Mockett, J.:—(C.R.P No. 100 of 1943): In this civil revision petition, the point which arises for consideration is whether a suit claiming dissolution of partnership with a claim for an account can be treated as a suit for solely an account so as to bring it within the provisions of S. 7(iv)(f) of the Court Fees Act. The important circumstance put before us is that this is not a written partnership containing terms a breach of which may give rise to a cause of action but is a partnership at will. A suit in which the parties' relations inter se are governed by a written contract containing terms the breach of which entitles a party to dissolution of partnership may well be in a different category as the ordering of an account may depend on considerations of fact, and the real question may well be whether the plaintiff is entitled to a decree for dissolution. There is ample authority both from English authorities and from the Judicial Committee that a partnership at will is dissolved by a notice from one member of the partnership to another, and in England a writ and in India a plaint has been held to constitute a notice of dissolution and the dissolution dates from the date of the document. Authority for this may be found in Shepherd v. Allan (1). That was a case of partnership at will and a suit was filed by one of the partners praying for a dissolution and account. It appears from the report, that a question was raised whether there was still an existing partnership and from what period it ought to be held to be dissolved. The Master of the Rolls, Sir John Romilly, held that there was a partnership at will and that it was dissolved as from the 15th of August 1863, the date of filing the bill. That case was followed in the Chancery Division in 1896. Only a brief report is available and it is to be found in Unsworth v. Jordan (2). There North J. held that under similar circumstances a partnership was dissolved as from the date of the service of the writ and not from the date of its issue. That of course means that on receipt of information from one partner by the other the partnership became dissolved. The Judicial Committee in an appeal cited to us from Sathappa Chetti v. Subramaniam Chetti (3) held that in the absence of evidence that there had been any previous dissolution, a partnership between the plaintiff and the defendant was dissolved by what their Lordships described as writ and plaint claiming dissolution. No doubt the expression “writ” applies to its Indian counter part “summons.” The position therefore is that whatever the pleading in this case may be, the partnership between the parties was dissolved on the date of the plaint and there was nothing for the Court to do in that respect except to declare that all the relief which the Court was called upon to give was solely to order the taking of an account. For the purposes of court-fee, this is a suit to which S. 7(iv)(f) of the Court Fees Act is applicable. The Bench of the Bombay High Court in Bhogilal v. Popatbhai (4) took the view that a plaintiff who sought the relief contemplated by S. 265 of the Contract Act should pay the ad valorem stamp fee required by a suit for an account under S. 7, Cl. (iv)(f) of the Court fees Act of 1870. S. 265 of the Contract Act which was the part of the Act dealing with partnership provides that where a partner is entitled to claim a dissolution of partnership, or where a partnership has terminated, the Court may, in the absence of any contract to the contrary, wind up the business of the partnership, provide for the payment of its debts and distribute the surplus according to the shares of the partners respectively. The action in that case as described by the learned District Judge contained a claim for an account and a winding up of partnership. It was argued before us, that the proper provision of the Act applicable to such a case was Art. 17-B of the Second Schedule which deals with claims incapable of valuation. Such a contention is wholly wrong. A claim for partnership may not be capable of precise valuation, but that it is not capable of valuation at all is entirely unarguable. The result will be that as this is a matter in which the plaintiff was entitled to place his own valuation upon his claim under S. 7, Cl. (iv)(f), the order of the learned District Munsif was right. Incidentally I may add that I consider that no question under S. 115 of the Civil Procedure Code arises.
The petitioner also objected to the territorial jurisdiction of the Court. It is enough with regard to this to say that the learned District Munsif fully considered the evidence relating to this and came to the conclusion that the facts gave him jurisdiction to try the case.
C.R.P Nos. 308 and 309 of 1943—In these petitions the learned District Munsif has made interlocutory orders intended to preserve the partnership property. The petitioner states that those orders are a hardship on him. They are clearly orders which the Munsif had jurisdiction to make. Interlocutory orders in partnership matters for the preservation of the assets of the partner ultimately entitled thereto are not infrequent and are frequently proper. There is no reason for interfering with the orders made in these two civil revision petitions. The result will be that all the civil revision petitions which have been argued will be dismissed with costs—one set.
Krishnaswami Ayyangar, J.:—I concur but would like to add a word or two on the question of court-fee involved in the first of these civil revision petitions. It has to be remembered that there are two classes of partnership actions in which a plaintiff may ask the Court to take the accounts of the partnership. First we have the case where a dissolution has already taken place on the date of the suit and the intervention of the Court is not necessary for bringing about the dissolution. Such a dissolution would occur on the happening of any of the conditions mentioned in Ss. 42 and 43 of the Indian Partnership Act, 1932. The second class of cases is where the intervention of the Court is necessary in order to dissolve a firm while it is continuing. The conditions on the happening of which a partner can ask the Court to dissolve a firm are enumerated in S. 44 of the Act. The case before us falls under the first category, namely, cases where the Court is not called upon to dissolve a firm in existence. In such a case it seems to me that the prayer for accounts falls clearly within S. 7, Cl. (iv)(f). This is enough to dispose of the revision petition. I want to make it clear that I reserve my opinion on the question as to whether even a suit in which the accounts are to be taken after the Court dissolves the firm is not also one which falls within S. 7, Cl. (iv)(f).
N.R.R
Comments