Anant Gupta vs Punjab National Bank
1997 Latest Caselaw 215 Del

JUDGMENT

M.K. Sharma, J.

(1) This order shall dispose of I.A. No. 7883/1996, the application filed by the plaintiff under Order 39, Rules I and 2, Cpc, seeking for an injunction directing the defendant No. 1 to deposit the amount of Rs. 19 lacs with interest accrued thereon till date from the account of late Amar Nath Gupta to the Huf Account No. 4381 under the name and style of "Amar Nath Gupta & Sons HUF" or the 'Capital Gains Account' of the Huf in the defendant No. 1 Bank and also to restrain the defendant No. 1 by way of an ex parte order from transferring the amount of Rs. 19 lacs with interest accured thereon on till date to any legal representative, their servants, heirs and assigns or any other person.

(2) The plaintiff is stated to be a member of Hindu undivided family known as 'Amar Nath Gupta & Sons HUF'. The defendants No. 2,3 and 4 are also stated to be coparceners of the aforesaid Hindu Undivided Family whereas, the defendants Nos. 5,6,7 and 8 are the married sisters of the defendant No. 2. who is stated to be present Karta of the HUF. It is stated that the aforesaid Huf among other properties also owned property bearing No. A-44, Mohan Industrial Area, Mathura Road, New Delhi, in which the then Karta of the Huf Col. Amar Nath Gupta owned " undivided share which was purchased out of Huf funds. Late Amar Nath Gupta sold the aforesaid property for an amount of Rs. 75,66,665 .00 . Payment for the aforesaid sale was made in two instalments, that is, advance payment amounting Rs. 19 lacs and the balance amount of the sale consideration amounting to Rs. 55,15,332 .00 . The cheque amounting to Rs. 19 lacs was deposited in the name of late Amar Nath Gupta and thereafter an Fdr for the said amount was also made by late Amar Nath Gupta in his own name. The balance amount of the sale consideration amounting to Rs. 55,15,332.00 was deposited in the personal account of late Amar Nath Gupta and out of the said amount, an amount of Rs. 50 lacs was transferred to the Huf account existing in the same Bank on 23.9.1995. Rs. 4 lacs thereof was invested by Amar Nath Gupta personally and Rs. 19 lacs remained in the Fdr as the same had not matured.

(3) It is stated that the intention of late Amar Nath Gupta, who was the then Karta of the Huf was to invest the said Huf fund in a profitable manner after maturity of the Fdr which was scheduled to mature on 21.11.1995. Unfortunately, however, Amar Nath Gupta passed away on 11.11.1995 before maturity of the aforesaid Fdr and in view of his death, the amount received against the said Fdr could not be transferred to the account of the Huf like the earlier amount of Rs. 50 lacs which was transferred to the Huf account by Amar Nath Gupta himself from his personal account. Accordingly, the plaintiff approached the defendant No. 1 to transfer said Rs. 19 lacs which got matured against the Fdr account on 21.II.1995 to the Huf account or to the Capital Gains Account, as the same is the property of the HUF.

(4) Since the Bank refused to transfer the said Rs. 19 lacs to the Huf account, the present suit has been instituted by the plaintiff seeking for a permanent injunction restraining all the legal representatives, servants, heirs and assigns from dealing with the amount of said Rs. 19 lacs and interest accrued thereon lying in the account of late Amar Nath Gupta in the defendant No. 1 Bank and to pass a mandatory injunction directing the defendant No. 1 Bank not to transfer the said amount from the personal account of late Amar Nath Gupta to any of his legal representatives. In the present suit, the plaintiff also prayed for an ad interim temporary injunction directing the Bank to deposit the said amount of Rs. 19 lacs with interest accrued thereon till date from the account of late Amar Nath Gupta to the Huf account or in the Capital Gains Account as stated hereinabove.

(5) On service of summons on the defendants, the defendant No. 1 contested the suit by filing a written statement, contending inter alia, that the aforesaid amount of Rs. 19 lacs was deposited in the current account by deceased Amar Nath Gupta opened in his individual name on 20.1.1978 and, therefore, the said amount belonged to deceased Amar Nath Gupta in his individual capacity. It is further stated that the said account where Rs. 19 lacs was deposited, which is the subject matter of the present suit, was being operated by Amar Nath Gupta from time-to- time and that he deposited the aforesaid sum of Rs. 19 lacs in his account through cheques on 19.8.1985. The deceased further made a request on 21.8.1995 for making the fixed deposit in his name for 46 days in the sum of Rs. 19,01,000.00 which amount was debited to his account on the said date and the Fixed Deposit Receipt in the name of Amar Nath Gupta for a period of 46 days in his individual name was prepared. It is stated that the aforesaid account was all along being operated by deceased Amar Nath Gupta in his individual capacity and the current account was also in the name of Amar Nath Gupta in his individual capacity and the Fdr was also got prepared by the deceased in his own name.

(6) It is further stated that the death of a person, the succession opens and the debts and securities of the deceased can be claimed only by the legal heirs of the deceased under the provisions of Hind u Succession Act by obtaining the Succession Certificate under the provisions of Indian Succession Act in the absence of any Will of the deceased. It is stated that the amount cannot be paid or given to any other person or transferred to the account of any corporation or firm or to the account of other separate legal entity and, therefore, the same could be released only in favour of the successors-in-interest of the deceased on production of a valid Succession Certificate. The defendant No. 1 has also stated that the suit itself is not maintainable in view of the fact that the plaintiff in the present suit has not sought for a declaration to the effect that the amount which stands in the account of deceased Amar Nath Gupta in his individual capacity actually belonged to the Hindu Undivided Family known as Amar Nath Gupta & Sons HUF.

(7) The defendant Nos. 2 to 4 who are stated to be coparceners of the Huf have filed their separate written statement contending, inter alia, that the defendant No. 2 as Karta in order to decrease the tax liabilities of the Huf took a loan on behalf of the Huf for a sum of Rs. 6,10,475.00 which was deposited in the Capital Gains Tax Account of HUF. This was done in order to decrease the tax liability on the amount of Rs. 19 lacs plus interest which could not be deposited in the Capital Gains Tax Account before 31st of August, 1996. In the said written statement, the defendant No. 2 has prayed for an order directing the defendant No. 1 to transfer the amount of Rs. 19 lacs wi th accrued interest lying in Hie account of Fdr of late Col. Amar Nath GuptaintotheCapitalGainsTaxAccountofHUFamountingtoRs.l2,89,525.00 after deducting an amount of Rs. 6,10,475.00 which was deposited in the Huf account in the Bank.

(8) The defendant Nos. 5,6 and 8 have also filed their written statement stating that they adopt the written statement filed by the defendant No. 7. The defendant No. 7has filed a written statement, contending, inter alia, that the aforesaid amount of Rs. 19 lacs belong to the Huf and is the property of the HUF. lt was further stated that if the said amount is not transferred to the Huf account, then the legal representatives of the late A.iriar Nath Gupta, would be bound to pay capital gains on the said amount of Rs. 19 lacs plus interest accrued thereon as the property would then be liable to be taxed under the head of the 'Private Property' of late Amar Nath Gupta to which it does not belong. The said defendant agreed with the plaintiff that an order is required to be passed directing the Bank to transfer the amount of Rs. 19 lacs plus interest accrued thereon to the Capital Gains Tax Account of the Huf or to the Huf account.

(9) I have heard the learned Counsel appearing for the plaintiff as also the Counsel appearing for defendant No. 1 and the remaining defendants.

(10) The reason assigned by the defendant No. 1 for its inability to transfer the aforesaid amount deposited with the defendant No. 1 in an Fdr as stated in the written statement has been noticed be me. There is no denial of the fact that the aforesaid amount o Rs. 19 lacs was deposited by late Amar Nath Gupta in a current account opened in his individual name on 19.8.1995 and that on 21.8.1995, he got an amount of Rs. 19,01,000.00 debited from his account for making a fixed deposit in his name for 46 days and that before be could take any steps for receiving the amount on the Fdr after maturity, he died on 11.11.1995.

(11) It is stated by the Counsel for the plaintiff that all the legal heirs of deceased Amar Nath Gupta are on record and none of them has any objection and have in fact in the present suit sought for transfer of the said amount to the Huf account or to the Capital Gains Tax Account opened in the name of the HUF. Whether all the legal heirs are on record or not is a matter to be decided in trial and after evidence is led on that aspect.

(12) It is no doubt true that since the aforesaid amount was deposited in the personal account of late Amar Nath Gupta, on his death the succession opens and the debts and securities of the deceased could be claimed only by the legal heirs of the deceased under the provisions of Hindu Succession Act by obtaining a Succession Certificate in the absence of any Will of the deceased. In the plaint no relief has been sought for claiming a declaration that the aforesaid amount is the asset of the Huf and belongs to it. The suit has been filed by a coparcener of the Huf for a permanent injunction directing the defendant No. 1 to transfer the amount of Huf account and also for restraining the said defendant from transferring the amount to any legal representative of late Amar Nath Gupta. The suit, therefore, has been framed by the plaintiff as a suit for injunction and not as a suit for declaration.

(13) Defendant No. 2, who is stated to be Karta of the Huf, has stated in his written statement that the said amount should be transferred to the Capital Gains Account opened by the Huf in the defendant No. 1 Bank. The aforesaid account was opened by the defendant No 1 in the name of the Huf after expiry of Amar Nath Gupta. The specific stand of the Bank is that the amount in question namely. Rs. 19 lacs could not be transferred to the said account according to the regulation and rules of the Bank. The benefit in a Capital Gains Account is that one can avail of income tax exemption on a long term capital gains, if the amount of capital gains is deposited with the Bank on or before the due date of filing a return of income, with the intention to purchase a new asset in 2 years or construct a house in 3 years after the date of transfer or sale of immovable property. It thus appears that even case of deposit of the amount in the capital gains account, it must be established and proved that the amount belongs to Huf and not to late Amar Nath Gupta in his individual capacity. Therefore, evidence has to be necessarily led on behalf of the parties to the suit to prove the said fact. Wealth Tax returns for the years 1980-81 and 1993-94 relied upon by the Counsel for the plaintiff in support of her claim that the land belongs to the Huf are apparently against the revenue records in which the land stood in the name of late Amar Nath Gupta and not HUF. That is the reason why a stand has been taken in the plaint that the land was purchased out of Huf fund. These are necessarily facts to be proved in the trial of the suit.

(14) It is also to be noted that out of the amount of Rs. 55 lacs received by late Amar Nath Gupta as the balance consideration, an amount of Rs. 50 lacs was transferred to Huf account and the balance Rs. 5 lacs were retained by him in his individual account. Aforesaid Rs. 19 lacs was received by him as advance money which was deposited in personal account of Amar Nath Gupta, with which subsequently Fdr account was opened again in his personal name. The intention for doing the same as pleaded in the plaint is again a matter to be proved by leading evidence on it.

(15) Another important aspect is that in case temporary injunction as sought for is granted, the same would amount to granting the final relief prayed in the suit. In case of a grant of injunction and transfer of the amount to the Huf account, nothing would be left to be decided in the suit. In that event, the plaintiff would get the relief without there being any declaration that the amount in question belongs to the Huf and not to late Amar Nath Gupta in his personal capacity.

(>16) Besides injunction as sought for if allowed at this stage would also amount to granting a mandatory injunction at the interlocutory stage ordering change of account in the Bank which would be beyond the status quo as on the date of the institution of the suit. lam not inclined to issue a mandate of that nature at this stage.

(17) Taking into consideration all the aforesaid factors, in my considered opinion, the plaintiff is not entitled to any temporary injunction and the application stands accordingly dismissed.

(18) However, in view of the facts and circumstances of the case, I consider it necessary to order for expeditious trial of the suit. Since the pleadings in respect of the suit are complete, let the matter be placed before the Joint Registrar for admission/denial of the documents on 7.3.1997 and before the Court on 17.3.1997 for framing of issues.