TaxTMI 
TaxTMI 
1921 (8) TMI 5
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....arter, the Seals during the second quarter, the Sahas during the third quarter and the Rays during the fourth quarter. The partnership of s started in 1306 B.E. for the purpose of importing salt from foreign ports and selling it in Chittagong. The Rays had a firm in Calcutta which ordinarily purchased salt for the joint business, and the purchase money had to be paid by the defendant partners to them at Chittagong, If there was delay in payment on the part of any set of partners, it became liable to the set which made the payment on its behalf. There was a bock kept called the order-book in which the price for sale of salt as fixed by the partners from time to time was recorded, Each set of partners could sell as much salt as it liked cut of the joint stock, but was liable for the excess taken by it over that due for its share to the get or sets of partners who might have taken less than a proportionate share. There used to be a periodical adjustment of accounts generally at the end of each quarter which is described in these proceedings as a Bantan. The term, literally signifies division. The Bantan, it is said, was intended to remove inequalities in the appropriation of salt by t....
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....eemed to have been dissolved at the end of 1320 B. E., each partner was entitled to have separate dealings in salt and could not be tailed upon to account for the profits of such transactions; fourthly, that if such separate dealings in salt were improper, the defendants could at most get compensation to the extent of Rs. 5,000; fifthly, that the Court should not, at this stage, have gone into the question of the custody of the account-books, and that, in any event, the investigation has been inadequate and the conclusion incorrect. 2. Before we deal with these grounds, it is necessary to refer to a preliminary objection to the competency of the appeal. In the plaint, although the suit was described as a suit by a firm against three other firms--each of them partners in the salt business--the names of the members of the firms were disclosed. During the pendency of the appeal, Brajendra Kumar Ray, one of the members of the plaintiff firm, died on the 20th Jane 1920. On the 3rd January 1921, the three sons of the deceased applied as his legal representatives to be added as parties appellants. This application, made under Order XXX, Rule 4(2)(a), Civil Procedure Code, was opposed o....
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....ee in Raj Chunder Sen v. Ganga Das Seal 31 C. 487 : 1 A.L.J. 145 : 8 C.W.N. 442 : 31 I.A. 71 : 14 M.L.J. 147 : 8 Sar. P.C.J. 623, a suit to take the accounts and wind up the affairs of a partnership cannot proceed in the absence of one of the partners, or, in the event of his death pendente lite, in the absence of his legal representative. It may also be conceded that when an appeal has abated in part in respect of the heirs of a deceased appellant, the result of such abatement may be to make the appeal an imperfectly constituted appeal which the Court cannot proceed to hear; this depends upon the nature and scope of the suit; Kali Dayal v. Nagendra Nath 54 Ind. Cas. 822: 240. W.N. 44 : 30 C.L.J. 217, In the present case, however, no such difficulty arises, as all the parties interested are now before the Court either as appellants or as respondents. Apart from this, there is considerable force in the contention of the appellants that the addition of the representatives of the deceased was unnecessary, inasmuch as the suit as framed was a suit of the description contemplated by Order XXX of the Code of Civil Procedure. Such a suit may be brought by or against a firm in the firm-nam....
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.... of salt had been taken by each set of partners and how much money would have to be contributed by one set to another on account of inequality in the appropriation, On the other hand, the Nikash at the end of the year would show the outstanding balance from customers of the joint business and expenditure of all descriptions incurred during the year. Opportunity would, no doubt, be taken on the occasion of this yearly settlement of accounts, to rectify the errors, if any, in the Bantan, which would, prima facie, form the basis of the annual account. But there has apparently been some misapprehension as to the true relation of a Bantan to a Nikash. One extreme view is that the Bantan may be entirely ignored and the Nikash taken irrespective thereof. The opposite extreme view is that the Bantan is absolutely conclusive and that its accuracy cannot be challenged at the time of the Nikash. Neither of these views can clearly be supported. The Bantan was regularly taken in the presence of the parties or the representatives, though its scope was limited. Consequently, if its accuracy is challenged at the time of the Nikash, the burden lies upon the party who assails it to establish the all....
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....o the other partners. It is not necessary to consider whether notice to the defendant firms would have been sufficient or whether notice to each individual member of each of the firms concerned was essential. No written notice was in fact given, and the oral evidence of verbal intimation to some of the persons interested is of the vaguest description. On the other hand, the evidence discloses that the persons who intended to retire from the business did in fact continue to take salt from the business and to associate otherwise with its work. In such circumstances, a presumption may legitimately be drawn in favour of the continuance of the partnership; Parsons v. Hayward (1862) 4 DeG F. & J. 474 : 135 R.R. 219 : 31 L.J. Ch. 666 : 8 Jur. (N.S.) 924 : 6 L.T. (N.S.) 623 : 10 W.R. 654 : 45 E.R. 1267, King v. Chuck (1853) 17 Beav. 325 : 99 R.R. 169 : 51 E.R. 1059. There is, in our opinion no reasonable doubt as to the soundness of the conclusion of the Subordinate Judge that there was no effective dissolution of the firm at the end of 1320 B.E. and that it was continued till the end of 1321 B.E. In such a contingency, it was not only open to the Court but incumbent upon it, to direct the....
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....solve the parties in default from the obligation to account for all the profits made in such business. 6. As regards the fifth ground, it has been urged that the Court should not, at the preliminary stage, have gone into the question of the custody of the account books, that the investigation has, at any rate, been inadequate and that the conclusion is not supported by the evidence. We are of opinion that this contention should prevail. Session 257 of the Indian Contract Act makes it obligatory upon each partner to render true accounts and full information of all things affecting the partnership to any partner or his legal representatives. The occasion in this case will, however, arise after the preliminary decree is made At that stage each partner should be served with the notice contemplated by Section 66 of the Indian Evidence Act to produce such accounts and papers as may be in his custody if he omits to produce the books and the books are proved to be at the time in his custody or under his control, the presumption recognised in Illustration (g) to Section 114 of the Indian Evidence Act may be applied, namely, that evidence which could be and is not produced has been withhe....