TMI Blog1974 (6) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... e time in March 1959 and the transfer of the said truck in favour of the firm was registered by the Regional Transport Office. Now, it is a matter of common general knowledge that in the City of Bombay the Regional Transport Officer does not register a motor vehicle in the name of a firm as such, presumably because the firm is not a person. In any event the practice is that the motor vehicle is registered in the name of a partner or partners of the firm. It is to be noticed from the record of the R. T. O. that the said truck was registered in the following manner: Smt. Rasika S. Doshi, Partner Messrs. Parekh and Co., 102 Chakla Street, Bombay. (Italics supplied). 4. Some time in the first week of May 1960, the said truck was sold by the firm to respondent No. I Gangaram Shamdas for a sum of ₹ 23,201. it is on record that the transaction of sale of the said truck was brought about by a broker by the name of Nanji. It is not disputed and, is indeed, common ground, that a sum of ₹ 101 was paid towards the price of the said truck on May 5, 1960 and a further sum of ₹ 3,100 was paid by respondent No. 1 on the following day, that is to say, May 6, 1960, leavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xh. A, it would appear that non-user of the truck was noted from May 13, 1960 to August 29, 1960. There is nothing on record to show as to who applied for the noting of non-user. But as we have already mentioned, the documents relating to the said truck were admittedly with respondent No. 1 a few days after the date of the transaction. Ultimately after the Receiver appointed in Suit No. 1429 of 1960 was discharged and the said truck handed back to respondent No. 1, the transfer of the truck was effected in the records of the Regional Transport Office and from the vehicle card, exh. A, it appears that the transfer was effected in the name of respondent No. 1 Gangaram Shamdas. However, the transfer date is shown as 28-6-60/23-1-61. There is no explanation as to why a double date has been given as the date of transfer. But it is sufficient for us to notice that at least on January 23, 1961 the truck was transferred into the name of respondent No. 1, so that the appellant could contend that at least from January 23, 1961 the balance amount of ₹ 20,000 became payable by respondent No. 1 as the balance purchase price of the truck. 8. Respondent No. 1 did not, however, pay the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed by him in the suit was that the said truck was not purchased by him from the firm of Messrs. Parekh and Co., but that it was purchased by him from respondent No. 2 Smt. Rasika Shantilal Doshi in her individual capacity. Respondent No. 1, therefore, contended that there was no privity of contract between Messrs. Parekh and Co. or the appellant on the one hand and respondent No. 1 on the other. But in the said written statement filed by him (respondent No. 1), he did not dispute that the balance of ₹ 20,000 was still payable by him in respect of the price of the said truck. 14. Respondent No. 1 then contended that if it was held by the Court that the appellant was entitled to file the suit and claim ₹ 20,000 as the balance sale price, then the suit was premature and not maintainable because marketable title free from reasonable doubt in respect of the said truck had not been made out. This contention appears to have been taken on the footing that a suit had been filed by Messrs. Bholaram Mulchand in which Messrs. Bholaram Mulchand claimed title to the said truck. On this contention respondent No. 1 submitted that he was entitled to repudiate the contract of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the issue as to the payment of ₹ 20,000 by respondent No. 1 to the appellant, he came to the finding that the suit by the appellant alone was not maintainable and that respondent No. 2 having been joined as a party-defendant to the suit after the period of limitation did not make the suit as filed maintainable and he, therefore, ordered that although the appellant as the plaintiff in that suit had succeeded on every issue on the merit, her suit must be dismissed as not maintainable. 19. The plaintiff in the suit was thus compelled to file this appeal and that is how the appeal has come before us. 20. Mr. Chhaya, the learned advocate for respondent No. 1, has not only sought to support the decree on the issue of maintainability which has been decided in his favour but also to support the decree on the grounds decided against him in the Court below. This he is clearly entitled to do and we shall deal with those grounds at a later stage. 21. We will first take up and consider the main issue in the suit, which is as to maintainability of the suit as filed by the appellant. 22. On behalf of the appellant it has been argued that the suit was clearly maintainable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dissolution refers in particular to the said truck and the fact that a balance of ₹ 20,000 is recoverable and that the partnership between the appellant and respondent No. 2 is dissolved as from September 1, 1960. Respondent No. 2 who has written it in the form of a letter, which is accepted and confirmed by the appellant, also mentions that- I have now no right or claim on Parekh Co. Similarly I have no right or claim on the property of Parekh Co., that you are entitled to the firm's goodwill, goods, stock-in-trade, outstanding etc. and that you are entitled to recover the above stated outstandings and use them, I have no concern for the said recoveries. I have relinquished all my rights of a partner of my own free will. 1 have retired from I-9-I960 and from tha date I have no concern in the business of Messrs. Parekh Co. The letter also states that the appellant will be solely responsible for all the profits and losses. 26. Now, an assessment of the document which is before us clearly shows that there is a relinquishment and that the assets and rights of the partnership are set out and relinquished by the retiring partner in favour of the continuing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llary matters and that the stamp duty cannot be levied separately on such matters. In that case it was held that (p. 50): ... We do not think that Article 47 of Schedule I of the Bombay Stamp Act, 1958. which provides a stamp duty for a deed of dissolution of partnership merely contemplates a one sentence agreement of dissolution providing that the Partnership was dissolved and fixing the date of dissolution. We think that such an agreement must of necessity cover other matters which arise directly out of the fact of dissolution ... closing down or continuation of business, collection of outstandings and payment of liabilities. For this purpose, a power of attorney and an indemnity clause would also ordinarily be necessary. These are matters that depend upon the fact of dissolution and arise out of that fact and ancillary thereto. Experience also shows that in deeds of dissolution the mere fact of dissolution of partnership and fixing the date of dissolution are not provided for, but the other matters which are provided in the instrument before us are matters normally provided for in a deed of dissolution. If we were to read each clause of the deed of this instrument separately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issolution of the partnership with effect from April 1, 1966, it would be a deed of dissolution of partnership. In so far as it conveyed the interest of the plaintiffs to the defendant in the partnership, it may be argued that it was a transfer or conveyance. In so far as it provided for payment of certain amounts to each of the plaintiffs, it may be argued that the document was a bond. In so far the defendant indemnified the plaintiffs in respect of liabilities other than certain specific liabilities, the document contained an indemnity bond. In so far as it provided that the income tax and sales tax liabilities would be shared equally, if is possible to argue that it was an agreement. In so far as it restricted the plaintiffs from carrying on the business in the name and style of Messrs. Oriental Engineering Company in Nagpur, Bhopal and elsewhere, it may amount to a negative covenant. In so far as the defendant was constituted a lawful attorney of the plaintiffs for the purpose of recovering outstanding and paying liabilities, the document contained a power of attorney. It is, However, contended Before us that the document amounted only to a bond, in addition to being a deed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goodwill, goods, stock-in-trade, outstanding etc. to the remaining partner. In fact, the free translation of Exh. C to which we have referred specifically provides that the appellant was entitled to recover the above said outstandings, meaning thereby the balance price of the said truck. A provision of this kind is clearly a matter ancillary to the dissolution of partnership and can be properly incorporated in the deed of dissolution without attracting additional stamp duty. 38. Now, if this then is the state of the law then the argument of Mr. Chhaya that the appellant as the plaintiff had no right to sue in her name fails. We must hold and we do so that the original of Exh. C was properly stamped as a deed of dissolution and notwithstanding that it contained ancillary matters referred to by us the document could not be said to have been insufficiently stamped. In other words, it was not liable to be stamped as an assignment, transfer or conveyance, as contended. 39. Mr. Chhaya has sought to seek support from a decision of this Court in In re Hiralal (1908) 10 Bom. LR 730 for the contention canvassed by him that the original Exh. C was not sufficiently stamped. The judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be invited to a judgment of this Court in Ahmedbhoy Habibbhoy v. Sir Dinshaw M. Petil (1909) 11 Bom. L R 545 and it was contended that title is doubtful when third parties' claim and interest are involved. 44. Now, first of all we do not find this authority applicable to the facts of this case because here there are no facts in controversy between the vendor and the purchaser. What was held in that case was that if at the time when the property was offered to the purchaser there were facts in controversy between the vendor and the purchaser of a kind which might be ascertained in an inquiry between them alone, then the quality of the title is to be found not as it was last offered but as to when the inquiry was being made. In the case before us the facts are clearly different. First of all it is on record that both the vendor and the purchaser have denied the claim of Messrs. Bholaram Mulchand. It is also on record that the suit filed by Messrs. Bholaram Mulchand, being Suit No. 1429 of 1960, was admittedly dismissed for non-prosecution after the present suit was filed. We are in agreement with the learned Principal Judge when he says in his judgment that the fact that a th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances that the learned Principal Judge held, and rightly so, that respondent No. 1 was not entitled to repudiate the contract of sale on the ground as alleged. 46. It was then suggested that the suit was not maintainable because it had not been filed in the firm name. This contention was obviously made on the footing that Exh. C did not validly assign the right, title and interest of the outgoing partner to the continuing partner, viz. the appellant-plaintiff. It is really no longer necessary to discuss this aspect of the matter because we have already held that Exh. C as a deed of dissolution even though containing ancillary matters of the nature mentioned was properly stamped. Now, the document having been admitted in evidence, it must follow that the rights relating to the assets of the partnership and in particular the said truck had been effectively assigned and transferred to the appellant who could therefore proceed to sue in her own name as she has done. 47. It is to be noticed that the learned Principal Judge dismissed the suit on the point of maintainability because he came to the conclusion that the suit should either have been filed in the name of the firm or b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
