Bombay High Court
Manohar Doulatram Ghansharamani vs Janardhan P. Chaturvedi And 17 Ors on 12 September, 2023
Bench: Shri Arif Doctor
Digitally
2023:BHC-OS:9807-DB
signed by
MULEY
MULEY SHUBHAM
SHUBHAM PRAVINRAO
PRAVINRAO Date:
2023.09.12 1 Appeal-126-2022-J.doc
17:45:11
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.126 OF 2022
IN
SUIT NO.220 OF 2013
WITH
NOTICE OF MOTION NO.504 OF 2013
IN
SUIT NO.220 OF 2013
WITH
NOTICE OF MOTION NO.1542 OF 2018
IN
SUIT NO.220 OF 2013
WITH
NOTICE OF MOTION NO.447 OF 2019
IN
SUIT NO.220 OF 2013
WITH
NOTICE OF MOTION NO.672 OF 2019
IN
SUIT NO.220 OF 2013
1a. Smt. Rekha Manohar Ghansharamani
Aged 74 years, Indian Inhabitant
Res. At Flat No.459, Rishi Dayaram Giddumal
Co-op.Hsg, Soc.Ltd. Navghar Road,
Mulund (East) Mumbai-400081
1b. Smt. Sharadha Manohar Ghansharamani
Aged: 42 years, Indian Inhabitant,
Res. At flat No. 459, Rishi Dayaram Giddumal
Co-op.Hsg, Soc.Ltd. Navghar Road,
Mulund (East) Mumbai-400081 ... Appellants
Vs.
1. Janardhan Prasad Chaturvedi
Aged about 58 years, Indian Inhabitant
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Res. At 703, DiwaniMahal, Gulmohar
Road No.1, JVPDScheme, Vile Parle (W),
Mumbai-400059
2. Usha Dijendra Mitra
3. Maya Bank
4. Bimal Dijendra Mitra
5. Suraj Dijendra Mitra
6. Shama Dijendra Mitra
7. Bharat Dijendra Mitra
8. Milan Dijendra Mitra
9. Vishwanath Dijendra Mitra
10. MukeshDijendra Mitra
11. Anand Dijendra Mitra
12. Pranab Dijendra Mitra
Respondent Nos. 2 to 12 resident of 302,
Ushasadan, Next to Bhavani Nagar,
MarolMaroshi Road,
Andheri (East), Mumbai-400059
13. J.P. Constructions, a partnership firm duly
Registered under the provisions of Partnership Act
Having its registered office at 703, Diwani Mahal,
Gulmohar Road No.1,
JVPD Scheme, Vile Parle (W), Mumbai 400059
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14. Daryani Construction Co.P. Ltd., a company
Registered under the provisions of the Companies Act,
1956 and having its registered office at 521, Commerce
House, 140Nagindas Master Road, Fort, Mumbai 400023
15. Shri Anand Builders Pvt. Ltd
A company registered under the provisions of
Companies Act, 1956 and having its registered office at
Flat No.1, Ground Floor, Mistry Court, Dinshaw Wacha
Road, Mumbai-400020
16. Chandrashekhar Madhav Joglekar Aged 48 years, Occ:
Service res. At 5/B/2 Indian Airlines Colony Kalina,
Santacruz (East) Mumbai-400029
17. Uttam Mulchand Amarnani, aged 44 yrs, Occ:
Business having address at Ground Floor, Mount Blanc,
Carter Road, Jogger park, Bandra (W), Mumbai-400050
18. Roopishwardas Madhrani (deleted)
18a) Manoj Roop Madhrani, aged 45 years,
18b) Lalit Roop Madhrani aged 43 years,
Both having address at A/123, Karachi Citizens CHS,
New Link Road, Andheri (W), Mumbai400053
... Respondents
/Orig. Defendants
Adv. Priyanka Kothari a/w Megha Gupta, Vrinda Sharma i/by
Hedgehog & Fox LLP for Appellants.
Adv. Vivek Walavalkar i/by Ameya Mahajan for Respondent Nos.1
to 12.
Adv. Vivek Walavalkar a/w Amit Shroff and Ashna Shah i/by Amit
Shroff for Respondent No.14.
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CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : 3rd AUGUST, 2023
PRONOUNCED ON : 12th SEPTEMBER, 2023
JUDGMENT :- (PER ARIF S. DOCTOR, J.)
1. The present Appeal impugns an order dated 21st
August, 2019 ("the Impugned Order"), by which, the Learned
Single Judge has allowed three Notices of Motion taken out by
Respondent Nos.1 to 12, Respondent No.14 and Respondent
No.17 respectively under the provisions of Order VII Rule 11 of
the Code of Civil Procedure, 1908 (CPC) for rejecting the Plaint in
the captioned (the said Suit).
2. Before adverting to the rival contentions, it is
necessary to briefly set out the following facts. The Appellants
claim to be the legal heirs and next of kin of one Manohar
Daulataram Ghansharamani ("the Original Plaintiff"). The Original
Plaintiff, one Dijendra C. Mitra ("D. C. Mitra") and Respondent
No.1 were the partners of Respondent No. 13 i.e., J. P.
Constructions (the said firm) by virtue of a Partnership Deed
dated 24th March 1987 (the Partnership Deed). It is not in dispute
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that the said D. C. Mitra passed away on 25 th January, 1988.
Respondent Nos. 2 to 12 are joined as the legal heirs and next of
kin of D. C. Mitra. The Original Plaintiff has also passed away and
the Appellants are the legal heirs and next of kin of the Original
Plaintiff.
3. It is the case of the Original Plaintiff that a piece and
parcel of land admeasuring 100 acres ("the said land") situated
at village Kasarwadawali, Ghod Bunder Road, Taluka and District
Thane, consisting of two portions i.e., one admeasuring
approximately 55 acres and the second admeasuring
approximately 45 acres were the properties of the said firm. It is
essentially the case of the Original Plaintiff that the said land was
wrongfully/illegally sold and disposed off by the following
Agreements for Sale viz.,
i. Agreement for Sale dated 31st July, 1987 entered into
between J. P. Constructions (Respondent No.13) and
Daryani Construction (Respondent No.14) by which
approximately 55 acres of the said land was sold to
Respondent No.14.
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ii. Agreement for Sale dated 14th November, 1988 entered
into between J. P. Chaturvedi (Respondent No.1) and Shri
Anand Builders Pvt. Ltd. (Respondent No.15) by which
approximately 45 acres of the said land was sold to
Respondent No.15.
iii. Agreement for Sale dated 9th May, 1995 entered into
between J. P. Chaturvedi (Respondent No.1) and Uttam
Mulchand Amarnani and Roopishwardas Madhrani
(Respondent Nos.17 and 18) by which approximately 45
acres of the said land was sold to Respondent Nos.17 and
18.
4. The Original Plaintiff filed the said Suit on 12 th
February, 2013 seeking inter alia the following reliefs viz.,
"a. that this Hon'ble Court be pleased to declare that
alleged Agreement for Sale dated 31 July, 1987
executed by the Defendant No.1 and Late Shri.D.C.
Mitra in favour of the Defendant No.14 Company for sale
of the portion of the suit property admeasuring about 55
Acres situated at is bogus, illegal, unlawful and not
binding on the Plaintiff;
b. that this Hon'ble Court be pleased to declare that
alleged Agreement for Sale dated 14 th November, 1988
executed by the Defendant No.1 and Late Shri.D.C.
Mitra in favour of the Defendant No.15 Company for sale
of the portion of the suit property admeasuring about 45
Acres situated at is illegal, unlawful and not binding on
the Plaintiff;
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c. that this Hon'ble Court be pleased to declare that
alleged Agreement for Sale dated 9 th May, 1995
executed by the Defendant No.1 in favour of the
Defendant Nos. 17 & 18 for sale of the portion of the
suit property admeasuring about 45 Acres is illegal,
unlawful and not binding on the Plaintiff;
d. that this Hon'ble Court be pleased to declare that that
the Plaintiff is entitled 1/5th undivided share, right, title
and interest in the suit property more particularly
described in the Schedule annexed hereto being the
Partner of the Defendant No.13 Partnership Firm.
e. that this Hon'ble Court be pleased to declare that the
Defendant No.13 Partnership Firm stood dissolved on or
about 12th February, 2011 when the Defendant Nos.1 to
12 received the Notice issued under Section 43 of the
Indian Partnership Act, 1932 issued on behalf of the
Plaintiff and be pleased to further order and direct the
Defendants to deliver up 1/5th share of the Plaintiff in
the suit property more particularly described in Schedule
annexed to the Plaint by dissolving the Partnership Firm
Defendant No.13;
5. Respondent Nos.1 to 12, 14 and 17 thereafter took out
the following three Notices of Motion being Notice of Motion
No.477 of 2019, Notice of Motion No.1542 of 2018 and Notice of
Motion No.672 of 2019 respectively seeking rejection of the Plaint
under the provisions of Order VII Rule 11 of the Code of Civil
Procedure, 1908 ("CPC"). The Notice of Motion came to be
allowed by the Impugned Order, and it is thus the present Appeal
has been filed.
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6. Ms. Kothari Learned Counsel for the Appellants
submitted that the Learned Single Judge had gravely erred in
allowing the Notices of Motion by concluding that (a) the said
firm stood dissolved on the death of D.C. Mitra i.e. in the year
1988 and (b) that the letters annexed at Exhibit S to the Plaint
indicate that the Original Plaintiff was well aware of the said
Agreements in the year 1996, if not earlier.
7. Ms. Kothari then submitted that the said firm did not
stand dissolved on the death of the late D.C. Mitra as after his
death his heirs i.e., Respondent Nos. 2 to 12 and Defendant No.1
carried on the business of the said firm. Ms. Kothari, while
candidly, admitting that there was no specific averment in the
plaint to this effect, invited our attention to paragraphs 16 and 27
of the Plaint from which she submitted it was implicit that the
business of the said firm was carried on after the demise of D. C.
Mitra. In support of her contention that the death of a partner
would not cause dissolution of a partnership firm where the
business of the said firm was continued by the legal heirs of the
deceased partners, she placed reliance upon the following
judgments;
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(1) Kesrimal Vs. Dalichand1
(2) Chainkaran Sidhakaran Oswal Vs. Radhakisan
Vishwanath Dixit and Ors.2
(3) L. Shiam Lal Vs. Shiam Lal and Anr.3
(4) Vallapareddy Sumitra Reddy and Anr. Vs. Kasireddy
Laxminarayana Reddy and Ors.4
Basis the above, Ms. Kothari submitted that the Original Plaintiff
being under the bonafide belief that the business of the said firm
was carried on after the death of late D.C. Mitra had validly
issued the notice for dissolution of the said firm in the year 2011
and thus the Suit was not barred by limitation.
8. Ms. Kothari then invited our attention to Exhibit S to
the Plaint, being two letters, both dated 1 st May, 1996, one
addressed by the Original Plaintiff to Respondent No.14 and the
other to Respondent No.15. She pointed out from the said letters
that the same did not in any manner establish that the Original
Plaintiff was in the year 1996 aware of the mode of sale. She
submitted that the Original Plaintiff had only in the year 2010
when copies of the said Agreements were made available became
1 1958 SCC OnLine Raj 32
2 1954 SCC Online MP 67
3 1935 SCC OnLine All 5
4 2002 SCC OnLine AP 1015
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aware that the said Agreements were executed by Defendant
No.1 and the late D. C. Mitra and not on behalf of the firm. Basis
this, she submitted that the finding of the Learned Judge in
paragraph 29 of the Impugned Order that "The pleadings vis-à-
vis letters at Exhibit S indicate that the plaintiff was well aware
about the agreements at least in the year 1996 if not earlier " was
patently incorrect. Basis this, she submitted that the Learned
Single Judge had gravely erred by placing reliance upon the
letters dated 1st May, 1996 to conclude that the Appellant was
aware of the said Agreements in the year 1996 if not earlier.
9. Learned counsel then invited our attention to Article
58 and 59 of the Limitation Act, 1963 ("Limitation Act") to submit
that the period of limitation to cancel and/or set aside an
instrument or decree for recession of a contract would be 3 years
from when the right to sue accrues. In the present case, she
submitted that since the Original Plaintiff obtained copies of the
said Agreements for Sale for the first time only in the year 2010,
the right to sue accrued to the Original Plaintiff only in 2010. In
support of her contention that a Suit for declaration could be filed
within three years from the date on which the cause of action
arose/accrued under Article 58 of the Limitation Act, she placed
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reliance upon a judgment of Hon'ble Supreme Court of India in
the case of Daya Singh & Anr. Vs. Gurdev Singh (Dead) by L.Rs.
& Ors.5.
10. Ms. Kothari then submitted that limitation being a
mixed question of fact and law, an opportunity ought to have
been given to the Appellants to establish that the suit was within
limitation by leading evidence in support of the same. She
submitted that the Appellants had been denied this opportunity
by the Impugned Order and thus submitted that the Impugned
Order was bad in law and deserved to be set aside. Therefore, in
the facts of the present case, the Appellants ought to be given an
opportunity to prove the same by leading evidence and not as a
preliminary issue. In support of her contention, she placed
reliance upon the following judgments viz.,
(1) Mongia Realty and Buildwell Private Limited
Vs. Manik Sethi6
(2) Urvashiben and Anr. Vs. Krishnakant
Manuprasad Trivedi7
6 (2022) 11 SCC 572
7 (2019) 13 SCC 372
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(3) Chhotanben and Anr. Vs. Kiritbhai
Jalkrushnabhai Thakkar and Ors.8
11. Basis the above, Ms. Kothari submitted that the
Impugned Order was required to be set aside and the Appellants
ought to be granted an opportunity to establish by leading
evidence that the captioned Suit was not barred by limitation.
12. Per contra, Mr. Walavalkar, learned counsel appearing
on behalf of Respondent Nos.1 to 14 submitted that the
Impugned Order had correctly been passed and there was gross
delay in filing of the Suit.
13. He submitted that the Appellants contention that the
business of the said firm continued after the death of D. C. Mitra
was ex facie untenable. In support of his contention, he invited
our attention to clause 279 of the Partnership Deed and pointed
8 (2018) 6 SCC 422
9 27. In the event of insolvency or death of any of partners, this partnership shall be
dissolved and the accounts of the partnership shall be made up and the remaining partners
and the heirs and legal representatives of the deceased partner shall be entitled to such
amount coming to their share in the capital, and the profit , if any and such amount shall
be paid by the remaining partner to the legal heir and representatives of the deceased
partners. If in the event of the death of the party of the Second Part if so desired by the
other coparceners or members of the said J. P. CONSTRUCTIONS H.U.F. such coparceners
or members of the said J. P. CHATURVEDI H. U.F. shall be taken as partners of this firm
upon the same term and the said J. P. CHATURVEDI H.UF. as partner with the said rights in
favour of such members or coparceners. In the event there are no members or
coparceners of the said J.P.CHATURVEDI H.U.F. then in that event , the heir and the legal
representatives of the said J.P.CHATURVEDI H.U.F. shall be entitled to the right created
under this clause in their favour.
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out that the said clause in clear terms provided that on the death
of any of the partners, the said partnership would stand dissolved
and accounts of the partnership were to be made up as more
particularly provided for therein. He then pointed out that the
Appellant had in the Plaint itself made reference to the fact that
the Appellant was aware that the said D. C. Mitra had passed
away on 25th January, 1988. Basis this he submitted that on the
death of D. C. Mitra i.e., on 25th January 1988 the said firm stood
dissolved.
14. Mr. Walavalkar then without prejudice to the aforesaid
submission pointed out that it was not even the case in the Plaint
that the business of the firm was continued after the death of D.
C. Mitra as was now being canvased across the bar. He therefore
submitted that the question of the Original Plaintiff dissolving the
firm by way of notice under Section 43 of the Partnership Act in
the facts of the present case therefore did not arise. He
submitted that the present partnership could never be construed
as a partnership at will since the Partnership Deed specifically
provided for the duration of the partnership as also for the
determination thereof.
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15. Mr. Walavalkar then invited our attention to Article 5 of
the Limitation Act and pointed out therefrom that a Suit, for
accounts or share of profits of dissolved the partnership firm was
required to be brought within three years from the date of
dissolution of the said firm. In the present case, he submitted
that the present suit was filed almost 25 years after the death of
D. C. Mitra and was thus grossly barred by limitation. He then
placed reliance upon the judgment of the Hon'ble Supreme Court
in the case of Commissioner of Income Tax, Central-I, Bombay
Vs. Empire Estate, Bombay10 to submit that when there is no
provision in the Partnership Deed for continuance of a
partnership, then the said firm would stand dissolved on the
death of one of the partners as per the provisions of Section 42
of the Partnership Act. He submitted that given that in the facts
of the present case clause 27 of the Partnership Deed made
specific provision for the duration/dissolution of the firm, the
partnership was not one which was a partnership at will and
hence the said partnership could never be construed as a
partnership at will and hence Section 7 of the Partnership Act
would be wholly inapplicable.
10 (1996) 2 SCC 345
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16. Mr. Walavalkar then submitted that the Appellants
contention that they were not aware of the said Agreements was
ex facie untenable. He submitted that (a) the letters dated 1st
May, 1996 made implicitly clear that the Original Plaintiff was
aware of the said Agreements since the Original Plaintiff had
sought his share of consideration from the sale of the suit
property (b) had neither disputed nor denied the sale and (c) had
subsequently filed a criminal complaint based on cheating and
forgery in the year 1996. He therefore submitted that the
Appellants could not be heard to say that they first became
aware of the said Agreements in the year 2010. He invited our
attention to the Impugned Order and pointed out that the
Learned Single Judge had therefore correctly held as follows, viz.,
"29. The pleadings vis-à-vis letters letters at Exhibit S
indicate that the plaintiff was well aware about the
agreements at least in the year 1996 if not earlier. The
plaintiff was therefore required to seek declaration as
regards these agreements within a period of three years
from the date of knowledge of the agreements if not from
the date of execution. The suit filed after a period of 17
years from the date of knowledge of execution of the
agreements is ex facie barred by the law of limitation."
Basis the above, he submitted that the contention of the
Appellant was wholly devoid of merit. He submitted therefore
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that the order had been correctly passed and the Appeal was
thus required to be dismissed.
17. We have heard learned counsel for the parties as also
perused the Plaint and annexures thereto as also the various
judgments, upon which, reliance was placed and after a careful
consideration of the same, find that the present Appeal must
necessarily be dismissed for the following reasons;
i. The Appellants' contention that the partnership was one
which continued after the death of D. C. Mitra is an ex facie
untenable contention. Clause 27 of the said Partnership
Deed to which there was no dispute expressly provides that
the said firm would stand dissolved on the death of any of
the partners. Hence, it is clear that as per the very
Partnership Deed relied upon by the Original Plaintiff, the
said firm stood dissolved on the death of the D. C. Mitra i.e.
on 25th January, 1988.
ii. The contention that the business of the said firm was
continued after the death of D. C. Mitra and hence the
partnership was continued is both factually and legally
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untenable one. We say factually because there is absolutely
no case pleaded in the Plaint to this effect and legally even
assuming the business of the firm was continued by the
heirs of D. C. Mitra and Defendant No.1 the same would
constitute a fresh partnership and not override the specific
terms of the partnership Agreements as also the provisions
of law i.e. Section 42 of the Partnership Act.
iii. Crucially, in the facts of the present case it is important to
note that the option of continuing the said partnership firm
on the death of D. C. Mitra was given to only the heirs of D.
C. Mitra. Therefore, reliance by the learned counsel for the
Appellants upon Kesrimal (supra), Chainkaran Sidhakaran
Oswal (supra), L. Shiam Lal (supra) and Vallapareddy
Sumitra Reddy and Anr. (supra) would be of no assistance
to the Appellants.
iv. Also, the contention of the Appellants that it was only in the
year 2010 that the Original Plaintiff for the first time
received copies of the said Agreements for Sale from which
the Original Plaintiff became aware of the mode of sale is
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also equally untenable. Firstly, though it was argued
extensively that it was only in the year 2010 that the
Original Plaintiff became aware of the 'mode of sale', we
find no such specific case pleaded in the Plaint. Secondly, a
perusal of the letter dated 1st May, 1996 addressed to
Respondent No.15 specifically makes clear that the Original
Plaintiff was aware that Respondent No.1 had claimed
himself to be proprietor of Respondent No.13. Such
contention could never have been taken if the Original
Plaintiff did not have a copy of and/or was not aware of the
said Agreements in the year 1996, if not earlier. Thus, it is
not open to the Appellants to now contend that the Original
Plaintiff was not aware or did not have a copy of the said
Agreements prior to 1996.
v. Also, we must note that the letters dated 1 st May, 1996,
specifically state that the Original Plaintiff would adopt legal
proceedings in the event Respondent Nos.14 and 15 did not
give the Original Plaintiff his share in the sale proceeds
from the suit land. However, despite this the Original
Plaintiff admittedly, did not take any legal
proceedings/action for recovery of his share of the sale
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proceeds assuming he had such share but only filed a
complaint inter alia for cheating and forgery etc. There is
absolutely no reason given whatsoever as to why the
Original Plaintiff did not institute a Suit for recovery of his
share from the sale of the approximately 55 acres of land
pursuant to what had been stated in the said letter dated 1 st
May, 1996. Hence, we find the Learned Single Judge is
absolutely correct in observing in paragraph No.29 of the
Impugned Order that the Original Plaintiff was aware about
the said Agreements at least in the year 1996 if not earlier
and therefore the judgments in the case of Mongia Realty
and Buildwell Private Limited (supra), Urvashiben and Anr.
(supra) and Chhotanben and Anr. (supra) are of no
assistance to the Appellants.
vi. In addition to the above, in the present case it is crucial to
set out the case pleaded in the Plaint as to when according
to the Original Plaintiff the cause of action arose. A plain
reading of paragraph 41 of the Plaint sets out that
according to the Original Plaintiff the cause of action arose
on multiple dates. The dates according to the Original
Plaintiff when the cause of action arose commenced in 1987
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and continued upto 2011. The Original Plaintiff having
accepted that the cause of action arose in the year 1987
has failed to even remotely plead as to how the said cause
of action was a continuous one. Crucially, the Original
Plaintiff has in paragraph 41 also specifically pleaded that
the cause of action arose on 31st July, 1987 and 14th
November, 1988 i.e. dates of execution of two of the three
Agreements of which now cancellation has been sought.
Hence, on the Original Plaintiff's own showing and a plain
reading of paragraph 41 of the Plaint the Suit is ex facie
barred by limitation. Paragraph No.41 of the Plaint reads
thus;
"41. The Plaintiff states that the cause of action to
file the present suit firstly arose on 24th March, 1987 when
the Plaintiff was inducted as a Partner of the Defendant No.13
Partnership Firm. The Plaintiff states that the cause of action
thereafter arose on 31st July, 1987 and 14th November, 1988
when the Defendant No.1 and Late D.C.Mitra illegally entered
into Agreement for sale of the suit property in favour of the
Defendant Nos.14 & 15 herein without the consent of the
Plaintiff and by forging the signatures of the Plaintiff over the
said documents. The Plaintiff states that the cause of action
also arose on 27/7/2010 when the Plaintiff was provided the
copies of the various documents including the Agreements
executed by the Defendant No.1 and Late D.C.Mitra for sale
of the suit property in favour of the Defendant Nos.14 & 15
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through the intervention of this Hon'ble Court and thereupon
the Plaintiff came to know about the execution of the said
Agreements in favour of the Defendant Nos. 14 & 15. The
Plaintiff states that the cause of action to file the present Suit
finally arose on or about 12th February, 2011 when the
Defendant Nos. 1 to 12 received the Notice issued under
Section 43 of the Indian Partnership Act, 1932 issued on
behalf of the Plaintiff for dissolution of the Defendant No.12
Firm. The Plaintiff states that thus the present suit does not
suffer from any delay and the same is filed within the
prescribed period of limitation."
From the above, it can be seen that the Original Plaintiff has
himself stated that the cause of action arose on 31 st July,
1987 and 14th November, 1988 i.e. the dates on which the
Agreements for Sale were entered into between J. P.
Constructions (Respondent No.13) and Daryani Construction
(Respondent No.14) and J. P. Chaturvedi (Respondent No.1)
and Shri Anand Builders Pvt. Ltd. (Respondent No.15)
respectively for sale of the said land. Hence, given this
position, we find that the said Suit is wholly barred by
limitation under the provisions of Order VII Rule 11 of CPC.
18. Hence, the Impugned Order is correctly passed. There
is no infirmity in the Impugned Order.
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19. The Appeal is dismissed.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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