Smt. Nirmala Devi And 2 Ors. vs Dilip Kumar Yadav
2018 Latest Caselaw 3490 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved 
 
Court No. - 5
 
Case :- FIRST APPEAL FROM ORDER No. - 1251 of 2014
 
Appellant :- Smt. Nirmala Devi And 2 Ors.
 
Respondent :- Dilip Kumar Yadav
 
Counsel for Appellant :- Dr. S.K. Yadav,Abhay Nitin Singh,Abhishek Misra
 
Counsel for Respondent :- K.D. Tiwari,Anil Tiwari,Sanjay Tiwari,Shashi Nandan
 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Mahboob Ali, J.

1. This First Appeal From Order has been preferred by the appellant-defendants aggrieved by the order dated 12.3.2014 passed by the court of Civil Judge (Senior Division), Gorakhpur in Original Suit No.867 of 2013 whereby the court has made an interim arrangement to run the business in question.

2. Facts of the case in brief are that plaintiff instituted a civil suit bearing no. 867 of 2013, seeking relief of permanent injunction restraining the defendants from interfering, in any manner, in possession of the property detailed in the schedule by "Aa", "Ba", "Sa", "Da" 'Hotel President' and also in possession of property of 'Kings Bar' detailed in Schedule "Ya" of the plaint. He had also prayed that the defendants may not damage the said properties.

3. Plaintiff-respondent's case is that he is son of late Durga Prasad Yadav. Appellant no. 1, Smt. Nirmala Devi, is his mother. Appellant nos. 2 and 3 are his real brothers. Father of the plaintiff, namely, late Durga Prasad Yadav was admittedly owner of the President Hotel. In the year 1988, he had taken a land for 30 years by means of registered lease deed dated 26.11.1988. He built a five storey building thereon and started a hotel in the name and style of 'President Hotel' and a restaurant in the name and style of 'Queen's Restaurant'. Later on, father of the plaintiff took more land on the basis of registered lease and extended his business of hotel and restaurant. It is stated in the plaint that in the year 2004, late Durga Prasad Yadav formed a partnership firm and included the plaintiff and defendant nos. 1 and 2 (appellant nos. 2 and 3) as partners. The said partnership firm came into existence in writing on 29.1.2010. Share of the partners of this firm in profit and loss was-50 per cent to Durga Prasad Yadav, 20 per cent to Kiran Kumar Yadav, 15 per cent to Dilip Kumar Yadav (plaintiff) and 15 per cent to Manoj Kumar Yadav.

4. It is stated that late Durga Prasad Yadav extended his business by establishing a bar in the name and style of 'King's Bar'. Late Durga Prasad Yadav was exclusive owner of the said property. He further purchased landed property in Gangotri Vihar, Civil Lines, Gorakhpur and constructed a house (bearing no. E-81). Father of the plaintiff along with his family used to reside in the said house. Later on, late Durga Prasad Yadav also founded a society known as Durga Welfare Foundation Society, Gorakhpur and established Durga Public School on a purchased building situated at Kusamhi, Gorakhpur.

5. It is stated that dispute between the parties arose after the death of Durga Prasad Yadav on 16.3.2013. The plaintiff claimed that after the death of his father, when he came back to Gorakhpur on 29.7.2013, he found a sealed envelop upon which word 'wasiyat' (will) was written. He did not open the envelop and asked his brothers (defendants) to open the said envelop which contained a will of late Durga Prasad Yadav. They decided to open the said envelop on 1.8.2013 in presence of all the parties. It is stated in the plaint that on the appointed date, i.e., 1.8.2013, the defendants did not turn up. However, in presence of some of the persons, whose names have been mentioned in para 13 of the plaint, the said envelop was opened which contained a will upon which signature of the late Durga Prasad Yadav and witnesses were appearing. When the plaintiff contacted those witnesses, they affirmed that they had put their signature on the said will. According to the said will, his father wished that as long as he would be alive, he will be exclusive owner of the property mentioned in the will and after his death, his legal heirs will get share as per the shares mentioned in the will.

6. It is stated that initially, the defendants agreed to abide by the terms of the will but later on they backed out from the terms mentioned in the will. In the will, shares of the parties have been disclosed, which are- 51% to plaintiff, 20% to defendant no.1, 15% to defendant no. 2 and 14% to defendant no. 3. It is also provided in the will that Hotel President will be exclusively managed by the plaintiff. It is further provided that in the 'King's Bar' share of the plaintiff will be 52 per cent, share of the defendant no. 3 will be 24% and share of the defendant no.2 will be 24%. As per will, 'King's Bar' is to be managed by the plaintiff.

7. It is also averred in the plaint that during the life time of his father, the plaintiff was managing the of 'King's Bar' and he has been still managing 'King's Bar' as per will. Thus, the plaintiff has been managing the affairs of both the hotel and the bar. It is also stated that plaintiff is giving share of profit to all the defendants in terms of the shares allotted to them in the will. It is further stated that cause of action arose when the defendants started causing interference in the day to day affairs of the hotel and the bar.

8. He moved an application for grant of temporary injunction supported by an affidavit (paper no. 7 Ga) restraining the defendant-appellants from interfering in the management of his property and hotel.

9. The trial court, initially, granted interim ex parte injunction on 24.8.2013 but it was modified on 22.11.2013 and the parties were directed to maintain status quo regarding the disputed property till final disposal of the suit.

10. The defendant no.3 put in appearance on 7.9.2013 before the trial court and filed application 35-C raising a preliminary objection regarding the maintainability of the suit on the ground of the existence of arbitration clause in the partnership deed dated 29.1.2010. Later on defendant no. 2 has also filed an application (Paper No. 210-C) pleading that the suit was not maintainable in view of existence of arbitration clause.

11. The said objection pertaining to arbitration has been rejected by the trial court, vide his order dated 6.7.2016 on the ground that the defendants have not complied with the provisions of Section 8 of the Arbitration and Conciliation Act.

12. Aggrieved by the said order, the defendant-appellants filed a Civil Revision No. 322 of 2016, Manoj Kumar Yadav Vs. Dilip Kumar Yadav, which is pending before this Court.

13. Dissatisfied with the aforesaid two interim orders passed by the trial court dated 24.8.2013 and 22.11.2013, the defendant-appellants preferred First Apppeal From Order No. 401 of 2014 before this Court which was disposed of on 13.2.2014 with a direction to the trial court to dispose of the temporary injunction application on the date fixed by this Court.

14. In compliance of the order passed by this Court, the trial court considered the pleadings of both the parties and passed the impugned temporary injunction order dated 12.3.2014 whereby the plaintiff has been allowed to continue to manage the business of the hotel, the restaurant and the bar and the defendants have been directed not to interfere and not to cause obstruction in the possession and management of the business by the plaintiff.

15. We have heard Sri H.R. Mishra, learned Senior Counsel assisted by Sri Abhishek Mishra, learned counsel for the appellants and Sri H.N. Singh, learned Senior Counsel assisted by Sri Anil Tiwari and Sri Sanjay Tiwari, learned counsel for the respondent.

16. Sri H.R. Mishra, learned Senior Counsel for the appellants-defendants submitted that the suit filed by plaintiff-respondent is barred by Section 8 of the Arbitration and Conciliation Act, hence, no injunction could have been granted by the learned Civil Judge. He further submitted that no final relief can be granted by means of an interim order but, in the present case, impugned injunction order dated 12.3.2014 has been passed which amounts to grant of final relief claimed by the plaintiff-respondent in the plaint. No injunction with equi efficacious relief can be obtained by the plaintiff.

17. It is submitted that the clause 13 of the partnership deed provides that the partnership firm shall be managed and supervised by all the partners. Lastly, he urged that the Civil Judge (Senior Division), Gorakhpur was not correct in observing that the plaintiff has claimed injunction and, therefore, the court is to see the case of the plaintiff only. Such approach, according to Sri Mishra, vitiates the entire finding recorded by the trial court. Lastly, it was urged that trial court has erred in directing the plaintiff to deposit only 40% of the profit of the business of the hotel, restaurant and bar on half yearly basis. It is submitted that in the partnership deed dated 29.1.2010, the share of the plaintiff is only 15%. It is submitted that the claim of the plaintiff is based on an unregistered and forged will dated 9.3.2013, His share is said to be enhanced to 51 per cent. The said claim has not been established by the plaintiff but the trial court has accepted his claim on the basis of the unregistered will without any justification. He has placed reliance on the Judgments rendered in Hindustan Petroleum Corpn. Ltd. Vs. Pink City Midway Petroleums, (2003) 6 SCC 503, Union of India and others Vs. Modiluft Ltd., (2003) 6 SCC 65, Burn Standard Co. Ltd. And others Vs. Dinabandhu Majumdar and another, (1995) 4 SCC 172, The State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12, and Scaria Paul Vs. M/s Paracka Industries, Ernakulam District and others, AIR 2011 Kerala 97.

18. Learned counsel for the plaintiff-respondent submits that the application of the defendants under Section 8 of the Arbitration and Conciliation Act has been rejected by the trial court by a reasoned order. Aggrieved by the said order, a civil revision has been filed before this Court, which is pending and no interim order has been passed therein. He further submitted that trial court has not granted the final relief and, by the interim order, the plaintiff has been authorized to run the business and deposit 40 per cent of the profit in the court. The said order has been passed in the interest of business. He has further pointed out that the said arrangement is working smoothly for the last more than three years and no application has been moved by the defendant-appellants regarding any mismanagement by the plaintiff, who is running business in terms of the interim order passed by the trial court. It is further submitted that the trial court has noticed that both the parties are claiming their rights on the basis of rival wills dated 9.3.2013 and 15.3.2013. Since both the wills are unregistered, hence, the trial court has rightly proceeded to decide the temporary injunction application without going into the genuineness of wills claimed by either parties and the same may be subjected to decision on merits while deciding the case.

19. Learned counsel for the plaintiff-respondent further submitted that the finding recorded by the trial court in respect of the prima facie satisfaction, does not suffer from any error. The Trial Court has rightly come to the conclusion that the plaintiff-respondent has right to manage the business as undisputedly, he is having 15 per cent share as per partnership deed dated 29.1.2010. He has further submitted that the plaintiff has filed the evidence to establish that he has been managing affairs of the hotel since the life time of his father. In this regard, he has drawn our attention to the documentary evidence detained by the plaintiff-respondent. He has supported finding of the trial court in respect of the balance of convenience and irreparable loss. In the written submission, it is mentioned that the business of hotel, restaurant and bar is continuously enhancing. As such, learned counsel for the plaintiff-respondent has offered to enhance 40 per cent of profit to the reasonable amount as decided by the Court.

20. We have considered the submission of the learned counsel for the parties and perused the material on record.

21. The plaintiff and defendants are family members. They run hotel and restaurant, namely, M/s Hotel President and Queen's Restaurant. On 29.1.2010, a partnership deed was executed. All the three brothers, i.e., plaintiff- respondent and defendant appellant nos. 2 and 3 are the partners of the said partnership firm. Their shares for profit and loss have been assigned in the deed.

22. From perusal of the conditions of the deed, it emerges that all the partners have been authorised to run business and arbitration clause also exists in the said deed which reads as under:-

"20. Arbiration: That in the event of any dispute between the parties or their legal representatives about the interpretation of this deed or their rights and liabilities there under or any matter whatsoever about termination of the partnership or there after shall be settled by arbitration and the provisions of the Indian Arbitration Act shall be applied in this behalf."

23. On 7.9.2013 an application 35-C was filed by the defendant no. 3 raising a preliminary objection. The trial court has rejected the said application, vide order dated 12.5.2016. The order dated 12.5.2016 was challenged by the defendant by means of Writ Petition No. 6813 of 2016, which is still pending. Further another application filed by the defendant no. 3 raising the preliminary objection with regard to the existence of the arbitration clause also came to be rejected by the trial court, vide order dated 6.7.2016. Against the said order, Civil Revision No. 322 of 2016, Manoj Kumar Yadav Vs. Dilip Kumar Yadav, has been preferred, which is pending before this Court and no interim order has been passed thereon.

24. Since writ petition as well as civil revision is already engaging the attention of this Court, hence, we refrain us from expressing our view on the first submission made by Sri H.R. Mishra. As regards the submission of the learned counsel for the Senior Advocate that the trial court has granted a final relief in the shape of interim order is concerned, we do not find merit in the said submission. The plaintiff has sought following relief:-

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25. The trial court by the impugned order has only made an arrangement to run the affairs of the hotel. On the basis of the evidence on record, the trial court has found that the plaintiff alone was managing the affairs of the hotel. The plaintiff has filed an affidavit of 35 employees/officials of the hotel, restaurant and bar to demonstrate that the plaintiff was exclusively managing the business of the hotel, restaurant and bar and he was paying salary to the employees. The plaintiff has also filed other documentary evidence to establish the said fact. The trial court has also referred several other documentary evidence for running the business of the hotel, restaurant and bar, thus, documents indicate that the plaintiff -respondent was helping his father during his life time.

26. Learned counsel for the appellants has failed to satisfy us that the finding recorded by the trial court in respect of the prima facie case and the balance of convenience, suffers from any illegality or perversity. In this regard, we find that the trial court has discussed the various aspect of the matter in correct perspective. Hence, we are of the view that the finding recorded by the trial court regarding its satisfaction of prima facie case does not call for any interference.

27. Insofar as the submission of Sri Mishra that the trial court is not justified to direct the plaintiff to deposit only 40 per cent of the profit of the business of the hotel, restaurant and bar is concerned, we find that his submission merits acceptance. The claim of the plaintiff for 51 per cent of his share is based on an unregistered will dated 9.3.2013 alleged to be executed by his late father giving his 36 per cent share to him. We are not adjudicating the said issue at this stage, hence, no observation regarding validity of the said will is warranted. Hence, we refrain from expressing any opinion on the same. But, considering the facts and circumstances in its entirety, we are of the view that direction of the trial court in this regard needs to be modified.

28. Sri Anil Tiwari, learned counsel for the respondent has very fairly submitted that the plaintiff-respondent leave it to the discretion of the court to increase the 40 per cent of the profit to a reasonable limit.

29. We are of the opinion that in the facts and circumstances, the ends of justice would be amply met by directing the plaintiff-respondent to deposit 55 per cent of the profit from hotel, the restaurant and the bar in the trial court by way of tender on half yearly basis. The order of the trial court is modified to the said extent. The other condition imposed by the trial court shall continue.

30. In view of the above, the appeal is disposed of to the said extent of modification.

Order Date :- 1.11.2018

Ram Murti