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TMI Blog1992 (6) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... from acting in terms of or pursuant to or in furtherance of the said partnership agreement in any manner whatsoever; Receiver; injunction; attachment; costs etc. After the suit was instituted the plaintiff made an application inter alia, for appointment of Receiver and for injunction and various orders were passed on the said application from time to time. The suit was instituted sometime prior to July 5, 1991 and pursuant to the said interlocutory application made by the plaintiff, an order was passed by the interlocutory court on July 5, 1991. On the said date, learned Counsel appearing on behalf of the defendants, gave assurance on behalf of the defendants that the defendants would not operate the bank account of the partnership firm in the United Bank of India and would not incur any other liability on account of the partnership firm. 2. One of the allegations contained in the plaint as originally filed was as follows:-- 10. The said partnership firm since 1985 has taken up three projects and/or construction of three building in Tagore Park area out of which one is a four storied building comprising of 10 flats and the third project is a five storied building comprising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants preferred an appeal and the Court of appeal by its order dated 9th October 1991, stayed only that part of the order dated Sept. 23, 1991 where the learned Judge had observed: The address mentioned in prayer (d) will be 587-20, Dr. R.N. Tagore Road, Tagore Park, Calcutta-56 . However, the court of appeal made it clear that it would be open to the plaintiff-respondent No. 1 to file an application for amendment of the plaint, if she was so advised, which would be considered by the learned Judge taking interlocutory matters in accordance with law and appropriate order would be passed. However no stay was granted in so far as the order for appointment of receiver and injunction is concerned. The order for appointment of receiver and for injunction could only be interpreted to be in respect of the partnership assets as alleged by the plaintiff. It is to be remembered that according to plaintiff's case as originally made in the plaint and the petition the partnership undertook three building projects. However the plaintiff did not give particulars of the three projects in the plaint and/or in the petition for appointment of receiver. The defendants admitted two projects in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed for, on behalf of the plaintiff. The first amendment that was prayed for was addition of paragraph 10A to the plaint. Paragraphs 10 and 10A of the plaint, which are relevant for this purpose are set out hereunder:-- 10. The said partnership firm since 1985 has taken up three projects and/or construction of three buildings in Tagore Park area out of which one is a four storied building comprising of 10 flats and the third project is a five storied building comprising of 9 flats. The said projects apart from the said flats also have (masonry?) floors, shop rooms, garages etc. which were sold out separately, The said partnership business involved several lacs of rupees. 10A. The aforesaid projects and/or constructions of 3 (three) buildings as stated in paragraph 10 are as follows:-- (i) Project I: situated at Premises No. 587/18, R.N. Tagore Road, Caclutta-700056; (ii) Project II: situated at Premises No. 587/19, R.N. Tagore Road, Calcutta-700056; (iii) Project HI : situated at Premises No. 587/20, R. N. Tagore Road, Calcutta-700056. 11. So far as this amendment is concerned, the plaintiff had already mentioned in paragraph 10 of the plaint that three proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for amendment or to pass an order for amendment. This is to be noted that this point that the suit has become a suit for land in respect of a property situate outside the jurisdiction of this court, was not at all urged in the affidavit-in-opposition, nor was the same argued before the learned trial Judge. 14. The next contention that was made on behalf of the appellant is that by virtue of the allegations which have been introduced by way of amendment, the suit is hit by the Benami Transactions (Prohibition) Act, 1988. This contention also, was not raised before the interlocutory Court while opposing the application for amendment. 15. Learned Counsel appearing on behalf of the appellant, in support of his contention that by allowing the amendments to the plaint the suit originally filed has become a suit for land, relied on various judgments, viz., a decision of the Federal Court reported in AIR 1950 FC 83 (M/s. Moolji Jaitha Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd.), a decision of the Special Bench of this Court reported in AIR1959Cal767 , (Maharaja Probirendra Mohun Tagore v. State of Bihar), a decision of this Court reported in AIR1986Cal57 (Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff/respondent also relied on a decision reported in AIR 1947 Lah 13 (FB) (Ajudhia Pershad Ram Pershad v. Sham Sunder). In the said decision, it was inter alia, held as follows:-- It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm and it will, therefore, be correct to say that, for the purposes of the Indian Partnership Act, and irrespective of any mutual agreement between the partners, the share of each partner is, in the words of Lindley : 'his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged. The Full Bench of the Lahore High Court in the said decision also held that there would thus appear to be no doubt that the share of a partner in an existing partnership is essentially movable property, notwithstanding that a part of the partnership property may be immovable. The same view was taken by the Supreme Court in the decision reported in [1966]3SCR400 (Addanki Narayanappa v. Bhaskara Krishnappa). There the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property situate outside the jurisdiction of this Court which admittedly stood in the name of the defendant's predecessor an ex-partner of tie dissolved firm. If the firm was dissolved by consent in 1976, there was no scope for any suit for accounts, nor was there any such relief claimed in the suit. It was not the case of the plaintiff that the agreement for dissolution was subject to any accounts to be taken in future. 21. In the said case the Division Bench held that the principle that the shares of the partners in the firm's assets must be treated as movable property was not applicable in the said case. The Division Bench also held that the primary and only object of the plaintiff in the said suit was to establish his title to the premises out of the jurisdiction and have possession and control of the same. The plaintiff alleged in the plaint that the defendants were denying and/or interested in denying the plaintiffs title to the said property. The instant suit is a suit for accounts and that is the primary object of the instant suit. It could not be said in that case that the suit was a suit for accounts. In the said case the ratio of the aforesaid judgments in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Benami Transactions (Prohibition) Act, (where there is a question of trust), the Act does not prohibit the enforcement of the trust. 23. Section 14 of the Indian Partnership Act, 1932 provides that subject to contract between the partners, the property of the firm includes all properties and rights and interests in property originally brought into the stock of the firm or acquired, by purchase or otherwise, by or for the firm or for the purposes and in course of the business of the firm and includes also the goodwill of the business. It also provides that unless the contrary intention appears, the properties and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm. 24. In a suit for dissolution of partnership and for accounts the necessary pleadings are, as set out in Form No. 49, Appendix A of the Code of Civil Procedure. From the said form it will appear that it is not even necessary in a suit for dissolution and for accounts to plead as to what are the different assets of the partnership firm. All that has to be pleaded is that there was a partnership, the terms of the partnership deed and/or the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayed for, the suit does not and has not become a suit for land nor is the suit hit by the Benami Transactions (Prohibition) Act, 1988, as is being sought to be urged on behalf of the appellant. The observations which have been made above are for prima facie purposes but this will not debar the defendants from raising any such defence at the time of trial of the suit as to the maintainability of the suit or as to the jurisdiction of the Court as the defendant may be advised. 30. The appellant obtained stay of further proceedings in the suit pending before the learned trial Court and the appeal Court at the interlocutory stage also restrained the defendants from transferring, encumbering or creating any third party right during the pendency of the appeal and directed the defendants to maintain status quo in respect of the subject matter in dispute. The stay was granted conditionally as aforesaid and the status quo order was a condition to the order for stay. 31. At the interlocutory stage in this appeal, the appeal Court then taking the matter inter alia ordered that in view of the order of stay passed, it need not be said that it is always open to the party to the suit to see ..... X X X X Extracts X X X X X X X X Extracts X X X X
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