JUDGMENT
V.S. Aggarwal, J.
1. Rishi Ram Gupta (hereinafter described as “the Plaintiff”) has filed the present suit for dissolution of partnership and for rendition of accounts and for partition. The facts alleged are that defendant No. 1 is pleaded to be the father of the plaintiff and defendants 2 and 3 are brothers of the plaintiff. Defendant No. 4 is the brother of the father of the plaintiff while defendant No. 5 is the brother-in-law of the plaintiff besides other defendants, who are also the relatives of the plaintiff.
2. It is pleaded that in April 1939, defendant No. 1 and defendant No. 4 were carrying on partnership business under the name and style of M/s. Hari Ram Shri Ram. At that time, the plaintiff, who was also known as Budh Ram, was aged only 5 years. He was admitted to the benefits of the partnership. The plaintiff attained majority in 1954 and became a partner of aforesaid firm. On 10.6.1961 Shri Ram, defendant No. 4, retired from the partnership and the firm continued with plaintiff and defendant No. 1 as the partners till 1973. Each of them were having 50% share in the profits and losses of the partnership firm. With the assets of M/s. Hari Ram Siri Ram, as on 10.6.1961, defendant No. 1 and the plaintiff floated another firm under the name and style of M/s. Hari Ram Gupta & Sons to carry on the business as whole-sale cloth merchants at 555, Katra Ashirfi, Chandni Chowk, Delhi. The firm continued to function till 1973, when it was dissolved without going into and settling the accounts. It is alleged that in 1973, with the funds of Hari Ram Gupta & Sons, another firm under the name of M/s. R.K. Auto Gaskets at Gokhale Market was started with defendant No. 2, defendant No. 5 and defendant No. 7 as its ostensible partners. The capital of the firm was provided from the assets of M/s. Hari Ram Gupta & Sons. Although the plaintiff is not named as partner in this firm, yet it is alleged that since firm was started with the assets of M/s. Hari Ram Gupta & Sons, the plaintiff has 50% share in the profits and losses of the said firm. In 1976 the name of the firm was changed to R.K. Auto Gaskets with the funds and assets of M/s. Hari Ram Gupta & Sons. Another firm M/s. R.K. International was also started in or about the year 1988 with defendants No. 2, 7 and 9 as its ostensible partners. The plaintiff claims that he has 50% shares in the profits and losses of the firm. Some other firms are also stated to have been formed as mentioned in paragraph 7. The plaintiff contends that he does not wish to be a partner in the partnership business of M/s. Hari Ram Siri Ram and other firms. Consequently, he seeks dissolution of the partnership firms besides seeking rendition of accounts. He also seeks partition of the immoveable properties of the partnership firms.
3. I.A.7657/95 has been filed has been filed under Order VII Rule 11 of the Civil Procedure Code seeking rejection of the plaint. It is alleged that as per assertions of the plaint, reference of which has been made in the application, the plaint is liable to be rejected because under Section 40 of the Indian Partnership Act, only a partner can seek dissolution of the firm. Reliance is placed on the fact that the plaintiff in the reply to the application filed under Order XXX Rule 8 has admitted that he was never the partner in any of the firms except firm Hari Ram & Gupta & Sons. Since the plaintiff was not a partner, it is contended that he can not seek dissolution, as per his own contention, and therefore, the plaint is liable to be rejected.
4. The application has been opposed and in the reply filed, it is reiterated that the plaintiff has a partner of M/s. Hari Ram Gupta & Sons and other firms, formed out of the capital and funds of the profits of said firm. It is insisted that the firms referred to in different paragraphs of the plaint, were formed out of the assets, proceeds and funds of Hari Ram Gupta & Sons, of which the plaintiff is a partner to the extent of 50%.
5. While ascertaining if the plaint is to be rejected or not, necessarily, it is the plaint which has to be considered and the court has to determine whether it discloses the causes of action or not, as prescribed under Order VII Rule 11(a) and if from the statement of plaint, it can be taken that the suit is barred by any provision of law.
6. Learned counsel for the defendants has urged that once the firm Hari Ram Gupta & Sons had been dissolved in 1973, the plaintiff seizes to be a partner and he can not, by any stretch of imagination, be taken to be the partner of the other firms nor can he seek rendition of accounts.
7. At the outset, as far as later aspect of the argument is concerned, it can well be mentioned that it is the assertion of the plaintiff that firm M/s. Hari Ram Gupta & Sons was dissolved in 1973 without settling the accounts and that from the assets of the said firm, different other firms, referred to above, have been started. The Supreme Court, in the case of ADDANKI NARAYANAPPA AND ANR. v. BHASKARA KRISHNAPPA (DEAD) AND THEREAFTER HIS HEIRS AND ORS. , , while looking at a similar controversy, referred to Section 14 of the Partnership Act considered as to what would be the effect in such like situations. It was held that his right to obtain such profits, which fell to the share of the plaintiff upon dissolution of the firm, is not extinguished. In other words, if certain other properties even have been purchases from the assets of the partnership, they would remain to be the assets of the partnership. The Supreme Court held:
From a perusal of these provisions it would be abundantly clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in Clause (a) and Sub-clauses (i), (ii) and (iii) of Clause (b) of Section 48.
8. In face of the said pronouncement from the Supreme Court, it must follow that the plaintiff indeed can seek partition and rendition of accounts.
9. Reverting back to the main argument as to whether the plaintiff an seek a dissolution of the other firms, in which he claims a share admitting that certain other persons have been shown as ostensible partners, necessarily it can be said that vide order of this Court dated 3.9.1998 this court directed the plaintiff to file a detailed affidavit as to how he became a partner of Hari Ram Siri Ram and further as to what were the funds of the said firm, which were used for starting the four firms detailed in paragraph 7 of the plaint. The affidavit, as such, has been filed by the plaintiff. He explains in the first instance as to how he was a partner of the firm Hari Ram Siri Ram. He gives details of certain funds which were deposited in Hari Ram Gupta & Sons and reflected in the account but feels shy of alleging and explaining as to which of the funds was used for starting four firms mentioned in para 7 of the plaint. Since an earlier order had been passed, therefore,before considering whether the plaintiff can seek dissolution of those firms, the said part of the order passed by this court must be complied with. The plaintiff should file the necessary affidavit in this regard with four weeks.
10. List it on 11.2.2002.