Bikramjit Nagrath & Ors. vs M/S. Ralya Ram Mela Ram & Ors.
1999 Latest Caselaw 729 Del

ORDER

Manmohan Sarin, J.

1. The plaintiffs have moved this application under Order XXXIX, Rule VII read with Section 151, CPC, seeking a direction for defendant Nos. 1 (a) and (b) to deposit the sum of Rs. 38,620.04 paise (Rupees thirtyeight lakhs fifty thousand six hundred twenty and paise four only) together with interest @ 24% per annum being the compensation received from the Land Acquisition Collector in respect of part of the land of the partnership firm which was acquired. The application is moved in the pending suit for dissolution of the partnership firm and rendition of accounts.

2. Before dealing with the application on merits, the admitted facts may be noted:

(i) Defendant No.1 partnership firm M/s. Ralya Ram Mela Ram came into existence in April, 1924. Perpetual lease was granted to the firm in respect of Plot No. 2, Tolstoy Marg, New Delhi, admeasuring 5665.06 sq.mtrs., on which a double storeyed structure was raised. The partnership firm was registered in September, 1933 and it was last reconstituted on 30.9.1978. The three plaintiffs namely, Sh. Bikramjit Nagrath, Sh. Vimal K. Nagrath and Sh. Vijay Nagrath together have 25% share while defendant No.1 (a) Sh. Jai Dev Nagrath and defendant No.1 (b) Sh. Ajay Nagrath son of Sh. Jaidev Nagrath both together have 25% share. The remaining 50% share is held between defendant No. 1(c) Smt. Savitri Nagrath, defendant No.1(d) Sh. Ranjit Nagrath and defendant No.1 (e) Smt. Rashmi Nagrath.

(ii) The present suit for dissolution of the partnership firm and rendition of accounts was filed in October, 1994. The defendants are said to be in actual physical possession of the Plot No. 2, Tolstoy Marg with the super structure thereon. The defendant No.1 partnership firm is stated not to have carried on any business since September, 1978. The property in question i.e. 2, Tolstoy Marg, New Delhi and the super structure thereon is claimed to be the only asset of the firm.

3. The plaintiff filed the present application in February, 1996, claiming that only recently after the filing of the suit in October, 1994, it has come to their knowledge that an area admeasuring 184.06 sq. mtrs. out of the plot at 2, Tolstoy Marg, New Delhi was acquired for the public purposes of the road widening. The Land Acquisition Collector had determined the compensation, therefore, at Rs. 38,620.04 paise. This amount, it is claimed, was received vide two cheques by Sh. J.D. Nagrath, defendant No.1(a) and Smt. Savitri Nagrath, defendant No.1 (c) in the year 1992. The claim in brief of the plaintiffs is that the compensation amount was an asset of the firm, which the defendants have misappropriated and used for their personal use and benefit. The defendants were not entitled to do so. In these circumstances, a direction is sought against the defendants for deposit of the said amount together with interest in Court for the protection of the property of the partnership firm, pending dissolution and rendition of accounts. Replies to the said application have been filed both by defendant Nos. 1 (a) & (b) as well as by defendant Nos. 1(c) to (e).

4. At this stage, it would also be pertinent to notice a significant fact, which has a bearing on the disposal of the present application. Defendant No.1(c) Smt. Savitri Nagrath on 17.9.1992 sent three cheques to defendant No. 1(a) Jai Devi Nagrath for forwarding them to the plaintiff after signing the same. These cheques were in the amounts of Rs. 85,000/, Rs. 1,70,000/ and Rs. 1,70,000/, in all totalling to Rs. 4,25,000/.These were intended for Bikramjit Nagrath, Vimal K. Nagrath and Vijay K. Nagrath respectively. This amount was purported to the remitted to the plaintiffs by the defendants at that time after taking into account the capital gains and other taxes, expenses etc. leviable on the amount of compensation received. It is not disputed that defendant No.1 (a) encashed all the three cheques and did not forward them or remit the amount to the plaintiff.

5. It is in the background of the aforesaid factual position that I now proceed to discuss the objections raised by the defendants against any direction for deposit of the amount in Court by the defendants.

6 (i) Both the learned Counsel for the defendants have urged that no direction for deposit of any amount is called for. Firstly, it is argued by Mr. Ravi Gupta, Counsel for the defendant Nos. 1(a)(b), that the amount of compensation had been received by the defendants well before filing of the suit. The plaintiffs did not make any claim with regard to the same in the suit filed much thereafter. Any direction for deposit of any amount to be paid to the plaintiffs can only be made after this Court goes through the process of rendition of accounts and determination of the amount due. It is urged that this Court would first pass a preliminary degree for rendition of accounts, directing rendering of accounts of income and expenses in respect of the property. It is only after such rendition of accounts and ascertainment can be known as to whether the plaintiffs are to take or give any amount to the defendants. Accordingly, no order, at this stage, can be passed for deposit of any amount. No interim relief can be given in respect of a matter, which is not the subject matter of the suit.

These objections, to my mind, are without any merit. It is not in dispute that the property in question belonged to the partnership firm and upon part of its land being acquired, compensation was paid. The compensation that was received, as is seen from the record, was received by defendant Nos. 1(a) and (c), as managing partners of the firm. The plaintiffs cannot be faulted with if they were not aware of the factum of this acquisition. Rather, it is a case where the defendants have enjoyed the benefit of the amount of compensation without the plaintiffs' partaking into it. The case of plaintiffs, as noticed, is that defendants have utilised the said amount for their personal benefit. Once it stands admitted that the amount of compensation received was on account of an asset of the firm, directions can be given for preservation of the said amount as an asset or property of the firm.

(ii) The defendants have next contended that the plaintiffs have transferred their share in 2, Tolstoy Marg, New Delhi for valuable consideration to one Sh. M.L. Talwar. This fact, it is stated was revealed on the basis of a search conducted by Income Tax Authorities at the premises of Sh. M.L. Talwar, where documents such as, power of attorney, bonds etc. were recovered dealing with the said property. The plaintiffs have denied any such transaction. The plaintiffs further urged that the said Sh. Talwar has till date not come forward to lodge any claim in respect of the property. Accordingly, this objection cannot be raised to defeat a prayer for deposit of the amount in Court in the absence of any tenable evidence of the alleged transfer by the plaintiffs of their rights in the property. Moreover, the plaintiffs are not insisting on disbursement of the amount to them.

7. It is next contended that a collaboration agreement for the property was entered into with M/s. Skipper Construction Co. Pvt. Ltd. and advance of Rs. 15 lacs was received, out of which the plaintiff took Rs. 2,50,000/ and the said sum was paid vide cheques of Rs. 1,00,000/ to Sh. Vimal Nagrath and Rs. 1,50,000/ to Sh. Vijay Nagrath. It is claimed that the plaintiffs because of their financial crisis could not return the amount and agreed to transfer their shares in the suit property in favour of the defendants. There is nothing to prima facie support the contention of the defendants of plaintiff having agreed to transfer their right or interest in the property on receipt of Rs. 2,50,000/ as aforesaid. In any case, such a plea cannot be raised to defeat any direction for protection and preservation of any asset of the firm, pending rendition of accounts and dissolution of the firm.

(iv) It is claimed that plaintiffs have not contributed towards various litigation expenses as well as for unkeep and betterment of the property of the firm. The plaintiffs, it is claimed have never contributed towards the property tax or to share the liabilities. The amounts received by way of compensation have been appropriated towards such expenses. Defendants have given details of the pending litigation. It is claimed that the cost of furnishing Bank guarantee for Rs. 3.00 lakhs was met from the compensation received. The defendants have also filed a summary statement of expenses, giving the estimated expenses of Rs. 46,53,702.00 on the property from October, 1978 to 15th April, 1999. Plaintiffs submit that the same are false and concocted and not supported by any affidavit or documentary proof.

(v) It is not necessary to go into the veracity or genuineness or reasonableness of the alleged expenses at this stage for the purpose of disposal of this application. The admitted position is that a sum of Rs. 38,62,548.04. was received in June, 1992 by the defendants as compensation for the land acquired. Defendants claim to have paid Rs. 11,03,233.00 as Capital Gains Tax and under the Kar Vivad Samadhan Scheme, leaving a balance or Rs. 27,27,167.00. The share of the plaintiffs works out of Rs. 6,86,791.00 as of June, 1992. It may be noted that if the defendants have expended monies towards repairs and maintenance, property tax etc. then the defendants alone have been enjoying the prime property at 2, Tolstoy Marg, New Delhi to the exclusion of the plaintiffs.

(vi) In view of the foregoing discussion and reasons stated while dealing, with the pleas of the defendants, ends of justice would be met by directing the defendants to deposit in Court a sum of Rs. 9,66,000/ as an interim measure, pending disposal of the suit, within four weeks. The amount to deposited to kept in fixed deposit, initially for a period of one year.

Application stands disposed of.