Delhi High Court
Sh. Sanjeev Bhalla vs Mr. Man Mohan Swaroop & Ors. on 26 April, 2019
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26th April, 2019.
+ CS(OS) 22/2019 with IA Nos. 794/2019, 5422/2019 and 5423/2019
SH. SANJEEV BHALLA ..... Plaintiff
Through Mr. Dilpreet Singh, Advocate
(M. No.9810211566)
versus
MR. MAN MOHAN SWAROOP & ORS. ..... Defendants
Through Mr. Asif Ahmed and Mr. Vikhyat
Oberoi, Advocates for D-1 & D-2 (M.
No.9916338183)
Ms. Beenashaw N. Soni, ASC for
DDA/D-3 (M. No. 9810046611)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
IA Nos. 794/2019 (stay), 5422/2019 (u/Order VII Rule 11) and 5423/2019
(u/Order VII Rule 11)
1. The present suit is for declaration, mandatory injunction and partition.
The Plaintiff is the son of Late Sh. Jag Mohan Bhalla and Mrs. Vijay
Kumari Bhalla. Defendant No.2 Sh. Rajiv Bhalla is the brother of the
Plaintiff. Defendant No.1, Mr. Man Mohan Swaroop is the paternal uncle
(Chacha) of the Plaintiff. Mr. Jag Mohan Bhalla passed away on 25th June,
2006 and Mrs. Vijay Kumari Bhalla passed away on 20th December, 1998.
2. The case of the Plaintiff is that the Plaintiff, Defendant No.1 and
Defendant No.2 constitute a single family and accordingly
declaration/partition is sought for the following properties:
i. C-347, Vikas Puri, New Delhi (hereinafter, „Vikas Puri property‟);
ii. Property No. 976, Katra Shafi, Delhi - 110006 (hereinafter, „Katra
Shafi property‟)
iii. First floor without roof rights and one mezzanine floor between the
first floor and second floor, in property bearing no A 53, Krishna
Park, New Delhi 110009 (hereinafter, „Krishna Park property‟).
iv. Property being Plot No. 17, Measuring 500 sq yds. being part of
Khasra no. 162/2, situated in the village of Burari, Delhi
(hereinafter, „Burari property‟).
v. Property being warehousing plot bearing number 303, in block A
of IFC Holambi Kalan, Narela, Phase 1, Delhi (hereinafter,
„Narela property‟)
vi. 300 shares of M/s Glaxo India Ltd.
3. The case of the Plaintiff is that all the above properties were joint
family properties and that he is entitled to his share in the above properties.
The share claimed by the Plaintiff in each of the properties is mentioned in
the prayer clause of the plaint.
4. The suit was listed on 21st January, 2019 on which date, an ad-interim
order was passed directing status quo in respect of title and possession of all
the moveable and immoveable assets. Defendant Nos. 1 and 2 have entered
appearance in the matter. They have both filed their respective written
statements. The Defendants have also filed applications under Order VII
Rule 11 CPC seeking rejection of the plaint.
5. Mr. Asif appearing for Defendant Nos.1 and 2 submits that in so far
as the Narela property is concerned, the same was allotted in the name of
M/s R. S. Traders which was a partnership firm. The said partnership firm is
not a registered firm. The Plaintiff cannot maintain a suit in the capacity of a
partner of the firm as the same is barred by Section 69 of the Partnership
Act. He relies on following judgments:-
Velji Narayan Patel v. Jayanti Lal Patel AIR 2009 Cal 164;
Shreeram Finance Corporation v. Yasin Khan & Ors. (1989) 3 SCC
476;
Govindmal Gianchand v. Kunj Biharilal & Ors. AIR 1954 Bom 364
(Vol. 41, C.N. 104)
6. It is his further submission that the partnership deed placed on record
dated 3rd April, 2002 has an arbitration Clause and in any case in respect of
the assets of partnership firm the present civil suit is not maintainable.
Thirdly, it is submitted by him that the suit is barred by limitation as the first
legal notice was issued in 2010 by the Plaintiff and no action was taken
thereafter. The limitation does not get extended by issuing the second notice
in 2018. Thus, he prays that the suit be rejected in respect of the Narela
property.
7. In so far as the Katra Shafi property is concerned, the Defendants rely
upon an MOU dated 29th March, 2007, wherein the disputes between the
Plaintiff and Defendant no.2 were, in fact, resolved and it was agreed that
the Plaintiff would retain the shop located at 1026, Gali Teliyan Tilak Bazar,
Delhi in exchange of the Katra Shafi property, which was given to
Defendant No.2. He submits that this MOU having been concealed, the
Plaintiff is not entitled to any relief.
8. Insofar as the Krishna Park property is concerned, the submission of
the Defendants is that this property was purchased out of a bank loan and
substantial portion of the bank loan was cleared by Defendant No.2 and
thus, since the Plaintiff had only contributed 21% share in the Krishna Park
property, the share of Plaintiff should only be restricted to 21% , in view of
Section 45 of the Transfer of Property Act.
9. In respect of the Burari property, it is stated that the said property is in
the form of vacant land. He submits that Defendant Nos. 1 and 2 are
agreeable that if the land is identified, the plaintiff would be entitled to 50%
share in the said property.
10. Finally, in respect of the shares of M/s Glaxo India Ltd., the stand of
the Defendants is that 75 shares are owned by the Plaintiff and the
Defendants have no objection if the Plaintiff is held to be the owner of the
75 shares, plus any bonus shares that may have been issued by the company
in respect of the said 75 shares.
11. The Defendants have also challenged the valuation given to the plaint,
in view of the fact that several of the properties are not in the possession of
the Plaintiff.
12. On the other hand, learned counsel for the Plaintiff submits that the
present suit has been filed by the Plaintiff as a legal heir of Mrs. Vijay
Bhalla and not in the capacity of partner of M/s R. S. Traders. It is
submitted that Defendants Nos. 1 and 2 are guilty of concealment of
material facts. At the time of allotment of the Narela property to the firm
M/s R. S. Traders, the Defendant Nos.1 and 2 represented to the DDA that
they are the only partners in the partnership firm, whereas the partnership
deed dated 3rd April, 2002 clearly shows that Plaintiff is one of the partners.
The contention of the counsel for the Plaintiff is that the date of the
allotment of the property by the DDA was 10th July, 2002 and as on that
date, the partnership deed contained all three persons as partners of the firm
M/s R. S. Traders. However, even if it is assumed that the partnership firm
was not registered, the submission of learned counsel for the Plaintiff is that
the mother of the Plaintiff, namely Mr. Vijay Bhalla was a partner in this
firm and the Plaintiff is entitled to a share in the Narela property as one of
the heirs of Mrs. Vijay Bhalla.
13. Insofar as the Vikas Puri property is concerned, the Plaintiff admits
that he is entitled to 25% share in the property. In respect of the Krishna
Park property, the case of the Plaintiff is that he has given monetary
contribution of more than 50%, and hence, the argument of the Defendants
that the Plaintiff is entitled to only 21% share is without any basis.
14. Insofar as the Katra Shafi property is concerned, the execution of
Memorandum of Understanding is not disputed by Ld. counsel for the
Plaintiff. The stand of Plaintiff is that the MOU was not acted upon.
15. After hearing Ld. counsels for the parties, it is clear that in respect of
some of the properties, there is no dispute. Accordingly, insofar as the Vikas
Puri property is concerned, a preliminary decree is passed holding the
Plaintiff's share as being 25% in the said property. The same is not disputed
by the Defendants.
16. Insofar as the Katra Shafi property is concerned, the execution of the
MOU is not in dispute by the Plaintiff. However, an important fact is that
the Plaintiff failed to disclose the said MOU in the plaint. This is a fact
which would disentitle the Plaintiff to any relief for the Katra Shafi property.
The MoU clearly provides as under:
"1) That the shop located at 1026, Gali Teliyan
Tilak Bazar, Delhi-06 will be henceforth owned and
possessed by Mr. Sanjeev Bhalla in exchange of
Godown situated at Katra Shafi Rilak Bazar will be
owned & possessed by Mr. Rajeev Bhalla, wherein,
each of the partners will forgo each other rights in the
properties as stated above."
Thus, the Plaintiff not merely concealed the MoU but also got benefit of
another property in lieu of the Defendant taking Katra Shafi property. All
these facts were concealed in the Plaint. The MOU is a written document,
which is admitted between the parties, the Plaintiff is not entitled to any
relief qua the Katra Shafi property.
17. Insofar as the Burari property is concerned, both parties agree that the
Plaintiff is entitled to 50% share in the said property along with Defendant
No.2, who is also entitled to 50% share in the property. Accordingly, a
preliminary decree is passed in respect of the Burari property holding the
Plaintiff and Defendant No.2, as being 50% owners each in the said
property.
18. Insofar as the shares in M/s Glaxo India Ltd. are concerned,
Defendant No.2 has admitted that the Plaintiff is owner of 75 shares in the
M/s Glaxo India Ltd. and is willing to handover the share certificates and
bonus shares allotted qua the 75 shares to the Plaintiff. Accordingly, a
decree is passed holding the Plaintiff as owner of 25% shares of M/s Glaxo
India Ltd. and any bonus shares issued in respect of the said 75 shares. The
share certificates be handed over by Defendant No.2 to the Plaintiff, within a
period of four weeks.
19. Insofar as the Krishna Nagar property is concerned, the matter would
have to be adjudicated post trial, inasmuch as the contribution of each of the
parties towards the sale consideration of the said property cannot be
adjudicated in an application under Order VII Rule 11 CPC.
20. Coming to the Narela property, a legal issue has been raised in respect
of the registration of the firm. There is no doubt that Section 69 of the
Partnership Act, would be a bar, if the firm is not registered. However, in
the present case there are disputed facts, in respect of which adjudication
would be required, as to the capacity in which the plot was allotted to M/s R.
S. Traders. Whether the Narela plot was allotted to the firm or what would
be the status of the allotment by the DDA requires to be gone into.
Moreover, the Plaintiff and the Defendants admit the execution of the
partnership deed dated 3rd April, 2002. The said partnership deed contains an
Arbitration Clause 18 which reads as under:-
"18. That all matters of differences relating to the
said partnership affairs shall be referred to Arbitration
according and subject to the provisions of the Indian
Arbitration Act, then in force"
21. Despite the above clause being there in the partnership deed, since the
disputes between the parties are not purely in respect of the partnership firm,
but various other assets as well, one of which is being adjudicated now in
the present suit, this court deems it appropriate to frame preliminary issues
in respect of the Narela property as under:-
1. Whether the claim in respect of the Narela property is barred
by limitation? OPD
2. Whether the Narela property, being a property allotted to an
unregistered partnership firm, the suit is not maintainable?
OPD
22. As far as DDA is concerned, DDA has placed photocopies of its
original file related to Narela property. A copy of the said record be
transmitted to the Ld. Arbitrator along with the present order.
23. Accordingly, all the IAs stand disposed of.
CS(OS) 22/2019
24. List the matter before the Joint Registrar for marking of exhibits on 8th
July, 2019 and before the Court on 13th August, 2019 for hearing of the
preliminary issues. The date already fixed i.e. 8th May, 2019, before the
Joint Registrar stands cancelled.
25. The suit in respect of the Narela property and the Krishna Park
property shall continue in terms of the above order passed. Insofar as the
remaining properties are concerned the status quo is made absolute, subject
to the preliminary decree which has been passed, except in respect of the
Katra Shafi property in respect of which the suit is rejected.
PRATHIBA M. SINGH
JUDGE
APRIL 26, 2019
b
(corrected and released on 3rd May, 2019)
