9911796707
TMI Blog2024 (11) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... up; and (c) restraining the defendants from recovering, receiving or disposing of the property and effects of the firm. 3. The plaint case, inter alia, was that -- the firm was constituted in 1972-73 with four partners (i.e., the original plaintiff and defendants 1 to 3) each having onefourth share; the partnership was at will; in 1978, without the consent of the plaintiff, defendants 1 to 3 diverted funds of the firm to a private limited company (defendant no.4 - appellant no.1 herein); and when the plaintiff demanded accounts from defendants 1 to 3, they refused. Hence, the suit. 4. The appellants contested the suit, inter alia, claiming that - the firm was constituted on 07.07.1971, with effect from 01.05.1971; it was not a partnership at will; a joint stock company was formed with the approval of the partners including the plaintiff; and by agreement dated 25.06.1978 all assets and liabilities of the firm were transferred to the fourth defendant (appellant no.1 herein). 5. The trial court passed a preliminary decree on 19.09.1988, inter alia, in the following terms: (i) the firm stands dissolved with effect from 07.10.1978 in terms of Section 42(b) read with Section 44 (g) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent, it is directed that the court receiver to appoint the appellant as his agent to carry on the business of the company on such terms and conditions regarding royalty, security and other matters as he thinks fit. The receiver may also take such undertakings from the appellant as he thinks proper. The terms and conditions to be settled after giving both the parties an opportunity of being heard. In case the appellant is not willing to accept the agency to run the business on the terms and conditions determined by the receiver, the receiver may make an application to the court for further directions. Appeal disposed of with no order as to costs." 9. Subsequently I.A. No.2176 of 1992 was filed by the original plaintiff for a direction to the Receiver to take possession of the firm. When the trial court found that proper steps were not taken by the Receiver, a fresh Receiver was appointed after removing the earlier Receiver. Appeal preferred against that order was dismissed. Still aggrieved, a revision petition was filed. In the meantime, the original plaintiff moved I.A. No.2004 of 1993 to summon the Receiver with reference to his report, which too was rejected. Another revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as well as the various objections put forth by her to the report preferred by the Receiver as well as the statement of accounts submitted by her through her auditor Natarajan in any manner, in such view of the matter, in my considered opinion, the final decree passed by the court below cannot be sustained in the eyes of law. .................... I'm of the considered view that the matter requires remittance back to the trial court with the direction to the trial court to provide opportunities to both the parties to adduce further evidence particularly to sustain the statement of accounts rejected by them respectively by examining the authors of the same. The trial court is also further directed that considering the facts and circumstances of the case and after assessing and analyzing the further materials to be placed on record, if need be, if it still opines that the report of the receiver cannot be relied upon for one reason or the other and when the receiver had been appointed in this matter to only ascertain the income that could be derived during the relevant period for determining the share to be allowed to the petitioner / plaintiff, is empowered to examine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the authors of the same. The trial court is also further directed that considering the facts and circumstances of the case or the materials to be placed on record, if need be, if it still opines and concludes that the report of the Receiver cannot be relied upon for one reason or the other and when the receiver had been appointed in this matter to only ascertain the income that could be derived during the relevant period for determining the share to be allowed to the petitioner / plaintiff, is empowered to examine him vis-a-vis the report filed by him and thereby provide opportunities to the parties concerned to cross examine him as to on what basis he had submitted his report. After the above said exercise, the court below is directed to accordingly appreciate the materials placed on record in the right perspective in accordance with law and proceed with the contentions put forth by the respective parties in the matter and accordingly pass appropriate orders as per law in the petition preferred by the petitioner /plaintiff for the appointment of a fresh commissioner/ receiver for looking into the accounts of the firm and ascertaining the amount that is payable to her. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tives to such share of the profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of 6% per annum on the amount of his share in the property of the firm: Provided that where by contract between the partners an option is given to surviving or continuing partners to purchase the interest of a deceased or outgoing partner, and that option is duly exercised, the estate of the deceased partner, or the outgoing partner or his estate, as the case may be, is not entitled to any further or other share of profits; but if any partner assuming to act in exercise of the option does not in all material aspects comply with the terms thereof, he is liable to account under the foregoing provisions of this section." 21. In the instant case, the finding, which appears on the record, is to the effect that the fourth defendant (appellant company) had taken over the assets of the firm. Therefore, in light of the provisions of Section 37 of the 1932 Act, if the fourth defendant is carrying on business with the assets of the firm, till a final settlement is made, the plaintiff, who would fall in the category o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
