See the documents and the judgement of lower court needs to be perused for this as on what ground court as decided against the plaintiff as from the document on record the oral partnership can be established by rent receipts and the bank accounts so it is very necessary that why the suit failed before the lower court before filing appeal.in high court.
Partnership dispute- suit for Dissolution of Partnership firm and for Renedication of accounts
My Wife (Plaint) and her sister-in-law (Def) started school in oral partnership (unregistered) in 2003 by investing Rs 50,000 and agreed to share profit equally. Defendant acted as Principal/ Corre- spondent of the school and plaintiff as the teacher of the school. In 2009, defendant has clandestinely sent a communication to all the parents of the children intimating that she was running the school along with the plaintiff and she will be running the same on her own in new premises. In this way she has taken away the entire school along with furniture and all assets. Hence, the plaintiff has filed the suit for Dissolution of Partnership firm and for Renedication of accounts unsuccessfully in Trail Court and also in Appellant Court. The plaintiff has examined herself as PW1 and also examined PW2, PW4 & PW5 and submitted the following Ex A1 to A17. Ex: A-1 is a lr Dt 7.4.09 addressed by the defendant to the parents mentioning “I was managing the school along with plaintiff from the ensuing academic year I (Defendent) shall alone will be managing and administering the school. Ex: A-2/3 is the school rent receipt in the name of plaintiff and defendant, the owner of the house who has also examined herself as PW5, said in the court that she has leased her house for running of the school to both Plaintiff and Defendant from 2003 to 2009. Ex: A-4/5 is telephone bills, installed in 2003, in school premises was in the name of Plaintiff. The bills for the same was paid from the school from 2003 to 2009. Ex: A-6 is a lr that the defendant wrote to the Bank on 6.6.09 to close the joint account after she took away the school on 07.04.09 Ex A-1. Ex: A-8 is Statement of Accounts made by the defendant, and sent to plaintiff through staff after taking away the school. The statement shows the total income/expenditure and profit for the year 2009 and also the expenditure incurred on building and interest earned from 2003 to 2009. The balance of profit was divided into two. Along with statement the defendant has sent Ex A-6 A16 & A17 (A16/17 are Two cheques dated 27.05.2009 for Rs 48,391/) issued from the joint account of HDFC bank. Ex A-7,9 and A-10, is a statement of joint bank account in HDFC Bank from where all the receipts and expenditure was incurred are in the names of plaintiff and defendant. The defendant in here cross stated (a) “it is true that as and when we spent exp on building I debited the same form my account”. (b) “In the year 2003 we were collecting school fee from each student” (c)“It is true that the joint account opened only for school purpose and school funds were only there”. Kindly advice how approach further.
Asked 7 years ago in Civil Law
10 Answers
you have to prove oral partnership was entered into by you and sister in law
2) evidence of PW 5 will help in making out a case for partnership
3) EA 2, 3 rent receipts show school was run in joint names
4) other exhibits prove that there was joint bank account opened for running the school
5) you should be entitled to reliefs prayed for in the suit
The following judgments were cited (P-Para) AIR 1956 Hyd page 87 (P) 6, A partnership is not necessarily created by an agreement in writing. It could be by Oral agreement also. 2004(13) SCC 750 Suit for dissolution of partnership which is oral (P5) is not hit by Sec 69 of the partnership act 1932 P 3,5,9 and 10. AIR 1937 Oudh 438, 440 Partnership can be inferred if they continue business and share profits even if there is no express agreement. Air 1981 Calcutta 85 P 21 & 23 “Accounts of the profits of the said firm should be gone into from the date of claim till the date of decree” AIR 2009 Supreme Court 1858 in V.Subrahmanyam Vs Rajesh Raghavender Rao No effect of non registration of a firm for dissolution of firm, P26,27&28. AIR 1959 Orissa 110 (Vol 46, C.31) (1) P9 Non Registration of the firm under partnership Act will not operate bar to maintainability of the suit. AIR 1994 Allahabad 62 Defendant cannot use the property of the firm for his own benefit P 16,17 AIR 1987 SC 1782 The relation of partnership does or does not exist must depend on the real intention P 8,11,19 AIR 1995 Supreme Court 714 Right “to sue” for the dissolution of the firm includes rendition of accounts power to realize the property of the dissolved firm P8,9,10. 1984 (1) HC in between Mumtaz Ahmed and others Vs Naseem Sulthana. Suit by a partner for recovery of his capital investment and profits is maintainable though the partnership is not registered. P 8, 11 AIR 1965 SC page No.202 (1) Para (D) “to the effect of showing the evidence of interested witness cannot be brushed aside when they are the natural witnesses”. AIR 1977 SCC Page 409 “to the effect that an admission is a substantial evidence on the fact admitted which need not be proved by independent witness”. P15,16 LAWS(BOM)-[deleted]/LAWS(BOM)-[deleted] “In regard to fiduciary duties and breach of fiduciary duties”. Para 14,18,23,24,26,30,32,34,36,42,46 Kindly say how strong is case & where we went wrong.
Asked 7 years ago
you have strong case on merits
2) it is not necessary that there be written partnership deed
3) suit filed by you was maintainable for rendition of accounts of the firm
Sir all these judgement are in favour and it is established law that even there can be oral partnership but kindly site on what ground the suit was rejected ans it was not decided in your favour to see what went wrong the order of lower court and appeallant court is required to be seen as on what grounds the court rejected your claim.
How to prove oral partnership already all the documents was submitted, court has not considered the evidence of PW-2,PW-4 & PW-5 and also not taken the citations into accounts. Whether I will be eligible for relief from 2004 to till date when I get the relief from the court if so kindly enclose the relevant citation please.
Asked 7 years ago
You can file appeal against order of trial court if you have not been granted any reliefs
court ought to have considered evidence of plaintiff and citations mentioned by you
If court has no considered relevant document and examination chief of witness on record there is fair chance you succeed in appeal as court has failed to appreciate the facts.
Apart from the aforesaid facts it can be proved through examining witnesses, parents and other staff of school if any.The statement of accounts in which there is sharing of profits is also a proof of the same.
Since you have already preferred an appeal you may ask your advocate to take the hints of the points what you have mentioned here and present a strong argument to convince the appellate court.
Without seeing the lower court judgment which dismissed the suit, no concrete opinion opinion can be rendered.
You have quoted all these citations here, whether have you included the said citations in the arguments before the trial court?
You have already approached appellate court with an appeal.
You can demonstrate the same citations that were already produced before the trial court and insist in your argument about the valid points in the said citations which clearly speaks in your favor.
You may discuss with your advocate on any other relevant topic which were left out during trial proceedings.