The plaintiff in O.S. No.28 of 1979 of Subordinate Judge's Court, Kozhikode, is the appellant herein. The suit was filed for the dissolution of the partnership of the plaintiff with the then first defendant and for rendition of accounts. The matter was hotly contested and ultimately, the court below passed a preliminary judgment and decree on 17.6.1981, thereby declaring that the partnership business carried on by the plaintiff and defendant from 21.6.1969, as dissolved on 6.4.1978 in view of the notice dated 4.4.1978. The relief for rendition of accounts was also granted and the defendant was directed to produce the account books before the court below and, further ordered that half of the properties and assets of the firm, as is accounted in the said accounts, shall be directed to be paid to the plaintiff. 2. The matter was taken up in appeal before this court as A.S. No.388 of 1982. This court confirmed the preliminary judgment and decree passed by the court below, thereby dismissing the appeal.
3. The plaintiff filed I.A. No.4733 of 1981 for passing the final decree in the matter. The court below again directed the defendant to produce the accounts and also appointed a commission for settling the accounts. The commissioner appointed, has reported before the court below that no such mill, which was the subject matter of the suit, was seen functioning there and no accounts were made available to him and therefore he could not peruse the accounts. It was pointed out by the defendant before the court below that the accounts were sent to the Sales Tax department. On such submission and on filing I.A.No.375 of 1996, the concerned Sales Tax authority was directed to produce the accounts. The Sales Tax officer reported that those records were of 30 years old and it could not be possible for them to trace out any of them. The court below has chosen to dismiss the final decree application through the impugned order.
4. Heard the learned counsel for the appellant, Shri.T. Vathsalan and the learned counsel for the respondents, Shri.C.P. Mohammed Niaz.
5. The learned counsel for the appellant has pointed out that earlier, this court had passed an order on 20.12.2004 which runs as follows:
“Adv.Shri.C.P.Mohammed Nias takes notice for the respondent. The respondent shall file an affidavit showing cause as to why having regard to the facts of this case, there shall not be an assessment of the reasonable profits based on tentative valuation which may emanate out of the pleadings and materials on records. Such affidavit shall be filed within a period of 45 days.”
6. In spite of such a specific direction to file such an affidavit within 45 days from 20.12.2004, such an affidavit has not been filed so far. The fact remains that the plaintiff is the ultimate loser, as he had invested an amount of `8,750/- way back in 1969 and he could not get even a rupee as profit. Even the amount invested by him has not been returned so far. When a preliminary decree was passed in favour of the plaintiff to get the accounts renditioned and by entitling him to get the half share of the profits and assets, he should not be left without any remedy, solely on the attitude from the part of the defendant and the respondents herein, in not producing the accounts for verification. As observed by this court in order dated 20.12.2004, the reasonable profit calculation, based on tentative valuation, has to be made in this case.
7. Unfortunately, the plaint on perusal, does not give any glimpse with regard to the profits that was being derived in the business. At the same time, it has come out that from 1969 to 1978 during the existence of partnership, the plaintiff was not getting any amount by way of profit from the business. Ext.A2 is the admitted document, which is a letter issued by the defendant on 15.7.1976 to the plaintiff, in which it has been stated that after the year 1974, till 30.6.1976 the net profit was `2,208.78. Apart from that admission, no other documents are available for calculation of profits from the business. If there was any assertion in the plaint with regard to any amount as profit, that could have been accepted by this court, as adverse inference has been drawn against the defendant. From Ext.A2, it is evident that for one and half years the profit was `2,208.78. Therefore, the same has to be taken as profit for 1 and half years, which means, the plaintiff is entitled to get `1,100/- for 1 and half years. Altogether the partnership business existed for nine years and therefore, the amount of profit for such a period can be calculated as `19,800/-, out of which the plaintiff is entitled to an amount of `9,900/-. The fact remains that the amount was unnecessarily and illegally detained by the defendant. Therefore, on a rough calculation, the profits due to the plaintiff till the dissolution of the partnership can be taken as `15,000/-, over and above, the amount of `8,750/- invested by him. Therefore, the plaintiff is entitled to get an amount of `23,750/- as on 6.4.1978.
8. Matters being so, being a business transaction, which is commercial in nature, this court is of the view that the plaintiff is entitled to get interest at the rate of 12% per annum on the said amount from 6.4.1978 onwards. It seems that the court below has directed in such a preliminary decree that the costs of the suit shall be borne by the joint concern. It is not workable at present as the entire assets were taken away by the defendant and nothing has been given to the plaintiff. Therefore, in modification of the said direction, it is found that the entire costs shall be borne by the defendant.
In the result, this appeal is allowed and the impugned order passed by the court below stands set aside. A final decree has to be drawn up thereby entitling the plaintiff to realise an amount of `23,750/- with interest at the rate of 12% per annum from 6.4.1978 till the date of realisation from defendant and all his assets. The respondents herein can resist the execution of the decree only if it is proved that no assets of the firm, or any of the movable or immovable property of the defendant, have not come into their possession. Presently, the plaintiff has to pay the required court fee for drawing the final decree and the same can be charged as against the respondents.
Sd/ B.KEMAL PASHA, JUDGE dl In the decreetal portion of the judgment dated 27.6.2014 in A.S. 936/1997 the words 'A final decree has to be drawn up' occurring in the 2nd sentence of last paragraph (page 7, lines 2 & 3) are corrected and substituted as 'A final decree is passed' and the words 'pay the required court fee' occurring in the last sentence of last paragraph (page 7) are corrected and substituted as 'produce the required Non-judicial Stamp Papers', vide order dated 12.11.2014 in I.A.2472/2014 in AS.936/1997.
Sd/- Registrar (Judicial)