JUDGMENT
Samir Kumar Mookherjee, J.
1. This matter is treated as on day’s list upon notice to the learned advocates, appearing for the contesting parties, who are present in Court at the time of delivery of judgment.
2. The present appeal is directed against Order No. 57, dated 7th January, 1994, passed in Title Suit No. 122 of 1991, by the learned Judge, Third Bench, City Civil Court, allowing an application for injunction, made on behalf of the plaintiff, in part. The plaintiff is the appellant before us.
2a. Since, on behalf of the necessary party-respondents, caveats had been lodged and since we felt that the appeal and the application, for effective disposal, should be heard and disposed of together, we heard out the appeal and the application dispensing with all formalities. We keep on record that the appearing parties before us signified their no objection to the said procedure. We admit the appeal and take up the same with application for leaving and disposal.
3. The appellant and respondents 1 to 3 are allegedly partners of Respondent No. 4. Respondent No. 5 is the landlady of the premises in which the partnership business was being carried on. In view of the scope of the dispute before us, we have dispensed with notices of. appeal and the application on respondents No. 4 and 5.
4. The suit in question was brought, inter alia, praying for a declaration that defendants Nos. 1 and 2 could not surrender or transfer the tenancy in the partnership’s name, for a permanent injunction restraining the defendants 1 and 2 from interfering with plaintiff’s carrying on of the business of the firm, on behalf of all the partners and also from carrying on similar competitive business in the name of M/s. Pioneer and Company. In the said suit an application for injunction was made.
5. The defendants 1 and 2 filed a counter claim, inter alia, praying for declaration that the business of the firm stood closed since 1987 and that the firm stood dissolved since 1988; alternatively, a prayer was made for a decree dissolving the partnership under the partnership agreement dated 15.4.1978 and 19.4.1983,
6. The learned Trial Judge, by the impugned Order, restrained the defendants from surrendering the tenancy of the partnership firm but refused the other prayers for injunction.
7. In passing the impugned Order, the learned Trial Judge, inter alia, found in substance that alleged dissolution of the partnership firm was not established but the firm still existed; that no satisfactory and convincing materials were available to sustain the allegation that separate competitive business was being carried on; that plaintiff could not be allowed to run the business to the exclusion of other partners.
8. In course of arguments by the contesting parties, before us, it appeared that respondent no. 3 was supporting the plaintiff. The learned Advocates, representing the parties, spared no pains in placing the materials, which were placed before the learned Trial Judge, in support of their respective contentions. Such materials reveal the following:-
(a) Clause 2 of the partnership deed prohibited ipso facto determination of the firm, if there were two partners available, who were willing to carry on the partnership. Clause 14 of the said deed provided for such continuance even after retirement of a partner.
(b) The alleged competitive business did exist with effect from 3.7.1987.
(c) Allegations of forgery were made by both the contesting parties against each other.
(d) The plaintiff alleged that the partnership business, which was under the control and management of defendants 1 and 2, was closed when the plaintiff demanded accounts, which would have resulted in detection of misappropriation of partnership funds by defendants 1 and 2 for their personal gains and would have established the deprivation of the plaintiff of his share of profit in the business.
(e) The plaintiff alleged that he opened the shop of the disputed partnership and had been carrying on business after renewing the license and paying professional tax and income tax and other taxes. The business was earning profit and the fund needed for such running had been provided by the plaintiff. The accounts were compiled up to March, 1993.
9. We have heard the submissions of the learned Advocates for the contesting parties. Considered in the background of such submissions and the materials, made available to us, as parts of records of the Trial Court, we feel that the impugned portion of the order should not be sustained or affirmed. There is no scope for doubt that the reasonings of the learned Trial Judge in refusing the other prayers for interim Order are not fully appropriate. The ratio propounded by the Supreme Court in the case of N.O.H. Udumau and Ors. v. M.O.H. Ashlum , prima facie, may have application in the facts of the present case. The argument of Mr. Ghosh that in the admitted position of the partnership business having been closed since 1987, no question of interference with the Order of the learned Trial Judge can arise, if accepted, would result in giving the allegedly delinquent partners, an opportunity of reaping the benefit of their unlawful acts even if at the end of the suit the plaintiff succeeds.
10. In the instant case, admittedly there are two business, which are claimed to be businesses of the partnership, though according to the defendants the second business has no connection with the partnership business and as such no benefit of the second business should be made available to the plaintiff. These are questions, which require to be adjudicated in course of the trial but if some interim protection is not made available by Court, the apprehension expressed in the earlier part of this judgement may become true. It is well settled in law that if the Court finds that relief by way of injunction may not serve the desired end in full, if the circumstances and facts relating to a particular case so warrant, a relief by appointment of Receiver may be granted to protect the interest of the contesting parties. We are not unmindful about another settled position in law that ordinarily a Court of law should not make itself a Manager of Trade and particularly in case of dispute between partners the relief by way of appointment of Receiver is seldom granted but it is equally and firmly established that if the allegations, even in a partnership dispute show prima facie, that a partner, by acting inconsistently with his duties as such may be said to have forfeited personal right of intervention in partnership affairs! either by carrying on a separate trade on his own account with the partnership property or endangering the partnership concern by his mis-management, exposing partnership firm to possible loss or indulges in fraudulent actions, or abuses his authority as a partner to exclude other partners, relief by appointment of Receiver may be imposed or granted by Court (Vide pages 115 to 119 of Sir John Woodroffe’s Tagore law lectures relating to Receiver, 6th edition). In the instant case, the allegations do purport to create special circumstances where relief of Receiver may be available. This aspect has not been at all adverted to by the Trial Court though there are findings, which partly necessitate consideration of this aspect.
11. The impugned part of the Trial Court’s order, therefore, cannot be sustained and we set that aside. Since there is conflict of views about the Court’s power to grant such appropriate relief as mentioned above, in the absence of any application by the parties, we propose to remand the application for injunction back to the Trial Court for re-consideration so far as the same relates to the prayers for injunction by the plaintiff, which were refused by the impugned order with liberty to the parties to make suitable prayers, if so advised, for relief by appointment of Receiver. We make it clear that the Court will be free to consider the merits of the respective contentions in the background of the prayers made and pass appropriate Orders if the Court finds that a party or both the parties deserve the relief in same form or other. To avoid complications it is desirable that the matter be disposed of by the Court within six weeks from the date of communication of the Order to the concerned Court, the liberty of the parties for amending their prayers being exercisable within two weeks from this date.
We are informed that an application for injunction, at the instance of the defendants, also is pending before the trial Court. We, accordingly, direct that the said application also be heard out analogously with the application by the plaintiffs.
Both the appeal and the application are thus disposed of.
There will be no order as to costs.
On the prayers, made on behalf of the parties, we direct the department to deliver the certified copies of this judgement within two weeks from the date of making of the application for urgent certified copies.
No formal decree need be drawn up in the appeal.
Santosh Kumar Phaujdar, J.
12. I agree.