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2009 DIGILAW 152 (DEL)

Master Talha Nasir v. Hashimuddin

2009-02-06

SHIV NARAYAN DHINGRA

body2009
IA Nos. 8540/2006, 8542/2006 and IA No.10196/2006 1. By this order, I shall dispose of the above three applications. The first application IA No.8540/2006 under Order 39 Rules 1 and 2 CPC has been made by the plaintiffs seeking an ad interim injunction restraining the defendants from getting the tenancy in respect of Premises No.1466-1467, Chitli Qabar, Jama Masjid, Delhi-110 006 transferred in their name or in the name of any third person and also for restraining the defendants from selling, transferring, alienating or creating any third party rights in the properties of the partnership firm, the details of which are provided in Annexure-B, during pendency of the instant suit. The second application IA No. 8542/2006 is under Order 40 Rule 1 read with Section 151 CPC filed by the plaintiffs for appointment of a Receiver qua the businesses of the partnership firm Shirin Bhawan being run at Premises bearing No.1466-1467, Chitli Qabar, Jama Masjid, Delhi-110 006 and No.5 and 6 Main Road Zakir Nagar, Delhi. The third application being IA No. 10196/2006 under Order 39 Rule 4 CPC has been made by the defendants No.1, 2 and3 praying inter alia that the ex parte order granted in favour of the plaintiff on 3rd August, 2006 be vacated. .2. The facts relevant for purpose of deciding the above applications are that the husband of the plaintiff No.2 (father of plaintiff No.1) was a partner in a partnership firm known as Shirin Bhawan. This partnership firm was doing business of manufacturing and sale of sweets and allied products at 1466-1467, Chitli Qubar, Jama Masjid. The plaintiffs claimed that the said firm came into existence on 10th January 1994 by way of a partnership between Mr. Nasruddin and defendants No.1 and 2. Mr. Nasruddin had a share of 35% in the said firm. Nasruddin died on 4th July 2005. After death of Mr. Nasruddin, the other two defendants along with other family members wanted to forcibly dispossess the plaintiffs (son and wife of Nasruddin) from the properties/assets individually owned by Mr. Nasruddin and they also wanted to deprive the plaintiffs of their legitimate rights in the properties/business left behind by Mr. Nasruddin. In schedule B to the plaint, plaintiffs had given list of the properties as under:- 1. Tenancy premises No.1466-1467, Chitli Qabar, Jama Masjid, Delhi 110 006 2. Nasruddin and they also wanted to deprive the plaintiffs of their legitimate rights in the properties/business left behind by Mr. Nasruddin. In schedule B to the plaint, plaintiffs had given list of the properties as under:- 1. Tenancy premises No.1466-1467, Chitli Qabar, Jama Masjid, Delhi 110 006 2. Premises bearing No.1463, 1468, 1469, 1470 and 1479 Gali Sayeed Rafai, Delhi 110 06 3. Premises at 5 and 6 , Main Road, Behind Jama Masjid, Zakir Nagar, Delhi 4. Flat No.153, Gali No.9, Zakir Nagar, Okhla, Delhi 5. Flat No.104, Gali No.19, Zakir Nagar Okhla, Delhi 6. Goods/equipments of the partnership firm M/s Shirin Bhawan. 7. Goodwill of M/s. Shirin Bhawan. 3. The Plaintiffs claimed that all the abovementioned properties were either acquired out of the earnings of partnership business or were the properties owned by Mr. Nasruddin. Plaintiffs filed this suit seeking a decree of declaration that partnership firm Shirin Bhawan stood dissolved on death of Nasruddin and the Court should declare Shirin Bhawan, a partnership firm, having dissolved on the death of Mr. Nasruddin and pass a decree for rendition of accounts in favour of the plaintiffs asking the defendants to declare truly and faithfully accounts qua the partnership business and to declare assets and properties belonging to the firm as on 4th July 2005. Plaintiffs also want defendants to give true and faithful account of the business carried out by them in the name and style of Shirin Bhawan after 4th July 2005 till such time the accounts are rendered. She (wife) wanted the court to pass a permanent injunction in favour of the plaintiffs restraining the defendants from using the name of the partnership firm Shirin Bhawan or from carrying on business at 1466-1467 Chitli Qabar. In the plaint she made averments alleging that the properties quoted by her in the Schedule were properties of the partnership firm and that the partnership firm was doing business in crores of rupees and the properties mentioned by her were the properties acquired out of the partnership funds. .4. In the written statement, defendants had taken the stand that the assets mentioned by her in the Schedule B were not the assets belonging to the partnership firm or to Mr. Nasruddin. It is submitted that the business in the name and style of Shirin Bhawan was started in 1986 by Late Tajuddin and his two sons Hasmuddin and Nasruddin. In the written statement, defendants had taken the stand that the assets mentioned by her in the Schedule B were not the assets belonging to the partnership firm or to Mr. Nasruddin. It is submitted that the business in the name and style of Shirin Bhawan was started in 1986 by Late Tajuddin and his two sons Hasmuddin and Nasruddin. The original partnership deed has been placed on record showing that the business commenced on 1st April 1986. The property at 1466-1467 was under the tenancy of Late Tajuddin. Nasruddin and defendant No.1 were working as partners and they were to get 25% share in the profits and rest of the profits belonged to Mr. Tajuddin. Mr. Tajuddin died on 1st January 1994 and the partnership between Mr. Taujuddin and others ultimately stood dissolved. The tenancy rights in the premises No.1466-67, Chitli Qabar therefore devolved upon the legal heirs of Mr. Tajuddin as per the Muslim law. After dissolution of the first partnership deed, a new partnership deed was executed on 10th January 1994 between Nasruddin and defendants No.1 and 2. The three became partners of Shirin Bhawan operating its business from 1466-1467, Chitli Qabar, Jama Masjid. As per clause 6 of the partnership deed, the capital for running of business was to be provided by defendant No.1 and late Mr. Nasruddin. The capital standing in the name of .Taujuddin was taken by his wife Mrs. Zubeda Bee (defendant No.2) who became the partner to the extent of 30%. Mr. Nasruddin and defendant No.1 became partners to the extent of 35% each. Mr. Nasruddin died on 4th July 2005 and his capital amount in the partnership firm at that time as per books of accounts and balance sheet dated 31st March 2005 was Rs.35,473.60. The balance sheet for the year ending 31st March 2004 showed that the capital amount of Mr.Nasruddin was only Rs.4,211.85. He invested more capital in the year 2004- 05 when one of his LIC policies got matured and he contributed the money. In the income tax returns of Mr. Nasruddin filed with the income tax authorities he had shown his income from the partnership firm business and from his salary. The partnership firm had not purchased any properties, either in the name of the firm or in any other name. The license for running Shirin Bhawan was in the name of Mr. In the income tax returns of Mr. Nasruddin filed with the income tax authorities he had shown his income from the partnership firm business and from his salary. The partnership firm had not purchased any properties, either in the name of the firm or in any other name. The license for running Shirin Bhawan was in the name of Mr. Taujuddin and was renewed by the MCD from time to time, even after his death. The electricity connection was also in the name of Mr. Taujuddin. It is submitted that after death of Mr. Nasruddin another partnership firm has been constituted which defendant No.1 and 3 have 40% share each in the profits and defendant No.2 has 20% share in the profits. The capital of Mr. Nasruddin has been shown as credit in the accounts of the firm and the partners of the firms had been ready and willing to settle the credit account with the plaintiffs. 5. The defendants had also given their version in respect of the properties mentioned in the schedule. It is submitted that the properties listed at S.No.3 and 4 in table given in paragraph 2 were bought by defendant No.1. Regarding properties mentioned at S.NO.5,6 and 9 forming part of Khasra No.134/1, 167 and 169 in Zamia Nagar, Okhla, it is submitted that some were purchased by defendant No.1 in April, 2001 out of his own personal income. The last property was never purchased in the name of the firm nor did it belong to the firm. This property was further sold by defendant No.1 to one Mr. Hajji in September 2005 vide power of attorney and agreement to sell (he had also purchased in the same manner). It is submitted that Zamia Nagar was an unauthorized colony and the properties are bought and sold by preparing documents such as GPA, Agreement to Sell, Affidavit etc. Regarding property mentioned at S.No.4, it is stated that defendant No.1 had purchased this property in the year 2000 and he sold the same to one Mr. Rahees who is running a dairy in the name of Nihal Dairy in 3N- Okhla in June 2005. The property never belonged to the firm neither was as assets of the firm. Regarding property mentioned at S.No.5, it is submitted that this plot was bought by way of usual documents by defendant No.1 in June 2004 from one Mr. Rahees who is running a dairy in the name of Nihal Dairy in 3N- Okhla in June 2005. The property never belonged to the firm neither was as assets of the firm. Regarding property mentioned at S.No.5, it is submitted that this plot was bought by way of usual documents by defendant No.1 in June 2004 from one Mr. Aslam out of his own income and funds. Regarding property mentioned at S.No.2, it is submitted that this property was personal property purchased by defendant No.3 out of his personal funds in the year 1997. There is no mention of this property in the partnership deed neither defendant No.3 had contributed this property as capital in the business of the firm. The other properties namely 1463, 1468, and 1469- 1470 belonged to defendant No.2 and were not contributed by him to the firm. It is thus submitted that none of the properties mentioned by the plaintiff were partnership firm properties. .6. A perusal of the partnership deed, relied upon by the plaintiff, shows that the partnership between Mr. Nasruddin and other two partners was executed on 10th January 1994 and in this deed, it is stated that the partnership business was to be run at 1466 .1467, Chitli Qabar, Jama Masjid and the capital of deceased Mr. Taujuddin shall be the capital of Smt. Zubeda Bee. Clause 6 provided that the tenanted rights of the shop shall vest in the firm M/s. Shirin Bhawan. It is also provided that the accounts of partnership business shall be closed on 31st March of every year and profits and loss shall be ascertained and credited or debited to the respective account of the partners. It is also provided that both the working partners namely Mr. Nasruddin and Mr. Taujuddin shall be paid salary of Rs.3250 per month which can be increased by mutual consent. It is further provided that the parties shall maintain faithful and true account of the partnership business. There is also an arbitration clause. 7. From the perusal of the partnership deed, it becomes clear that the tenancy of the business premises at 1467-1468, Chitli Qabar, Jama Masjid, was to under the partnership firm Shirin Bhawan. If there was any right of tenancy vested in Lrs of Taujuddin, the same had been given up in favour of the partnership firm. Thus after death of Mr. From the perusal of the partnership deed, it becomes clear that the tenancy of the business premises at 1467-1468, Chitli Qabar, Jama Masjid, was to under the partnership firm Shirin Bhawan. If there was any right of tenancy vested in Lrs of Taujuddin, the same had been given up in favour of the partnership firm. Thus after death of Mr. Taujuddin, the three partners became joint tenants of the premises. The plea taken by the defendants that the business premises viz. 1467-1468, Chitli Qabar, Jama Masjid was not under the tenancy of the partnership firm is prima facie not tenable. The plaintiffs as successors of Mr. Nasruddin would have a right in the goodwill of Shirin Bhawan and also have a right to truthful accounting of the partnership business. The claim of the plaintiffs qua other properties prima facie is not verifiable at this stage because none of the properties mentioned by the plaintiffs stand in the name of partnership firm or Late Mr. Nasruddin. Other properties mentioned by the plaintiff thus cannot be considered as the assets of the partnership firm unless it is proved that they were purchased Benami. If the pleading of Benami is taken, the provisions of Benami Transactions Act in fact may stand in the way of the plaintiffs to claim any right over the properties. 8. I, therefore, consider that the plaintiffs cannot claim a right over the other properties except the properties of the firm. The only property of the firm is 1467-1468, Chitli Qabar, Jama Masjid, Court can protect the rights of the plaintiff to the extent of tenancy rights, that same be not got transferred by the remaining tenants in their exclusive names. I, therefore allow the application of the plaintiffs to the above extent only. Plaintiffs are also entitled for preservation of the account books etc of the firm Shirin Bhawan up the date when Mr. Nasruddin died and the partnership deed stood dissolved by operation of law. Defendants are, therefore, directed to preserve the account books and deposit the same in this Court from the period 10th January 1994 to 2nd July 2005. 9. As far as appointment of a Court Receiver is concerned. It is well recognized that this is one of the harshest remedies, which the Court should resort to, only in extraordinary circumstances where the interest of the plaintiff are exposed to manifest peril. 9. As far as appointment of a Court Receiver is concerned. It is well recognized that this is one of the harshest remedies, which the Court should resort to, only in extraordinary circumstances where the interest of the plaintiff are exposed to manifest peril. In this case, the business of partnership firm Shirin Bhawan in which Taujuddin was the partner came to an end on 2nd July 2005. Plaintiffs can, at the most, claim share in goodwill in the name Shirin Bhawan and can have a claim for account of the firm prior to the death of Mr. Nasruddin. They cannot have a right to stop the defendants from carrying on business of manufacturing and selling sweets. It cannot be said that defendants have no right to use the name of Shirin Bhawan at all. By having a share in the goodwill in the name Shirin Bhawan, defendants also had a right to use the name Shirin Bhawan. I, therefore, consider that it is not a case where the Court should appoint a receiver. The application for appointment of Receiver is hereby dismissed. CS(OS) 1519/2006 List on 30th March 2009.