## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR**
**TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942**
## **FAO.NO.85 OF 2020**
**AGAINST THE ORDER DATED 10.08.2020 IN I.A.NO.2/2020 IN O.S. NO.43/2020 OF SUB COURT, MUVATTUPUZHA**
## **APPELLANT/RESPONDENT/DEFENDANT:**
**RAJU @ PAUL PETER, AGED 57 YEARS, S/O PATHROSE, RESIDING AT THURUTHEL HOUSE, PERUMBADAVOM KARA, ELANJI VILLAGE, MUVATTUPUZHA, PIN-686665.**
**BY ADV. SRI.C.DILIP**
## **RESPONDENT/PETITIONER/ PLAINTIFF:**
**K.V. PAULOSE, S/O VARKEY, AGED 62 YEARS, RESIDING AT KOODUTHOTTIYIL HOUSE, ELANJI KARA, ELANJI VILLAGE, MUVATTUPUZHA TALUK, PIN-686665.**
**THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28-10-2020, THE COURT ON 03-11-2020 DELIVERED THE FOLLOWING:**
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## Dated this the 3[rd] day of November,2020
## J U D G M E N T
The impugned order in I.A.No.2/2020 on the file of sub court, Muvattupuzha finalising the order of attachment before judgment in O.S.No.43/2020, is challenged by the aggrieved sole defendant.
2. Though respondent/plaintiff was served, he did not appear and contest the appeal.
3. I heard the learned counsel for the appellant and perused the records made available before me.
4. The order of attachment before judgment was sought under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908(for short, 'the CPC') by the respondent in the suit filed by him for realisation of an amount of Rs.35,00,000/- from the appellant on the strength of an agreement dated 11.03.2020 alleging that the appellant after having settled his partnership liabilities with the respondent, agreed to pay the aforesaid amount in three instalments which were to fall due on 30.05.2020, 30.07.2020 and 30.09.2020.
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5. The parties along with another person had mutually agreed to cultivate pineapple in a large extent of 35 Acres of land taken on lease from the third party. The profit and loss sharing ratio was also agreed upon between them. After one of them left the joint cultivation undertaken, the respondent went ahead with the cultivation for sometime continuing the partnership arrangement with the appellant. But no sooner, respondent also expressed his disinterest in continuing the joint venture and decided to quit the partnership. Accordingly, the accounts between parties were settled for an amount of Rs.35,00,000/- and as per the aforesaid karar dated 11.03.2020, the amount was agreed to be paid in accordance with the payment schedule mentioned above. The amount was, however, not paid till date and therefore, the respondent filed the suit in the month of July,2020, immediately after the default of payment of first instalment. Along with the suit, I.A.No.2/2020 was also filed for an order of attachment before judgment alleging that appellant was taking hasty steps for alienating his property
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with a view to defeat the prospective decree that may be passed in favour of the respondent.
6. The appellant filed counter denying the liability for payment of suit amount, though he admitted execution of the karar and the terms therein. According to him, the terms of karar did not create any legal right in favour of the respondent and the respondent's share of investment in the joint cultivation was only Rs.24,13,675/- He, however, agreed to pay the aforesaid Rs.35,00,000/- speculating that the cultivation would bring about good turn out and profit. But contrary to the expectation and also due to the intervention of COVID-19 pandemic, the cultivation fell in great loss. His contention is that in view of the loss in cultivation, the accounts are to be settled afresh and the mutual rights and liabilities to be redetermined and in the absence of such redetermination, the respondent cannot sue for the plaint amount and seek a decree. In short, his contention is that the respondent has no fair chance of getting a decree in his favour. It is also submitted that he
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has no intention to alienate the property and the apprehension expressed by the respondent is unfounded.
7. The court below after hearing the parties upheld that the respondent has a prima facie case and was, therefore, entitled to final order of attachment before judgment. It also held that the apprehension expressed as to alienation of property is well founded.
8. So far as apprehension as to alienation expressed by the respondent is concerned, I am fully satisfied with the finding of the court below that appellant has intention to transfer his property. The affidavit in support of I.A.No.2/2020 clearly discloses the source of information received by the respondent to the effect that appellant was taking hasty steps for transferring his property. There is no reason to disbelieve the statement made by the respondent in this respect.
9. The finding as to the disputed right of the respondent to recover plaint amount from respondent is seriously assailed by the learned
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counsel for the appellant. It is well settled that unless the plaintiff in a suit can establish that there is reasonable likelihood of decree being obtained in his favour, an order of attachment before judgment under Order XXXVIII Rule 5 of the CPC cannot be passed by the court as held in Raman Tech. & Process Engg. Co. and Another v. Solanki Traders [2008 KHC 4380].
10. The suit filed by the respondent is for realisation of partnership debt allegedly incurred by the appellant under the karar dated 11.03.2020. The terms of the karar are, therefore, very important for the purpose of deciding the relief sought in I.A.No.2/2020. Neither execution nor terms of the karar is in dispute between parties. The karar shows that when the respondent expressed his disinterest to continue the joint cultivation undertaken, the appellant, in settlement of mutual rights and claims between parties, agreed to pay a sum of Rs.35,00,000/- in three instalments, as already mentioned. The karar also provided that on receipt of the amount, the respondent shall relinquish all his legal rights in respect of the
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joint venture.
11. The contention of the learned counsel for the appellant is that since the right of the respondent to continue the partnership arrangement was reserved with him under the karar as the necessary legal consequence of non payment of the amount, the right to claim the amount arises only upon dissolution of the partnership arrangement and not before.
12. The question which is material for consideration is whether after the date of karar, the partnership arrangement continued between parties. Under law, if a partner after settling the accounts instead of putting an end to the relationship chooses to continue his status and participate in the activities of the Firm, his right to claim share in the profit could be determined only on fresh accounts being taken at the time of actual dissolution of the Firm.
13. Going by the pleadings of the parties, there is no indication as to the term for which the partnership arrangement was agreed upon to continue. Looking at the nature of contentions
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raised by the respondent in the plaint, it appears that in spite of incorporation of clause in the karar allowing him to continue the arrangement till the payment of partnership debt as agreed, there is nothing at all to show that he subsequently participated in the joint venture and continued the partnership arrangement after the date of karar. This is clear from his contention in the suit that though he tried to contact the appellant demanding discharge of payment of the amount specified in the karar, he always kept away playing hide and seek. There is further allegation that he was not allowed to participate in the yield as well as profits made in the cultivation. This is not denied by the appellant. Even the appellant has no case that respondent continued partnership arrangement after the karar day. His only contention is that his liability was only to the extent an amount of Rs.24,13,675/- invested by the respondent and agreement to pay Rs.35,00,000/was made by him tentatively on the assumption that the agricultural venture would have brought about substantial amount of income and profit.
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14. Even though the respondent has not stated in so many words in the plaint that the partnership arrangement came to an end, the conduct of both parties taken as a whole would indicate that the appellant was managing the cultivations single handedly to the exclusion of the respondent after the karar date and has refused to share the income gained as alleged. This being the position, need for taking fresh accounts and settling the rights and liabilities of the parties does not arise. In short, a suit for settlement of accounts was not necessary in the facts and circumstances of the case. A prima facie can, therefore, be said to be made by the respondent. The finding of the court below is, therefore, not worth interfering.
In the result, appeal fails and it is dismissed. It is made clear that this judgment will not, however, preclude the appellant from canvassing objection as to maintainability of the suit on the ground that the appropriate form of remedy available to the respondent was to sue for settlement of accounts. If objection as to
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maintainability is so taken by the appellant, the court below will decide the issue in accordance with law untrammelled by any of the observations made in this judgment.
All pending interlocutory applications will stand closed.
Sd/-
## T.V.ANILKUMAR,JUDGE
DST
//True copy/ P.A.To Judge
