In the instant case, the principal contention of the plaintiff is that the partnership was a partnership at will, which was dissolved by notice of dissolution under Section 43 of the partnership Act. Whereas the defendants have claimed that, the partnership was dissolved on the death of Dijendra Mitra, one of the partners of the partnership firm. It may be noted that Section 43 of the Partnership Act provides a mode of dissolution of partnership at will. This Section stipulates that a Partnership at will can be dissolved by any partner by giving notice in writing to all the other partners of his intentions to dissolve the firm. Section 7 of the Partnership Act defines 'partnership at will' as: "Where no provision is made by contract between the partners for the duration of their partnership, or for the determination of their partnership, the partnership is 'partnership at will'". Thus a partnership can be regarded as a partnership at will only when (1) there is no provision in the contract between the partners for the duration of their partnership and (2) there is no provision in the contract for the determination of that partnership. If either of these two conditions exists, the partnership would not be a partnership at will.
The partnership Deed which contains a provision for duration of the partnership or for the determination of the partnership cannot be a partnership at will. As a corollary thereof, the partnership that is not a partnership at will cannot be legally terminated by a notice under section 43 of the Partnership Act. Consequently, sending of notice dated 7.2.2011 seeking dissolution of partnership is of no consequence.
23. From the terms of the Partnership Deeds, it is evident that the partnership was a specific partnership under Section 8 of the Partnership Act. In fact, contingencies under which such firm is dissolved are stipulated in Section 42 of the Partnership Act, which reads thus:
"42. Dissolution on the happening of certain contingencies-Subject to contract between the partners a firm is dissolved-
(a) if constituted for a fixed term, by the expiry of that term;
(b) if constituted to carry out one or more adventures or undertakings, by the completion thereof;
(c) by the death of a partner;
IN THE HIGH COURT OF BOMBAY
Suit No. 220 of 2013
Decided On: 21.08.2019
Manohar Daulatram Ghansharamani Vs. Janardhan Prasad Chaturvedi and Ors.
Hon'ble Judges/Coram:
Anuja Prabhudessai, J.
Citation: AIR 2019 Bom 283,2020(1) MHLJ 458
