M/S. Ranchhoddas Zinabhai ... vs Shri Paragbhai Navinchandra ...
2021 Latest Caselaw 2294 Guj

       C/FA/2749/2018                                       IA ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 1 of 2020
                             In
                R/FIRST APPEAL NO. 2749 of 2018

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M/S. RANCHHODDAS ZINABHAI DHOLAKIA MAHASUGANDHI SNUFF WORKS THROUGH JAYESHBHAI N. DHOLAKIA Versus SHRI PARAGBHAI NAVINCHANDRA DHOLAKIA ========================================================== Appearance:

MR ANAND B GOGIA for the PETITIONER(s) No. MR DHAVAL M BAROT for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE B.N. KARIA

Date : 12/02/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard Mr. Anand B. Gogia, learned advocate for the applicants and Mr. Dhaval M. Barot, learned advocate for the opponents.

2. The applicants ­ original defendants have preferred this application and have, inter­ alia, prayed as under:­

"b. Lordship be pleased to pass appropriate orders, modifying Condition No.2 in Paragraph 7 of order dated July 26, 2018 (26.07.2018) in First Appeal no.2749 of 2018, permitting the applicant(s) to let the immovable properties as described in Paragraph 8 (Ground

C/FA/2749/2018 IA ORDER

Floor 1800 sq. ft. & First Floor 900 sq. ft., R Z Dholakia House, Shree Niranjanbhai Dholakia Road, Sihor­ 364240) hereinabove on lease­rent­ Leave and License etc of this Civil Application on the conditions as deemed fit by the Hon'ble Court."

3. By way of the present appeal, the applicants ­ original defendants have challenged the judgment and decree dated 29.6.2018 passed by the learned Principal Senior Civil Judge, Sihor in Special Civil Suit no.49 of 2017, whereby the Suit came to be partly allowed.

4. This Court, vide order dated 26.7.2018, was pleased to admit the appeal and also passed the interim order in Civil Application no.1 of 2018, wherein the Division Bench has observed thus:­

"1. Rule. Learned advocate Shri Dhaval Barot waived service of rule on behalf of respondents - original plaintiffs.

2. For the interim order that we pass, we propose to give brief reasons.

3. Original plaintiffs are children and second wife of deceased Navinchandra Dholakia. During his life time, Shri Navinchandra Dholakia was a partner of a partnership firm which is engaged in the business of

C/FA/2749/2018 IA ORDER

processing and selling snuff and tobacco. Appellants are rest of the partners. Shri Navinchandra Dholakia having died on 28.8.2011, the question of devolution and inheritance of his share in the partnership business became a subject matter of dispute. The plaintiffs therefore filed a Civil Suit claiming 50% share in the partnership profit as well as the assets of the partnership. The defendants resisted the suit on various grounds. The bone of contention between the two sides however revolved around true interpretation of the relevant portion of the partnership deed pertaining to distribution of the share of partner who retires or dies. Clause (14) of the partnership deed came up for interpretation. According to the defendants i.e. present appellants, upon death of Navinchandra his legal heirs could be entitled only to 50% of the amount lying to the credit of the partner who dies and the share of the deceased partner in the profit and loss of the firm calculated prorata from the profit and loss account of the partnership firm for the immediate previous year from the date of death of the partner. According to the plaintiffs, this clause would entitle them to claim 50% of the accumulated profit of the partnership business as well as 50% share in the assets of the partnership.

4. The trial Court by the impugned judgment directed drawing of preliminary decree. The prayer of the plaintiffs for dissolution of the partnership firm was dismissed.

C/FA/2749/2018 IA ORDER

However, the trial Court recognized the claim of the plaintiffs to the extent of 50% of the accumulated profit of the partnership as well as in the 50% share of the assets of the partnership firm. The trial Court consequently directed taking of accounts and assess the valuation of the assets of the firm.

5. Having heard learned counsel for the parties we find that clause in question calls for further interpretation. First Appeal has therefore been admitted. Pending, final disposal of the First Appeal limited interim relief is also required to be granted. Consideration of interim relief shall have to be split into three parts. First with respect to the liability to pay to the judgment creditors 50% share of the profit of the firm. Second is with respect to the immovable assets of the firm and third is with respect to the direction for taking accounts and valuation of the assets of the firm.

6. With respect to the first aspect, the direction being a nature of the money direction we would allow the plaintiffs to withdraw the sum of Rs.48,49,051/­ deposited by the defendants during the pendency of the suit with accumulated interest thereon on suitable condition. Regarding the second aspect we were told that pending the suit the defendants were directed to maintain status with respect to the immovable assets. This would continue. Regarding the third aspect, while preventing the trial Court from

C/FA/2749/2018 IA ORDER

passing the final decree we would allow the process of taking of accounts and assessing the valuation of the property to go ahead.

7. In the result while disposing Civil Application following interim directions are issued.

(1) It would be open for the plaintiffs to withdraw the said amount of Rs.48,49,051/­ with interest by providing sufficient security to the satisfaction of the trial Court.

(2) The defendants shall maintain status quo with respect to the immovable properties of the firm.

(3) The direction for taking accounts and assessing the valuation of the assets of the firm shall be allowed to operate, however no final decree be passed by the trial Court.

8. It is clarified that the accounts to be taken and valuation to be assessed shall be as on 28.8.2011 i.e. the date of death of Navinchandra.

9. With these directions, the implementation and operation of the impugned judgment and decree shall stand stayed. Civil Application is disposed of. Rule is made absolute."

5. It is a matter of record that after the admission, the applicant herein filed Civil Application no.1 of 2019 and, inter­alia, prayed for a similar relief as prayed for in

C/FA/2749/2018 IA ORDER

the present application and this Court, vide order dated 24.10.2019, passed the following order:­

"2.0. Having heard the learned advocates for the respective parties and considering the observations made by this Court in the order dated 26.07.2018, as 50% share is claimed for in the immovable property of the firm, though the applicants are permitted to give some part of the property on lease to the concerned bank, 50% of the agreed rent shall be deposited every month before the trial Court and the opponent shall be at liberty to withdraw the same by providing sufficient security to the satisfaction of the trial Court. Rest of the order shall remain unaltered.

2.1 It is clarified that this condition is modified only for the present lease transaction and if the bank ceases to occupy or in the event lease agreement is either rescind or possession is given back to the applicant, the original order dated 26.07.2018 with original conditions shall apply.

2.2 With this, present application is disposed of accordingly."

6. Though the application was allowed and condition as prayed for was modified, it is pointed out by the learned advocate for the applicants that the Bank who is intending to take the suit property on lease thereafter

C/FA/2749/2018 IA ORDER

declined and therefore, even though the permission was granted, the applicants could not lease out the property as permitted by this Court pending the appeal and therefore, the present application is filed.

7. Mr. Anand Gogia, learned advocate for the applicants has reiterated the contentions raised in the application and has also filed written submissions. Mr. Gogia submitted that the proposed tenant had also filed an undertaking which is on record of this application (Pages 101 to 106). Mr. Gogia contended that the property is lying without any utilization and as per the conditions imposed by this Court, the opponents also shall get their share out of the rent i.e. Rs.85,000/­ per month received by the applicants. It was therefore submitted that the applicants be permitted to give the suit property on lease as prayed for.

8. Per contra, Mr. Dhaval Barot, learned advocate for the opponents has opposed the application. Mr. Barot submitted that in Civil Application no.1 of 2019, proposed lessee was a Bank, whereas in the instant case, it is a private party and therefore, the opponents do not agree to the same as the equities might change pending the hearing of the appeal and the

C/FA/2749/2018 IA ORDER

property may not be available as and when the appeal is decided.

9. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

10. Having heard the learned advocates appearing for the respective parties and also having considered the earlier orders passed in Civil Application no.1 of 2018 and Civil Application no.1 of 2019 and in facts of this case, we deem it fit to permit the applicants to give suit property as prayed for in this application only for a limited period of 11 months to Heni Metals on rent of Rs.85,000/­ per month. The applicants shall file an undertaking before this Court before executing any document and before giving possession of the suit property to Heni Metals as follows:­

[i] The applicants shall adhere to all other conditions of the earlier order dated July 26, 2018.

[ii] The applicants shall not give suit property to any other person or entity without prior permission of this Court.

       C/FA/2749/2018                                            IA ORDER



[iii]The     applicants          shall          also    file      a     further

undertaking that the suit premises shall be vacated by Heni Metals after 11 months and the report thereof shall be submitted before this Court.

[iv] The applicants shall not extend the lease period and/or shall not give the suit property to any other person or entity without prior permission of this Court. Only after filing of such an undertaking, the applicants shall give possession of the suit property on lease for 11 months to Heni Metals as proposed by the applicants.

[v] It is also made clear that this shall be subject to further orders of this Court and if any breach is noticed, permission granted by this Court shall stands revoked. The applicant shall inform the lessee that it has to maintain status­quo qua the construction of the suit property and the applicants shall not permit Heni Metals to change or in any manner deal with the suit property during this period of 11 months.

[vi] It is clarified that this condition is modified only for the present lease transaction and rest of the conditions of the original order dated 26.7.2018 with original

C/FA/2749/2018 IA ORDER

conditions shall apply.

11. With these observations, the present application is disposed of.

(R.M.CHHAYA, J)

(B.N. KARIA, J) MRP