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Showing contexts for: Partnership firm dissolved in M/S.Hindustan Petroleum Corporation ... vs M/S.Gem Paper Company on 1 November, 2010Matching Fragments
(i) Whether the lower Appellate Court was right in describing the defendant as a rank trespasser ?
7. Mr.O.R.Santhanakrishnan, the learned counsel for the appellant/defendant Corporation submitted that originally the suit was filed in the name of the partnership firm represented by one of its partners Sundaram and subsequently, the partnership firm was dissolved by a deed of dissolution dated 20.03.1987. Thereafter, by filing I.A.22866 of 1987, the other partners were added as plaintiffs 2 to 4. Subsequently, the 2nd plaintiff Aravamudhan died and respondents 4 and 5 herein were added as plaintiffs 5 and 6. The learned counsel further submitted that on the death of one of the partners, the partnership firm got dissolved and as such, the right to sue by the partnership firm had also been ceased and hence, the newly added respondents cannot claim to be the legal successors. In this regard, the learned counsel for the appellant, by inviting the attention of this Court to section 42(c) of the Partnership Act, submitted that the firm is deemed to be dissolved unless the respondents were able to prove that there was a contract to the contrary and under such circumstances, the suit filed by the partnership firm has no legs to stand. In this regard, the learned counsel relied upon the judgments reported in the case of COMMISSIONER OF INCOME TAX, BOMBAY ..vs.. EMPIRE ESTATE, BOMBAY((1996)2 SCC 345), PEERAN SAHIB ..vs.. PEDDA JAMALUDDIN SAHIB (AIR 1958 AP 48) and MOHD.LAIQUIDDIN ..vs.. KAMALA DEVI MISRA ((2010)2 MLJ 820 (SC). Therefore, on this short ground, the appeal has to be allowed by setting aside the judgment and decree of the courts below.
(4) Whether the tenant has committed any breach of the terms of lease, resulting in forfeiture of his right to claim protection under the City Tenants' Protection Act, especially in the circumstances when the appellant is entitled for statutory renewal ?
17. With regard to the first question, it is the submission of the learned counsel for the appellant that on account of the death of one of the partners, the partnership firm got dissolved and as such, the suit itself is not legally sustainable. It is also the submission of the learned counsel for the appellant that when the firm itself got dissolved on the death of one of the partners, the other partners, namely, plaintiffs 3 and 4, by impleading the legal heirs of deceased partner Aravamudhan as plaintiffs 5 and 6, cannot maintain the suit. In this regard, the learned counsel, by relying upon section 42(c) of the Partnership Act, submitted that the partnership firm would get dissolved on the death of a partner and unless the plaintiffs were able to prove the contract to the contrary, they cannot continue the suit. In support of this contention, the learned counsel for the appellant has relied upon the following judgments and the relevant passages of which judgments are extracted hereunder:
21. On going through the said decisions, I am of the view that the judgments relied on by the learned counsel for the appellant will be useful to come to a conclusion that on the death of one of the partners, the partnership firm would get dissolved. But the question that arises for consideration in this matter is, whether the dissolved partnership firm can continue the suit or not ?
22. The following case, namely, 1994(1) MLJ 545 (S.V.S.DAVEY SONS ..vs. LIBERTY DRY CLEANERS UNDER THE NAME BOARD, GARMENT CLEANERS, MADRAS) gives the fitting answer to the above said question posed by this Court. In that case, Justice Venkatasamy (as he then was), has after making reference to various decisions of other courts, concluded as follows:
23. In 1994(2) MLJ 328 (supra), a learned single Judge of this Court made reference to the decision in J.Prasanna Chandrasekaran ..vs.. M/s.Mohan Steel Corporation by its Partner, Kailash Chand Gagoria (1987 T.L.N.J.74), wherein a Division Bench of this Court has made the following observation having regard to the facts of that case:
2. ....
"It was next contended by the learned counsel for the petitioner that when a partner dies the partnership itself will get dissolved. Unless there is a provision to the contrary in the agreement between the partners and in this case since there is no evidence of any agreement between the partners that the partnership will continue in spite of the death of a partner, the other partners could not be permitted to bring themselves on record and in any case the first petitioner becomes a dissolved partnership firm and could not pursue this petition. We are unable to agree with the contention of the learned counsel. We have already referred to Rule 4 of O.30 of the Code of Civil Procedure. There is no dispute and there could be no dispute that the provision of O.30 do apply to the proceedings initiated under the provisions of the Presidency Towns Insolvency Act and Rule 4 provides that on the death of a partner it shall not be necessary to join the legal representative of the deceased as a party to the suit. The ratio of this provision itself shows that the fact that the death brings in a dissolution of the partnership itself will not affect the already instituted proceedings in all the name of the firm. It will be only considered as a partnership firm if at all dissolved and represented by the erstwhile partners. The debt is not wiped out and the liability of the debtor does not get extinguished by death of a partner and dissolution of the firm as such. In the circumstances, on this ground also we could not say that the petition is not maintainable. For the foregoing reasons, the appeal fails and it is accordingly dismissed".