AI Structured Summary
Not yet generated for this judgment
Judgment
This revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit filed by the plaintiff/opposite party has prayed for the following reliefs :
a) Decree for declaration that the plaintiff being sleeping partner is entitled to get assets, capital an profits from the said partnership firm "G.G. ENTERPRISE", 71, Dhan Devi Khanna Road, Kolkata -700 054 as given in Schedule "A" below relating the share of 53.5% on and from the date or retirement of partnership and the remaining partners being the defendants shall have liability and responsibility to disburse the same by furnishing accounts with full and final satisfaction.
b) Decree for declaration the defendants shall have no authority to run or carry the similar nature of partnership business under the same license issued by Drug Control Authority of the said in the name of Partnership firm "G.G. ENTERPRISE", at other premises at 86B, Dhan Devi Khanna Road, Kolkata -700054 as given in Schedule "B" below until an unless the final accounts is being furnished.
c) Injunction against the defendants restraining them from carrying or continuing the said partnership business under the name and style "G.G. ENTERPRISE" either in the suit premises No. 71, Dhan Devi Khanna Road, and other place of business within the same locality including the premises No. 86B, Dhan Devi Khanna Road, until and unless the proper accounts of the said partnership business is been furnished or to be disbursed the capital, assets or profit to the plaintiff being a retiring partner.
d) Cost of the suit.
e) Such other relief or reliefs which the plaintiff is entitled in law and equality."
The learned trial Judge by the order impugned has dismissed an application filed by the petitioners under Order 7 Rule 11 of the code of Civil Procedure.
Learned counsel appearing on behalf of the petitioners contends that due to the bar under sub-section (2) of Section 69 of the Indian Partnership Act, 1932 the suit is not maintainable and on the said ground the petitioners prayed before the learned trial Judge that the plaint of the suit be rejected.
Heard Mr. Sourav Bose, learned counsel appearing for the petitioners. Perused the order impugned.
Learned trial Judge in the order under challenge has referred the decision of the Hon'ble Apex Court in the case of Mukund Balkrishna Kulkarni -versus- Kulkarni Powder Metallurgical Industries and another, reported in 2004(13) SCC 750 and has rightly come to a decision relying on the said judgment of the Apex Court that the suit of this nature does not attract the bar of sub-section (2) of Section 69 of the said Act.
On perusal of the plaint and the relief sought for by the plaintiff in the suit, this Court is also of the opinion that the plaintiff has sought for a declaration of his status of a sleeping partner in the partnership firm. In fact, the plaintiff by the present suit is not trying to enforce his right arising from the contract, therefore, the suit cannot come within the mischief of sub-section (2) of Section 69 of the said Act.
In view of the aforesaid, the revisional application being CO 3512 of 2017 is dismissed. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.