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2007 DIGILAW 258 (CAL)

SPRITEX MACHINES v. SAILENDRA CHANDRA DAS

2007-04-04

S.P.TALUKDAR

body2007
S. P. TALUKDAR, J. ( 1 ) THE order dated 28th April, 2006 passed by the learned trial Court in Title Suit No. 31 of 2003 in response to an application under order 1 Rule 10 (2) of the Code of Civil Procedure is under challenge in this application under Article 227 of the Constitution. ( 2 ) MR. Madhab Prosad Banerjee and Sri Swadesh Ranjan Ghosh, as petitioners, filed an application under Order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure praying for allowing them to be added as plaintiff nos. 4 and 5 in the suit. A written objection as against such prayer for addition was filed. Learned Trial Court after taking into consideration all relevant fact and circumstances by the impugned order allowed the said prayer. Learned court thereafter fixed a date for filing of written statement. ( 3 ) LEARNED Counsel for the petitioners while assailing the said order submitted that having regard to the fact that the suit is one for specific performance of contract and injunction, there could be no scope for allowing such persons to be added. It was emphatically submitted that the said Madhab prosad Banerjee and Swadesh Ranjan Ghosh cannot have anything to do with the subject-matter of controversy in the suit. According to learned Counsel, those persons are neither proper not necessary parties. ( 4 ) ON the other hand, learned Counsel for the opposite parties referring to the backdrop of the present case submitted that the peculiarity of the controversy as raised in the suit demands the presence of such persons. ( 5 ) THE suit under reference is one for specific performance of contract and injunction. Plaintiff No. 1 is a partnership firm and plaintiff Nos. 2 and 3 are the present partners of the said firm. The defendants entered into an oral agreement on or about 15th March, 1999 with plaintiff No. 1 in respect of proposed sale of a flat being No. 1a situated on the 1st floor (eastern side) of premises No. 31, Lansdown Place, Kolkata - 700029. The consideration was fixed at Rs. 10,00,000/- only. Plaintiff No. 1 through its partners paid the consideration money and on receipt of the same, the defendants delivered vacant and peaceful possession of the said property which is under exclusive possession and control of the plaintiffs. The consideration was fixed at Rs. 10,00,000/- only. Plaintiff No. 1 through its partners paid the consideration money and on receipt of the same, the defendants delivered vacant and peaceful possession of the said property which is under exclusive possession and control of the plaintiffs. Two of the partners, namely, Madhab Prosad Banerjee and swadesh Ranjan Ghosh, in the meantime, resigned from the partnership business of plaintiff No. 1 with effect from 15. 3. 2003. They relinquished their share of interest in the partnership assets by mutual oral agreement with the continuing partners. The said partnership firm was thus reconstituted with plaintiff Nos. 2 and 3 accepting the said flat as asset of the firm. ( 6 ) IN order to regularize the title in respect of the said flat, the defendants were requested in writing on or about 12. 2. 2002 to execute and register a Deed of Conveyance in favour of the individual name of plaintiff No. 3, as the firm's nominee. Defendants instead of complying with the same raised certain fake questions. ( 7 ) IT was claimed that in case of any Deed of Conveyance to be registered in favour of any particular individual, there would be question of payment of capital gain tax above the valuation of Rs. 4. 75 lakhs. Plaintiffs agreed to take care of the same. ( 8 ) EVEN thereafter, the defendants did not bother to execute and register a deed of Conveyance in favour of plaintiff No. 3 and not even in favour of the plaintiff No. 1 firm. The defendants were again requested by an Advocate's letter dated 24. 5. 2003. By sending a reply dated 5. 6. 2003, the defendants again raised certain irrelevant pleas and invited the plaintiffs to file a suit. Though the entire amount of consideration money had been paid, the defendants by their reluctant attitude are virtually refusing to execute and register a Deed of conveyance in favour of the plaintiffs and are attempting to cast cloud in respect of the title of the disputed property. The plaintiffs claimed that they discharged their part of the obligation under the agreement by making necessary payment of the full consideration money. The plaintiffs are ready and willing to pay the capital gain tax in case the same is required for the purpose of execution and registration. The plaintiffs claimed that they discharged their part of the obligation under the agreement by making necessary payment of the full consideration money. The plaintiffs are ready and willing to pay the capital gain tax in case the same is required for the purpose of execution and registration. Since defendants failed and neglected to perform their part of the obligation, the plaintiff filed the aforesaid suit for specific performance as well as for injunction. ( 9 ) LEARNED Counsel for the petitioners submitted that having regard to the nature of the controversy raised in the suit and the reliefs sought for, the said opposite parties, namely, Madhab Prosad Banerjee and Swadesh Ranjan Ghosh cannot have any manner of involvement. ( 10 ) IN response to this, it was submitted by Mr. Saptangsu Basu, ld. Counsel for opposite party No. 3 that the said two persons were admittedly partners of plaintiff No. 1 firm at the relevant time. Though they resigned and retired, madhab Prosad Banerjee submitted another application for allowing him to rejoin the partnership firm. It was also submitted that the said firm was not reconstituted. The fact that the transaction under reference took place at a time when such persons were partners of plaintiff No. 1 firm, has also been brought to the notice of this Court. ( 11 ) IT was also submitted that the assets of the plaintiff No. 1 firm have not yet been properly ascertained and the claim of the opposite party Nos. 3 and 4, even assuming that they are no longer partners, are yet to be effectively settled. Dispute has also been raised in regard to the attempt made by the petitioners to convert an asset of the firm in the personal name of one of the partners. ( 12 ) IT appears that the learned Trial Court was largely swayed by such complexity of the situation while observing that presence of such persons as parties will help in adjudication of the dispute. ( 13 ) LEARNED Counsel for the opposite party Nos. 1 and 2 chose to share the points raised on behalf of the opposite party Nos. 3 and 4. According to Mr. Mukherjee, learned Counsel on behalf of the opposite party Nos. 1 and 2, in the interest of effective adjudication, such opposite party Nos. 3 and 4 are required to be made parties in the pending suit. 1 and 2 chose to share the points raised on behalf of the opposite party Nos. 3 and 4. According to Mr. Mukherjee, learned Counsel on behalf of the opposite party Nos. 1 and 2, in the interest of effective adjudication, such opposite party Nos. 3 and 4 are required to be made parties in the pending suit. Learned Counsel for the opposite party no. 4 adopted the submission made on behalf of the opposite party No. 3. ( 14 ) ORDER 1 Rule 10 (2) of the Code of Civil Procedure reads as follows: "court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. " ( 15 ) THE suit under reference is one for specific performance of contract. The present petitioners are plaintiffs and admittedly, a flat was purchased in the name of the firm being petitioner No. 1. Possession was taken on payment of entire consideration money. But the Deed of Conveyance was not executed and registered. This seems to be the grievance of the petitioners in the suit. What emerges from the materials available on record and the submission made on behalf of the parties is that opposite party Nos. 3 and 4 resigned w. e. f. 15th march, 2000. Dues were settled with opposite party No. 4. Opposite party No. 3 wanted to appoint Arbitrator for settlement of his accounts. Petitioner No. 1 firm was reconstituted by the remaining partners being petitioner Nos. 2 and 3 and this was done on 3. 6. 2002. Opposite party No. 3 refused to accept his share of the partnership business and on 12. 6. 2002 wrote a letter withdrawing his letter of resignation dated 8. 3. 2002. He also appointed an Arbitrator for settlement of his accounts in terms of the partnership agreement. 2 and 3 and this was done on 3. 6. 2002. Opposite party No. 3 refused to accept his share of the partnership business and on 12. 6. 2002 wrote a letter withdrawing his letter of resignation dated 8. 3. 2002. He also appointed an Arbitrator for settlement of his accounts in terms of the partnership agreement. ( 16 ) IT was alleged by the petitioners that opposite party Nos. 1 and 2 having nothing to do with the settlement of accounts or any dispute relating to the functioning of the partnership firm had been trying to derive some benefit out of the controversy. They also filed an application for adding opposite party nos. 3 and 4 as parties in the pending suit. ( 17 ) AFTER taking into consideration all relevant fact and circumstances, I find it difficult to appreciate the stand taken on behalf of the opposite parties. So far as the suit for specific performance and injunction is concerned, the defendant Nos. 1 and 2 being opposite party Nos. 1 and 2 herein cannot have any business with regard to any complication in the matter of functioning of the partnership firm. It is claimed that they accepted the entire amount of consideration money. It is admitted that the present petitioners are in possession of the flat in question. What is required to be done, is the execution and registration of a Deed of Conveyance in favour of the petitioner No. 1 firm. In such backdrop, the opposite party Nos. 3 and 4 by no stretch of imagination can have anything to do with the pending suit. If they have any grievance relating to the settlement of dues, they will certainly be at liberty to raise such grievance and take appropriate action in accordance with law. But that by itself cannot be a ground for allowing them to added as parties in the present suit. ( 18 ) ON behalf of the petitioners, it was submitted that the opposite party nos. 3 and 4 will also be entitled to recover any amount from the continuing partners, as a debt from them with interest. ( 19 ) IN this context, reference was also made to section 37 of the Partnership act. But by no stretch of imagination, it can be said that the presence of opposite party Nos. 3 and 4 in the suit is necessary. ( 19 ) IN this context, reference was also made to section 37 of the Partnership act. But by no stretch of imagination, it can be said that the presence of opposite party Nos. 3 and 4 in the suit is necessary. They are neither proper nor necessary parties in the suit. The learned Trial Court was not at all justified in allowing them to be added as parties and thereby giving scope to create more confusion and controversy in the present suit. ( 20 ) LEARNED Counsel for the petitioners, in this context, sought to derive support from the decision in the case of Pamuru Vishnu Vinodh Reddy vs. Chilakuru Chandrasekhara Reddy and Ors. , as reported in AIR 2003 SC 1614 . ( 21 ) THE order under challenge thus suffers from inherent impropriety and misappreciation of law resulting of miscarriage of justice. ( 22 ) ACCORDINGLY, the impugned order dated 28. 4. 2006 passed by learned Trial court in Title Suit No. 31 of 2003 be set aside. ( 23 ) THE present application being C. O. 2380 of 2006 stands allowed. ( 24 ) NO order as to costs. ( 25 ) XEROX certified copy, if applied for, be supplied to the parties as expeditiously as possible. Appeal allowed.