Karnataka High Court
M/S Nimah Urbanscapes Llp vs Mr Altaf Abdulrehman Nadaf on 10 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.7551/2024 (CPC)
BETWEEN:
1. M/S. NIMAH URBANSCAPES LLP
REGISTERED OFFICE AT
NO.2846/100/3, 1ST CROSS,
11TH BLOCK, NEAR ARKAVATHI LAYOUT,
RACHENAHALLI VILLAGE, THANISANDRA,
BENGALURU - 560 077.
2. MR. MAZAR JAVEED
S/O DANTERMAKKI MOHAMMED PEER,
AGED ABOUT 62 YEARS,
RESIDING AT NO.B 203,
PURVA VENEZIA,
NEAR MOTHER DAIRY,
YELAHANKA NEW TOWN,
BENGALURU-560 064.
3. MRS. ASIFA JAVEED,
D/O MOHAMMED ISSAQ,
W/O MR. MAZHAR JAVEED,
AGED ABOUT 50 YEARS,
RESIDING AT NO.B 203,
PURVA VENEZIA,
NEAR MOTHER DAIRY,
YELAHANKA NEW TOWN,
BENGALURU-560 064. ... APPELLANTS
(BY SRI ANIL KUMAR SHETTY, ADVOCATE)
2
AND:
MR. ALTAF ABDULREHMAN NADAF
S/O ABDULREHMAN NADAF,
AGED ABOUT 46 YEARS,
PERMANENT RESIDENT OF
NO.678, SAVADATTI ROAD,
HAVERI PETH, M.J.NAGAR, HUBLI,
DHARWAD-580 006. ... RESPONDENT
(BY SRI S SHANKAR SHETTY, ADVOCATE)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 20.09.2024
PASSED ON I.A.NO.1 IN O.S.NO.5221/2024 ON THE FILE OF
THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CCH.NO.23 ALLOWING THE I.A.NO.1 FILED UNDER
ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This MFA is filed challenging the order dated 20.09.2024
passed on I.A.No.1 in O.S.No.5221/2024 by the XXV Additional
City Civil and Sessions Judge, Bengaluru.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the
respondent/plaintiff before the Trial Court while seeking relief of
declaration to declare that supplementary LLP partnership
agreements dated 16.01.2024 and 23.01.2024 and all other
ancillary documents submitted by the defendants to the Ministry
of Corporate Affairs are null and void and not binding on the
plaintiff and as well M/s Nimah Urbanscapes LLP and
consequently, sought for the relief of mandatory injunction
directing defendant Nos.2 and 3 to remove themselves from the
office of M/s Nimah Urbanscapes LLP unauthorisedly and
handover all the belongings including the keys of the Firm to the
plaintiff forthwith and grant such other relief's and inter alia
sought for the relief of temporary injunction against the
defendants from selling, alienating, encumbering or creating
third party rights over the suit schedule property.
4. The plaintiff contends that he is an authorized
designated partner of M/s Nimah Urbanscapes LLP Firm from
05.11.2018 having 90% contribution in the said LLP Firm and
partners have also acquired the residential converted land which
has been morefully described in the schedule. Earlier, sale deed
with respect to the land was in the name of M/s Quantus
Urbanscapes LLP and in view of change in the name as M/s
Nimah Urbanscapes LLP Quantus, the deed of declaration with
respect to the above said property has been executed by the
partners of the Firm. It is contended that during the course of
business of the Firm, the plaintiff fell sick and his health
condition was deteriorated and he was frequently visiting the
hospital at Dharwad. On 16.01.2024, the plaintiff was in the
hospital for whole day for the diagnosis, collection of report and
medication. The defendant Nos.2 and 3 who are known people
to him since 2016 and he was under treatment due to his illness,
took the assistance of defendant Nos.2 and 3 and taking
advantage of the same, got executed themselves a
supplementary LLP Partnership Agreement dated 16.01.2024
and they have filed Form -3 and 4 on 18.01.2024 to remove
earlier partner Mr. Ruch Abdul Hameed from position of
designated partner of the Firm and fraudulently obtained his
signatures on the blank sheets and inducted themselves as
partners and played fraud on the plaintiff and also created the
document dated 23.01.2024 stating themselves to be the
designated partners of the LLP to illegally remove the plaintiff
from his position of designated partner. It is also the contention
of the plaintiff that fraudulently obtained the document of
resignation but he had invested Rs.9 crore with M/s Nimha
Urbanscapes LLP and his share is 90% in the said Firm and
hence, sought for the relief of declaration and inter alia sought
for the relief of temporary injunction restraining the defendants
from selling or alienating the suit schedule property to any other
person.
5. Defendant Nos.1 to 3 appeared and filed their
statement of objections denying the averments made in the
plaint and contend that the respondent/plaintiff is the signatory
to the agreement dated 16.01.2024 and also allegation of fraud
and collusion is baseless. It is also contended that the very
partner who went out from the Firm i.e., Ruch Abdul Hameed
had executed the affidavit and hence, the grounds urged in the
plaint is speculative. It is also contended that in pursuant to the
resignation, the plaintiff has received a sum of Rs.3½ crore
towards settlement and he has retained the said amount. It is
also contended that he has also communicated to the continuing
partners as well as to the Charted Accountant to process and
proceeded in the completion of formalities to report the change
in constitution to the statutory authorities. The plaintiff is well
aware of the process and on the ground of acquiescence and
conduct, the plaintiff would be disentitled to the relief. The
plaintiff has to value the relief on the market value since he is
not in the office of defendant No.1's Firm. It is also contended
that when the appellants are doing business, plaintiff has no
locus standi to seek the relief of delivery of possession. The
contention made that the plaintiff contributed a sum of Rs.9
crore in the defendant No.1's firm is baseless, thus, the plaintiff
has no right to seek such a relief.
6. The Trial Court having considered the material
available on record formulated the points and answered the
same as affirmative in coming to the conclusion that the plaintiff
has disputed the resignation letter on the ground that the same
has not been served through any mode of service including
email, fax, etc. As per the version of the plaintiff, by taking
undue advantage of his health condition who was hospitalized,
defendants themselves got executed a supplementary LLP
partnership agreement and also submitted Form No.3 and 4 on
23.01.2024 to illegally remove the plaintiff from his position of
designated partner. The defendants have forged the signatures
of plaintiff and also fraudulently obtained the signature of
designated partner by Ruch Abdul Hameed. Now, there is an
apprehension of alienating the property. Hence, comes to the
conclusion that prima facie case is made out and allowed the
application. Being aggrieved by the order of the Trial Court, the
present appeal is filed by the defendants before this Court.
7. The main contention of the learned counsel
appearing for the appellants before this Court is that the
allegation of fraud or collusion is required to be supported by
material facts and suit is misconceived. The Trial Court ought to
have held that the respondent has no locus standi to question
the agreement dated 16.01.2024 as the same purports to exit
Ruch Abdul Hameed from the Firm and induct the appellants
No.2 and 3 into the firm. The counsel also would vehemently
contend that the Trial Court ought to have held that respondent
does not dispute issuance of his resignation letter and the same
is also corroborated by photographs and video submitted by the
appellants. The counsel also would vehemently contend that the
Trial Court ought to have held that respondent has not
challenged his resignation but challenged only the process of
intimation of the same to the competent authority. The Trial
Court ought to have held that respondent having received Rs.3½
crore towards settlement and having retained the same, has
suppressed the material facts and hence, the plaintiff had not
approached the Court with clean hands and inspite of it, the Trial
Court granted the relief of temporary injunction. The counsel
also would vehemently contend that the document dated
16.01.2024 is also signed by his wife as a witness and also
brought to notice of this Court the communication sent for
having signed the entire document on 22.01.2024 itself to
upload the same and inspite of it, the Trial Court granted the
relief. Hence, the finding of the Trial Court requires interference
of this Court.
8. Per contra, the learned counsel appearing for the
respondent would vehemently contend that the respondent had
challenged both supplemental agreements dated 16.01.2024 and
23.04.2024. The counsel also would vehemently contend that
the respondent was under medication and the medical report
also clearly discloses that he was hospitalized. The plaintiff was
ousted on 23.01.2024. When the question was put to the
counsel for the respondent for having received the amount of
Rs.3½ crore, he made the submission that the said amount was
paid in respect of other transaction and sought time to produced
the documents and thereafter produced the documents No.1 to
10 i.e., the copy of statement of account for relevant period of
ICICI Bank; copy of notice dated 29.07.2024; copy of reply
dated 29.08.2024; statement of accounts; balance sheet; copy
of complaint dated 28.06.2024 filed by the respondent to the
Registrar of Companies; reply dated 03.09.2024 by the Registrar
of companies; endorsement dated 06.07.2024 by the Sub-Urban
Police, Dharwad to the respondent; FIR registered in
Cr.No.150/2024 and copy of Form No.9.
9. The counsel for the appellants in reply to these
documents made his further submission that the respondent not
made any such payment in favour of the owner of the property
to which premises is leased out to the Firm and the same is in
the name of the Firm and not in the individual capacity. Hence,
the respondent cannot claim that the same is in individual
capacity and the amount was paid out of the investment made in
the Firm. The counsel also would vehemently contend that no
explanation is given for having received the amount of Rs.3½
crore except showing the payment of Rs.3 lakh. The counsel
also would vehemently contend that the owner has surrendered
the premises in favour of the Firm and not in favour of the
respondent. The counsel also would vehemently contend that the
payment shown to the Malabar Gold is nowhere concerned and
the same is not stated in the plaint and new statement is made
before this Court. The fact that resignation letter is signed and
the same is not disputed and now, cannot dispute the
transaction.
10. In reply to this argument, the counsel for the
respondent would vehemently contend that, the payment was
made towards refund of advance money and signatures are
obtained by misrepresentation. The counsel also submits that
90% investment is made by the plaintiff i.e., Rs.9 crore and
brought to notice of this Court the document placed before the
Court for having made the payment and particularly, the
document No.5 shows the investment of 4½ crore and also long
term borrowings and long term loans and advances.
11. In reply to this argument, the counsel for the
appellants would vehemently contend that when the wife is a
witness to the document at Annexure-B, now cannot contend
that by misrepresentation, same was taken and complaint is also
filed after filing of the suit for creation of said document. When
the resignation letter is signed and the same is not challenged
and no relief is sought with regard to the resignation letter
except challenging the agreements dated 16.01.2024 and
23.01.2024 i.e., Annexure- B and F, the Court has to see
whether there is a prima facie case made out or not. But the
Trial Court fails to take note of the prima facie documents placed
before it.
12. The counsel also brought to notice of this Court
Annexure-E which clearly discloses that the respondent/plaintiff
has requested to upload the same in MCA portal and even in the
month of March 2024, a reply was given with regard to the
process for removal of the name of the plaintiff as a partner has
been completed from their end and no dispute till then and suit
was filed only in the month of July, 2024 and kept quiet and
acquiesced his right.
13. The counsel for the respondent in support of his
arguments relied upon the judgment of the Apex Court reported
in (2022) 7 SCC 1 in the case of VEENA SINGH (DEAD)
THROUGH LEGAL REPRESENTATIVE vs DISTRICT
REGISTRAR/ADDITONAL COLLECTOR (F/R) AND
ANOTHER wherein the Apex Court held with regard to denial of
execution by signatory and mere execution of document and
signing of an instrument/agreement cannot be a ground and also
brought to notice of this Court paragraph 73 wherein discussion
was made that the execution of a document does not stand
admitted merely because a person admits to having signed the
document. Hence, contend that the case of the appellants cannot
be accepted.
14. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record as well as the principles laid down on the judgment
referred supra, the points that would arise for the consideration
of this Court are:
1. Whether the Trial Court committed an error in
granting the relief of temporary injunction in
favour of the plaintiff as sought in I.A.No.1
and whether it requires interference of this
Court?
2. What order?
Point No.1:
15. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record and also taking into note of the prayer sought in the
plaint which is annexed as Annexure-G wherein the relief is
sought for declaration to declare that the documents dated
16.01.2024 and 23.01.2024 are null and void and also sought
for the relief of mandatory injunction and inter alia sought for
the relief of temporary injunction for not to sell or not to alienate
the suit schedule property. The Trial Court granted the relief of
temporary injunction having considered the pleadings of both
the parties in coming to the conclusion that the main contention
of the plaintiff is that without his knowledge and consent, the
defendants used his digital signature for filing Form No.3 and 4
and at no point of time, the plaintiff has given his consent to the
defendants to come for any meeting and he has not tendered his
resignation letter and not served the same through any mode of
service including e-mail, fax, etc. The Trial Court accepted the
contention of the plaintiff that taking undue advantage of his ill-
health condition, the document dated 16.01.2024 got executed
and submitted Form No.3 and 4 on 23.01.2024 and hence,
granted the relief of temporary injunction. It is also opined that
the defendants have forged the signature of plaintiff and
fraudulently obtained the signature of designated partner by
Ruch Abdul Hameed. Now the plaintiff is having apprehension
that the defendants at any movement will alienate or create the
charge over the suit schedule property.
16. Having perused the pleadings of the parties and also
on perusal of the document dated 16.01.2024 at Annexure-B, it
is clear that the same is signed by the plaintiff. The main
contention of the plaintiff that he was hospitalized. But the
document reveals that he had signed the document personally
and also said document discloses the capital of LLP is Rs.5 crore
and out of that he had invested 90% i.e., 4½ crore. In this
document, the appellants are included as partners. The said
document also discloses the signature of existing partner i.e.,
the plaintiff and apart from that one of the witnesses in the said
document is none other than the wife of the plaintiff and the said
fact is not disputed by the plaintiff.
17. It is also important to note that the contention of the
plaintiff that Ruch Abdul Hameed was thrown out from the Firm
but he had given an affidavit as per Annexure-C and also the
fact that he had not disputed the execution of the affidavit and
also going out of from the Firm. Annexure-D is the letter
addressed by the plaintiff tendering his resignation dated
20.01.2024. It is rightly pointed out by the counsel for the
appellants that same has not been challenged before the Trial
Court except challenging Annexure-B and F. It is important to
note that after the resignation letter at Annexure-D, Annexure-F
came into existence i.e., on 23.01.2024. It is also important to
note that Annexure-E is the letter correspondence made by the
plaintiff himself i.e., on 22.01.2024 wherein the plaintiff stated
that he has signed all the documents and handed over to Mazhar
Javeed and also requested to upload the same in MCA portal i.e.,
Ministry of Corporate Affairs. It is also important to note that
Annexure-E also discloses that in view of the letter addressed by
the plaintiff, a reply was given stating that all the work relating
to removal of his name as a partner has been completed from
their end and the said letter is dated 12.03.2024 and the suit is
filed in the month of July 2024. It is also important to note that
the plaintiff not dispute the fact that he has received the amount
of Rs.3½ crore. The appellants also in order to substantiate their
contention that they made the payment of Rs.3½ crore as
settlement, produced the documents before the Court. During
the course of the argument, the counsel for the respondent
would vehemently contend that the said payment is towards
other transaction and an attempt is made before this Court filing
document No.1 for having paid the amount in favour of the land
owner for having taken the premises for lease to the tune of
Rs.1,95,00,000/- but the same is made by the Firm and not in
the individual name of the plaintiff.
18. The counsel for the respondent also brought to
notice of this Court with regard to the amount of Rs.72,50,000/-
which was paid for having purchased the diamond ornaments
from Malabar Gold from the family members of appellant No.2
and also payment of Rs.32,55,000/- and in total an amount of
Rs.1,05,05,000/- was paid. It was mutually agreed between
appellant No.2 and respondent and for that payment, appellant
No.2 will refund with interest @ 10% p.a. With regard to this
aspect is concerned, there is no averment in the plaint as
contended by the appellants' counsel and the same is after
thought and details are given when this Court asked about the
other transaction. There is no explanation on the part of plaintiff
for having received the amount of Rs.3½ crore. The earlier
payment in favour of the landlord also in the name of the Firm
and not in the individual name of plaintiff and only payment of
Rs.3 lakh is admitted by the appellants that is on 17.05.2022.
The fact that these two documents came into existence in the
month of January, 2024 and resignation letter was tendered on
20.01.2024 and the same is reaffirmed by the plaintiff on
22.01.2024 sending the message and also admitted the very
execution of this document and now the plaintiff contend that
those documents were obtained by misrepresentation and the
same cannot be accepted. It is rightly pointed out by the
appellants' counsel that in order to prove the fraud as contended
by the respondent is concerned, there is no any material facts.
The document of resignation letter and also the confirmation of
execution of document and requesting to upload the same in
MCA portal and the same was uploaded and process was
completed and letter also sent to the chartered accountant to
complete the processes clearly disclose for having executed the
document of Annexure-B and F and hence, the Trial Court ought
to have taken note of the said fact into consideration but
committed an error in coming to the conclusion that the
defendants have forged the signature of the plaintiff and
fraudulently obtained the signature of the designated partner by
Ruch Abdul Hameed and the said reasoning is against the
material available on record since the said Ruch Abdul Hameed
has executed the affidavit and he also not disputed the same. It
is also important to note that the plaintiff also not approached
the Court challenging the document of Annexure-D. Thus, the
conclusion of the Trial Court that defendants have forged the
signature of the plaintiff is erroneous since the very plaintiff has
not disputed his signature but his only contention is that the
same has been taken by misrepresentation.
19. The Trial Court comes to the conclusion that
fraudulently obtained the signature of the designated partner by
Ruch Abdul Hameed and the said conclusion is also against the
material available on record when the respondent did not
challenge the same. Hence, the Trial Court ought to have comes
to the conclusion that there is a prima facie documents in favour
of the defendants i.e., Annexure-B, D, E and F wherein it
discloses for having executed the document and even requested
to upload the document in MCA and only after thought, in the
month of June and July, 2024 raised the grounds and filed the
suit. When the defendants are running the business of Firm after
inducting appellants as partners and even the plaintiff is also a
party to the document dated 16.01.2024 and also not disputed
the resignation letter dated 20.01.2024 and no challenge is
made with regard to the said resignation letter and only
challenge is made in respect of the documents dated 16.01.2024
and 23.01.2024, hence, there is a force in the contention of the
appellants' counsel that the Trial Court committed an error in
finding prima facie case in favour of the plaintiff.
20. On the other hand, the documents which have been
placed before the Court are clearly disclose prima facie case in
favour of the defendants in view of Annexure-B, D, E and F and
there is a balance of convenience in favour of the defendants
and not in favour of the plaintiff. If the defendants restrained
from alienating the suit schedule property, the defendants will
put to irreparable loss and injury and hence, the observation
made by the Trial Court is erroneous.
21. The learned counsel for the respondent relied upon
the judgment in the case of VEENA SINGH referred supra
regarding execution of the document and brought to notice of
this Court paragraph 73 wherein it discussed with regard to
mere execution of the document does not stand admitted having
signed the document and this principle is not applicable to the
facts of the case on hand for the reason that the respondent not
disputes the execution of the document at Annexure-B and also
not disputes the letter of resignation at Annexure-D as well as
Annexure-E and immediately after the execution of the
document, sent the information to upload the same in MCA
portal to the chartered accountant and in the month of March,
2024 reply was given stating that same is uploaded and process
has been completed. When such material is available on record,
the very contention of the respondent's counsel cannot be
accepted. Having taken note of the material available on record
it discloses that the prima material is in favour of the appellants
and not in favour of the respondent and the Trial Court
committed an error in grating the temporary injunction in
coming to the conclusion that there is a prima facie case in
favour of the respondent. Hence, the order of the Trial Court
requires interference of this Court. accordingly, I answer the
above point as affirmative.
22. In view of the discussions made above, I pass the
following:
ORDER
The miscellaneous first appeal is allowed.
The impugned order dated 20.09.2024 passed on I.A.No.1
in O.S.No.5221/2024 by the Trial Court is set aside and
consequently, I.A.No.1 is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
SN
