Regular Second Appeal No. 3898 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 3898 of 2008(O&M)
Date of Decision: 2.2.2009
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Rakesh Kumar @ Rakesh Chand
.. Appellant
VS.
Harish Chander
.. Respondent.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. Dharmender Singh, Advocate
for the appellant.
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ARVIND KUMAR, J.
Heard. Delay condoned.
The suit of the plaintiff-appellant seeking dissolution of firm
and rendition of account has been decreed by both the Courts below. The
grouse of the appellant is to the amount to which he has been held entitled
by the Courts below.
It is apt to mention here that the learned trial court initially
passed a preliminary decree dated 23.9.2000 wherein, while ordering for
dissolution of the firm, wherein the plaintiff and defendant were found
having 50% share each, w.e.f. 25.10.1994, the date of filing of the suit by
the plaintiff, called the respondent-defendant to render the accounts of the
said firm from 1.4.1989 to 25.10.1994 for settlement between the parties.
Thereafter the plaintiff-appellant filed an application for
passing the final decree and by dint of order dated 16.2.2006 the learned
Court below passed the final decree and held the plaintiff entitled for
recovery of capital amount of Rs.60,453.66 paise along with interest @ 12%
per annum from 1.4.1989 to 25.10.1994 amounting to Rs.40,406.24 paise
and also awarded future interest @ 6% from 26.10.1994 till the date of
Regular Second Appeal No. 3898 of 2008 2
realization. Dis-satisfied with the same the plaintiff preferred an appeal,
which was dismissed by the first appellate court below. Hence this regular
second appeal and has sought modification of the judgments and decrees
passed by the Courts below.
I have heard learned counsel for the appellant and have gone
through the paper-book carefully.
It emerges out from the record that the defendant-respondent
did not produce the accounts of the firm. It is admitted case of the parties
that on 1.4.1989 the capital of the said firm was Rs.60,453.66 paise. Both
the parties staked their claim on the basis of reports got prepared by them
from their respective witnesses to assess the profit and loss of the firm. As
per report Ex.A7 prepared by AW3 Gurdeep Singh, the amount comes to
Rs. 1.01,75,178-57 paise from 1.4.1989 to 9.10.2004 while as RW1 Pardeep
Goyal, the amount comes to Rs.1,00,859.90 as 25.10.1994 i.e. the date of
dissolution of the firm. The learned Courts below took into account the
report Ex.R1 of RW.1 Pardeep Goyal, the Chartered Accountant, over and
above the report of AW3 Gurdeep Singh, an accounts knowing fellow with
10+2 pass only. The relevant portion of the judgment passed by the learned
appellate Court below while affirming the conclusions of the trial court,
while discarding the report of AW3 Gurdeep Singh, reads as under:-
“12. It is no doubt true that no account books have
been produced or proved on record by the respondent,
but it cannot be termed to be a circumstances to pass the
final decree in terms of report of Gurdeep Singh AW3, in
the event, the same does not inspire confidence. Ex.A1 is
the copy of the statement of account, which has been
submitted along with income tax return for the
assessment year 1989-90 and the same has been proved
by Amarjit Kumar AW1. The capital of the appellant has
been depicted as Rs.60,453.66 therein. The perusal of
the report Ex.A7 of Gurdeep Singh AW3 reveals that the
amount of Rs.60,453.66 has been multiplied to the tune
of Rs.1,01,75,178-57 from 1.4.1989 to 9.10.2004. It is
significant to note that Gurdeep Singh has awarded
Regular Second Appeal No. 3898 of 2008 3interest @ 24% and added profit to the extent of 15%
and thereafter, the amount has been compounded
annually. The exercise carried out by Gurdeep Singh
AW3 does not appear to be sound and convincing. It
does not sound to the logic that the amount of
Rs.60,453.66 can yield profit to the extent of more than
Rs. One Crore in a period of about 15 years. During the
course of cross-examination of Gurdeep Singh AW3, it
has emerged that his basic qualification is only up to 12th
standard.
13. On the contrary, the respondent has sought
the opinion of Pardeep Goyal RW1, who is a qualified
Chartered Accountant and as per his opinion, an amount
of Rs.1,00,859.90 is due payable as balance to the
appellant as on 25.10.1994. The amount has been
worked out by adding interest @12% per annum from
1.4.1989 to the date of dissolution of the firm i.e.
25.10.1994. It may be mentioned here that as per the
terms of the clause of the partnership deed, copy whereof
is Ex.R2, the partners are not entitled to the interest on
their respective capital investment. The learned Lower
Court has also taken note of the aforesaid clause and
has concluded that the interest calculated by Pardeep
Goyal RW1 @ 12% per annum can be termed as profit of
the investment of the balance amount of Rs.60,453.66. In
these circumstances, the outstanding amount has been
correctly worked out by the learned Lower Court and no
inference is called for in the findings recorded by it.”
The above-said observations leave no manner of doubt that the approach of
the Courts below in relying upon the report of RW1, which has been made
the basis of passing of final decree, is either illegal or perverse. Nothing
has been shown to take a contrary view than that of concurrent findings
Regular Second Appeal No. 3898 of 2008 4
recorded by the Courts below. No substantial question of law, which is sine
qua non for admission of appeal is made out. The appeal is wholly without
merits and the same is accordingly dismissed in limine.
(ARVIND KUMAR)
JUDGE
February 2,2009
Jiten