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TMI Blog1999 (10) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... tions that a partnership firm was constituted in the name and style of K.H. Shama Rao Sons (respondent No. 1) under the deed dated 1-1-1977 among himself, his brothers, respondents 5,9,12 and 16 including the petitioner-appellant representing their family branches. In the meanwhile, a dispute arose between the appellant on the one hand and the respondents on the other hand. Accordingly, respondents 2 to 7 reconstituted the partnership firm by a deed dated 2-4-1992. As per the said deed, the share of the appellant was 3 per cent in the profit and loss of the firm to the extent of 40 per cent. In fact, the deed dated 2-4-1992 is an unilateral one at the instance of respondents 2 to 7 wherein the appellant actually is entitled for 5 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1956 ('the Act') and further observed that there are no materials to warrant to exercise powers under clauses ( a ), ( b ) and ( c ) of sub-section (4) of section 583 of the Act. Being aggrieved of the dismissal of the company petition, the appellant has come up with this appeal. 3. The learned counsel for the appellant contended that there is no bar to maintain a petition under section 583(4) ( a ), ( b ) and ( c ) to seek winding up of the partnership concern and in fact there is no contravention of section 11. The finding of the learned Single Judge holding that it is in contravention of section 11 is erroneous. He further contended that in case on hand, section 11 is not at all applicable as the partners of the firm are les ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that actually he is entitled for 5 per cent profit whereas the profit of the appellant has been fixed at 3 per cent. It is further seen from the pleadings itself that the firm is due to him an amount to an extend of Rs. 12,500 and that he had also filed O.S. No. 3671 of 1988 in the Court of the City Civil Judge, Bangalore claiming a decree for partition of his 1 /20th share in the schedule properties and he had also filed another suit O.S. No. 1932 of 1988 for rendering of accounts with effect from 3-1-1966. These facts clearly evidence that the firm consists of more than 7 persons and thereby, comes within the meaning of unregistered companies as defined under section 583(4). Sub-sections (2) and (3) of section 11 reads thus : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny petition came to be filed under the provisions of section 583(4) ( a ), ( b ) and ( c ). Section 583 deals with winding up of unregistered companies. It is open for the partners or any one of the creditors to maintain a petition under the provisions of section 583(4). The learned counsel for the appellant relied on the decisions reported in (1) G.P. Ganapaiah Maiya v. M. T.R. Associates [1986] 59 Comp. Cas. 359 (Kar.) (2) World Wide Agencies (P.) Ltd. v. Mrs. Margarat T. Desor AIR 1990 SC 737, (3) Vasantrao v. Shyamrao AIR 1977 SC 2021; and (4) Bangalore Timber Industries v. Madras Sapper Ex-Servicemen's Rehabilitation Association [1988] 63 Comp. Cas. 733 (Kar.). 8. In the case of World Wide Agencies (P.) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 583 are made out even in case of unregistered firm of partnership consisting of more than seven persons that a petition for winding up is maintainable. It is further observed that the proceeding under the Act are summary in character whereas in case of suits filed for dissolution of partnership will be in the civil nature which consumes elaborate time for disposal of the matter. This is one of the reasons why it was held that the petition for dissolution is maintainable. 10. In the case of Vasantrao ( supra ), the Supreme Court has clearly held that an aggrieved party had an option to institute a suit for winding up of an unregistered company and further held that Part X of the Companies Act does not come in the way of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther case of the appellant that the remaining partners, i.e., the managing partner has not paid his share for the amount received in respect of the lease of the premises in favour of respondent No. 18. From the very reading of the petition, we need to observe that the ingredients of section 583(4) are not made out. In that view of the matter, though the law provides for dissolution of the unregistered company, as the appellant failed to make out the requisite ingredients for presenting the petition, we have to hold that the petition is not maintainable on the grounds pleaded. Secondly, it is not in dispute that the appellant has already instituted proceedings under the Indian Partnership Act for rendering of the accounts as well as for s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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