Delhi High Court
Manju Singh vs Dharamvir Singh And Anr on 25 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 20th September, 2017
Pronounced on: 25th September, 2017
+ CS(OS) 202/2014, IA No. 7237/2017
MANJU SINGH
..... Plaintiff
Through : Ms.Anu Mehta, Advocate.
versus
DHARAMVIR SINGH AND ANR
..... Defendant
Through : Ms.Amrit Kaur Oberoi, Advocate
for defendant no. 1 and 2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
OA No. 26/2016
1. This Original Appeal is filed against the impugned order dated
19.12.2015 passed in IA. No.22306/2014 by the Joint Registrar
(Judicial). The operative part of said order is as under:-
"Per contra, plaintiff has claimed that besides
dissolution of partnership firm and rendition of
accounts, the original suit is also for recovery
of an amount of Rs.2.50 Crore which has been
claimed against both the defendants including
defendant no.2. Plaintiff has claimed that
defendant no.2 nowhere pointed as to how and
when the loan of Rs.2.25 Lacs taken by him in
the year 2002, was returned and even the
documents relied upon by him does not reflect
the same. It is also the claim of plaintiff that
diversion of money by defendant no.1 to
defendant no.2, without permission and
knowledge of plaintiff, is beyond the scope of
this partnership arrangement. It is further the
case of plaintiff that bank records relied upon
by him shows various unexplained withdrawals
ranging from Rs.1.00 lac to Rs.3.00 lac by
defendant no.1, for which no explanation has
been offered and said withdrawals were never
put into the knowledge of plaintiff and
defendant no.2 being the ultimate beneficiary of
transfer of funds from partnership account, is
the most competent and proper party to throw
light into the affairs of the firm and should
stand test of trial. It is further the case of
plaintiff that the presence of defendant no.2 in
the suit would enable this court to appreciate
as to how defendant no.2 served as beneficiary
and a channel to defendant no.1, to divert funds
of the partnership firm. It is further claimed
that prayer clause at page no.28 & 29 of the
plaint needs presence of defendant no.2 and his
presence shall also be required for proper
calculation of amount due and to be recovered
from both defendants jointly and severally. In
support of her case, she has relied upon a
judgment titled „Vidur Impex & Traders Pvt.
Ltd. & Ors. Vs. Tosh Apartments Pvt. Ltd.‟ and
Ors. (2012) 8 SCC 384.
In the original suit, besides the claim of
other reliefs, plaintiff has claimed recovery of
amount of Rs.2.50 Crore against both the
defendants.
From memo of parties, it is clear that
defendant no.2 is the son of defendant no.1.
Disputed question of facts can only be decided
by means of evidence.
In view of the aforesaid facts on record and
in the facts and circumstances, plaintiff needs
to be given an opportunity to prove her case
against defendant no.2. Defendant no.2
appears to be a necessary and proper party for
just disposal of the case and judgment sought
by defendant no.2 does not help his case and
distinguishable on facts. Hence defendant no.2
cannot be deleted from the array of defendants.
Accordingly, the captioned IA is dismissed and
is accordingly disposed of."
2. It is alleged by the learned counsel for defendant no.1 that he was a
partner with the plaintiff's late husband in a partnership firm namely M/s
Drona Bricks and a bare reading of the entire plaint would reveal the
plaintiff, primarily, has a grievance only against defendant no.1 viz the
partner of M/s Drona Bricks. Further, he alleges the prayers sought are
also substantially against defendant no.1, as an erstwhile partner of M/s
Drona Bricks qua siphoning off the funds of the firm or in giving loan to
his son - defendant No.2, and to such extent the plaintiff has already
sought for the reliefs for rendition of accounts; injunction against
subletting the partnership business; siphoning off the money of the firm;
furnishing details of the accounts of the firm; the dissolution of the
partnership firm and recovery etc. It is alleged by the defendant No.1 that
his son - defendant No.2 is settled in Australia since 2002 and has
nothing to do either with the partnership business M/S Drona Bricks or
with its funds.
3. Though the submission made appear plausible but it is pertinent to
note the defendants no.1 and 2 have admitted in their pleading that
defendant No.1 had given a loan of `2.5 lac to defendant No.2 from the
funds of M/s Drona Bricks though allegedly it was repaid in the year
2009 itself. Admittedly no proof is filed of its repayment. Further the
plaintiff in para 11 and para 17 of her plaint has alleged the defendant
no.1 have been transferring funds illegally from the account of the firm to
his son's account in Australia and whenever the plaintiff insisted to
inspect the accounts of the firm, her access was always denied, not only
by defendant no.1 but also by bank authorities and ultimately the
plaintiff had to move RTI to obtain the bank accounts of the partnership
firm and then she came to know about more than 30 transactions in the
range of `1 lac to `3 lac and other numerous transactions of lesser
amounts having been debited/withdrawn by the defendants from time to
time without furnishing any detail thereof to the plaintiff. There are also
allegations to the effect the defendant no.1 has been transferring huge
amounts of money belonging to the firm to Australia with the aid of his
son, defendant no.2.
4. Thus a bare reading of the plaint may reveal the allegations being
primarily against defendant no.1 and even certain prayers viz rendition of
account, dissolution etc. may lead to such an inference but the allegations
qua siphoning of money by defendant no.1 with the aid of his son -
defendant no.2 coupled with their admission qua an amount of `2.25 lac
being paid to defendant no.2 without any proof of its repayment cannot
be ignored at this stage and need to be looked into further. Thus the view
taken by the learned Joint Registrar wherein he notes the alleged loan
transaction and unexplained withdrawals ranging from `1 lac to `3 lac
and the defendant No.2 being an alleged ultimate beneficiary of transfer
of such amounts coupled with no justifiable explanation by defendants of
such withdrawals or of proof of repayment of loan cannot be ignored.
Hence dehors the final result of this litigation against defendant No.2, the
presence of defendant no.2 during the trial is essential to settle the
controversy in this suit.
5. The appeal thus is dismissed.
6. No order to cost.
CS(OS) 202/2014, IA No. 7237/2017
7. List before the learned Joint Registrar on 28.11.2017, the date
already fixed.
YOGESH KHANNA, J
SEPTEMEBER 25, 2017
Renu/Rs
