BANARSI DAS versus SETH KANSHI RAM & OTHERS

BANARSI DAS versus SETH KANSHI RAM & OTHERS

The plea of limitation could not be determined purely as a question of law because the date of dissolution and whether proper notice was given were questions of fact requiring investigation; the High Court erred in treating limitation as a pure question of law and in deciding it without giving parties the opportunity to amend pleadings and address the issue. Therefore, the decision of the High Court was set aside and that of the trial court was restored.

Parties
Plaintiff: Kundanlal; Defendant: Banarsi Das; Defendant: Kanshi Ram; Defendant: Munnalal; Defendant: Devi Chand; Defendant (deceased): Sheo Prasad; Advocate for Parties (see Procedural Section): Rameshwar Nath; Advocate for Parties (see Procedural Section): S. N. Andley; Advocate for Parties (see Procedural Section): P. L. Vohra; Advocate for Respondent No. 3 (in C.a. No. 94/60): Harbans Singh; Advocate for Multiple Respondents: J. P. Agarwal
Jurisdiction
India
Judgment Date
17 December 1962
Procedural Posture
Civil Appeals / Supreme Court Appeals From Allahabad High Court Judgment and Order Dated March 15, 1956 in First Appeals Nos. 172, 364, and 379 of 1954
Outcome
Appeals allowed; decision of the High Court set aside; decree of the trial court restored; no order as to costs.
Legal Topics
Dissolution of Partnership, Limitation Period for Partnership Dissolution and Accounts, Application of Limitation Act Section 3, Order 20 Rule 15 Code of Civil Procedure, Partnership Act Section 43
Civil Law Partnership Law Limitation Law Dissolution of Partnership Limitation Period for Partnership Dissolution and Accounts Application of Limitation Act Section 3 Order 20 Rule 15 Code of Civil Procedure Partnership Act Section 43

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Kundanlal

Plaintiff

Banarsi Das

Defendant

Kanshi Ram

Defendant

Munnalal

Defendant

Devi Chand

Defendant

Sheo Prasad

Defendant (deceased)

Rameshwar Nath

Advocate for Parties (see Procedural Section)

S. N. Andley

Advocate for Parties (see Procedural Section)

P. L. Vohra

Advocate for Parties (see Procedural Section)

Harbans Singh

Advocate for Respondent No. 3 (in C.a. No. 94/60)

J. P. Agarwal

Advocate for Multiple Respondents

Procedural Posture

Civil Appeals / Supreme Court Appeals From Allahabad High Court Judgment and Order Dated March 15, 1956 in First Appeals Nos. 172, 364, and 379 of 1954

Legal Issues

  1. 1 Whether the suit for dissolution and accounts of partnership was barred by limitation
  2. 2 Whether the institution of a suit for dissolution amounts to notice under s.43 of the Indian Partnership Act, 1932
  3. 3 Whether plea of limitation can be raised for the first time before the appellate court, particularly by a non-contesting party

Ratio Decidendi

The plea of limitation could not be determined purely as a question of law because the date of dissolution and whether proper notice was given were questions of fact requiring investigation; the High Court erred in treating limitation as a pure question of law and in deciding it without giving parties the opportunity to amend pleadings and address the issue. Therefore, the decision of the High Court was set aside and that of the trial court was restored.

Court Disposition

Appeals allowed; decision of the High Court set aside; decree of the trial court restored; no order as to costs.

Orders

  • Decree of the trial court restored declaring the partnership dissolved with effect from May 13, 1944.
  • Appointment of receiver and commissioner for winding up and preparation of accounts confirmed.