership deed dated 9.11.1998 entered between the partners by excluding the plaintiff and allocating her share to her son Roshan Lal was liable to be set aside.
It has been further noticed by the trial Court in the impugned judgment that the partnership deed Exhibit D2 was dated 12.12.1996 whereby the terms of partnership were settled between the parties including the plaintiff. The affidavit relied upon by the defendants had been executed by the plaintiff on 16.9.1996 and the same was not referred to in the partnership deed dated 12.12.1996. In these circumstances, the affidavit which had been sworn by the plaintiff before the partners had settled the terms of partnership had no bearing in the terms of the partnership business. In these circumstances, the suit filed by the plaintiff was liable to be allowed.
No substantial question of law arises for consideration in RSA No.3238 of 2010 6 this appeal.
Dismissed.
( Sabina ) Judge May 19, 2011 arya