ORDER
V.S. Kokje, J.
1. Charan Das Grover, his mother Veera Devi and his two sons Devendra Grover and Ashok Grover were running a partnership business in the name of M/s. Green Hotel, Station Road, Bikaner. On July 8, 1995 this partnership deed was dissolved. Ashok Kumar brought a suit in the Court of Civil Judge (Junior Division), Bikaner against three other partners praying for a permanent injunction restraining them from using and transferring the properties of the Firm. In this suit an application for temporary injunction was moved by plaintiff Ashok Kumar claiming a temporary injunction restraining the respondents from using the properties given in the list attached with the application till the accounts are settled between the parties. The plaintiff Ashok Kumar also moved an application for appointment of (sic) not transfer it without the consent of the plaintiff. The plaintiff was given a right to go on the premises for seeing the accounts of the dissolved firm during normal working hours. It was also directed that the defendants would give
a duplicate key of the lock put on the place where firm’s property was stored. The plaintiff filed an appeal against the rejection of the application for appointment of Receiver as also against temporary injunction granted. The defendants also filed an appeal against the grant of temporary injunction against them. These three appeals were decided by a common order dated December 21, 1995 by the Additional District Judge, Bikaner. The learned Additional District Judge dismissed all the three appeals and maintained the order of the trial Court.
2. Now S.B. Civil Revision Petition No. 175/ 96 is filed by the original defendant-C. D. Grover against the temporary injunction granted by the trial Court against him. S.B. Civil Revision Petition No. 195/96 is filed by the plaintiff Ashok Kumar against dismissal of his appeal in the temporary injunction matter and S.B. Civil Revision Petition No. 193/96 is filed by the plaintiff Ashok Kumar against the dismissal of his appeal in the matter of appointment of Receiver.
3. As the above three revision petitions arise out of the common appellate order, they were heard together and are being decided by this common order.
4. S.B. Civil Revision Petition No. 193/96 relates to the matter of appointment of Receiver. In this case the trial Court has observed while rejecting the prayer for appointment of Receiver that the suit was for injunction only, and if the Receiver is appointed in such a suit, after a permanent injunction is granted, no further orders could be passed about the properties taken in charge by the Receiver. In other words what the trial Court meant was that this was not the relief which could be granted finally in the suit. The trial Court clearly committed an error in approaching the case from this angle. Actually what it had to consider was whether Receiver was necessary to be appointed in this case for preserving the properties in dispute, till the disposal of the suit before him. The real question before the trial Court was whether it was just and proper under the circumstances to appoint a Receiver for the properties of the dissolved Firm. The appellate Court while disposing of the appeal in respect of appointment of Receiver observed that the property of the firm was secured by interim orders and in the circumstances of the case there was no point in appointing a Receiver. Thus the orders passed by the Courts below are not comprehensive and the matter has to be looked at from all angles by this Court.
5. The learned Counsel for the plaintiff has relied on the decisions of various High Courts in support Of his contention that in the matters of partnership properties, Receiver Has to be appointed as of course.
6. The first decision, he cited was a Division Bench decision of Jammu and Kashmir High Court in Tilak Chand Jain v. Darshan Lal Jain, AIR 1985 J & K 50. My attention was; drawn to paragraphs 50 and 60 of this judgment in which it is observed that where in a suit pertaining to partnership concern the trial Court found that prima facie the firm appears to have been dissolved and no steps have been taken for winding up of the firm in accordance with law and plaintiff’s i.e. outgoing partner’s share in the firm was lying with the other partner who was continuing to run business of firm by taking his wife as partner, the refusal by the Court to appoint a Receiver would be unjustified. However, in the very same judgment it has been rightly observed that the appointment of a Receiver in respect of a dissolved partnership Firm is in the discretion of the Court and in exercising that discretion, the Court will be directed by the consideration of preserving and protecting the property and assets of the dissolved Firm. The above ruling is clearly distinguishable on facts. From Para-4 of the judgment it is clear that in that case the suit was not merely for permanent injunction. The plaintiff claimed to continue as partner disputing dissolution of the firm and in the alternative he had sought a decree for settlement of accounts and determination of the plaintiff’s share in the business of the firm and had prayed that the firm be wound up and payment be made to the plaintiff in respect of his share in the Firm. In the case in hand, it is merely a suit for injunction. This will make a difference because there is no purpose which could be fulfilled by appointment of interim Receiver ultimately if the suit is decreed only a permanent injunction would be granted and disputes regarding dissolution winding up of the Firm and distribution of its assets would still remain. The Court is not expected to create a situation in which Receiver is appointed only up to a permanent injunction is granted who would not continue thereafter even though the disputes amongst the parties continue.
7. The next case cited was a Division Bench decision of the Patna High Court in Sheonarain Jaiswal v. Shree Kripa Shankar Jaiswal, AIR 1972 Pat 75. It was contended that, this case has laid down that the Receiver has to be appointed as a matter of course in the partnership dispute. However what can be culled out from paragraphs 8, 10 and 11 of the judgment is that in a suit for distribution and partition of the assets of the dissolved firm where it is found that the relations of the partners are strained, the Court can appoint a Receiver as a matter of course. This again is a case distinguishable on facts clearly and the suit in that case was only for permanent injunction.
8. The next case cited was a decision of Punjab and Haryana High Court in Nihalchand L. Jai Narain v. Ram Niwas Munna Lal, AIR 1968 Punj 523. In this case it is held that where a partner is excluded from the management of the partnership affairs, appointment of Receiver is justified. Obviously, the case related to a running partnership concern and not a dissolved Firm. The suit was for specific performance of an agreement. This case again is distinguishable on facts and is not applicable to a suit for merely an injunction.
9. In G. Ramchandrayya v. Nethi Iswarayya, AIR 1952 Hyd 139, it was held that no hard and fast rule can be laid down insofar as the question of appointment of a Receiver is concerned. Whether it would be just and convenient in a particular case to appoint a Receiver would depend on the facts of the case. It was, therefore, observad that underlying principle of Order 40, Rule 1, C.P.C. is that the subject-matter of the suit should be allowed to remain intact in order to see that at the end of the final judgment, the parties are entitled to benefit from it.
10. In the present case, when the final relief claimed is only an injunction, no purpose would be served by appointing a Receiver for preserving the property till the final disposal of the suit.
11. The other case cited was Sudhansu Kanta v. Manindra Nath, AIR 1965 Pat 144. What has been observed in the case is that it is well-known that a Receiver is to be appointed as a matter of course when the partnership is dissolved or when the partnership has already been dissolved and any of the parties have come to the Court for seeking relief due to him as an ex-partner. The case again is distinguishable on facts from the case in hand.
12. The decision of Rajendra Kumar Brijendra Kumar Sharma, AIR 1994 All 62, is also distinguishable on facts for the same reasons.
13. The decision of this Court in Mukherjee v. Nand Kishore, AIR 1981 Raj 160, cited at the Bar also holds that the only object and effect of appointment of a Receiver is to maintain things in their existing condition during the pendency of the suit.
14. In the present case no useful purpose would be served even if the property is preserved till the disposal of the suit as suit is only for injunction. There is no case for appointment of Receiver. Both the Courts below have, therefore, rightly dismissed the application for appointment of Receiver. The Revision Petition No. 175/96, therefore, deserves to be dismissed.
15. So far as the other two revision petitions relating to temporary injunction matter, are concerned, the trial Court has passed a very unusual order, the compliance of which would create further difficulties and it would not be possible to supervise the enforcement of the order. The trial Court in paragraph 19 of its order has stated that it was an agreed position that the Firm Green Hotel had dissolved on July 8, 1995. It was also admitted that Ever Green Hotel was running in the premises where Green Hotel was running earlier. In Paragraph-21, the trial Court has found prima facie case on the basis of an agreement executed in the year 1981 that the premises in which the Hotel was running belonged to Charan Das and was not the property of the Firm. The Court has found further that prima facie it was proved that the moveable property found on the premises was the property of the dissolved Firm in which the plaintiff had 1/4th share.
16. The question to be considered in these revision petitions is that where on the facts found, the lower Courts have committed material irregularity in granting and confirming the temporary injunction granted by the trial Court and confirmed by the appellate Court. The defendants had objected to the temporary injunction being granted earlier on the ground that the loss which was alleged to be caused to the plaintiff was capable of being compensated in terms of money and, therefore, a temporary injunction could not be granted. It is also contended that if the injunction was not granted, no irreparable loss would be caused to the plaintiff. The trial Court disposed of this petition by holding that it was not possible at that stage for the Court to fix the market price of the moveable property and it would not be possible for the
Court to determine the depreciation in the value of the articles and, therefore, it was a case in which monetary compensation shall not be adequate and irreparable loss would be caused to the plaintiff. It is very difficult to agree with such a view. When it is considered as to whether monetary compensation would be adequate or not, the compensation which is determined ultimately is in question and not the value of the property at the stage of deciding temporary injunction application. The Court had to address the question as to whether the plaintiff can ultimately be compensated in terms of money for whatever loss he is able to prove in the suit.
17. In the present case, the moveable property is mostly the utensils and articles which were used in running a hotel business. Obviously, because it was property of the Firm, in the accounts of the Firm the vouchers of purchase of such articles should be available. It cannot, therefore, be said that the value of the property cannot be ascertained. If the original value of the articles is ascertainable, the value at the time of the dissolution could also be assessed applying the established principle of depreciation in value. It is, therefore, clear that the conclusion reached by the trial Court that monetary compensation shall not be adequate in the case is not sustainable. It is such a conclusion which no reasonable person would reach in the circumstances of the case.
18. Moreover, the nature of the order passed by the trial Court is such that instead of solving the problem it would further complicate it. The trial Court has held that the business of Green Hotel and Ever Green Hotel are different. The list of properties furnished by the plaintiff to be the property of the dissolved Firm has not been admitted by the defendant who have claimed that these are the properties of Ever Green Hotel. In such circumstances, it will have to be ultimately proved as to which articles belonged to the dissolved Firm and which articles belonged to the defendant. This could not have been determined even prima facie article wise at this stage of the suit. The conclusion reached by the trial Court that all the moveable properties found in the premises, prima facie belonged to the dissolved Firm is also such as would not be reached by a reasonable person in the circumstances of the case. This is specially so as the Court has found that the premises in which the dissolved Firm used to run its business prima facie, belonged to one of the defendants and the
new business in the name of Hotel Ever Green
was not the continuation of the business of the
dissolved Firm.
19. In these circumstances, the temporary injunction granted by the trial Court and confirmed by the appellate Court cannot be allowed to continue in the form in which it has been granted. The order of the trial Court as well as the appellate Court are set aside. In order to preserve the property of the dissolved Firm only, it is sufficient if the defendants are restrained from transferring the moveable property mentioned in the list furnished by the plaintiff till the disposal of the suit without obtaining specific permission from the Court. The temporary injunction in the aforesaid terms only is granted against the defendants.
20. Consequently, S.B. Civil Revision Petition No. 175/96 is dismissed and S.B. Civil Revision Petition Nos. 193/96 and 195/96 are partly allowed. The defendants are restrained from transferring the moveable properties enumerated in the list furnished by the plaintiff in the trial Court without permission of the trial Court.