LALJIBHAI RAMJIBHAI HAMIRANI Vs. LAVJIBHAI HARIBHAI MANDANKA

JUDGEMENT

(1.) PRESENT Appeal From Order is preferred by the appellant herein-original plaintiff under Order XLIII, Rule l (r) of the Code of Civil procedure challenging the impugned order dated 14-10-2008 passed by the learned principal Senior Civil Judge, Vadadora below applications Exhs. 5 and Exh. 6 in Special Civil Suit No. 163 of 2008 by which the learned trial Court has dismissed the aforesaid applications submitted by the plaintiff for interim injunction as well as application Exh. 6 for appointment of Receiver.

(2.) THE appellant-original plaintiff had instituted Special Civil Suit No. 163 of 2008 for accounts of the partnership firm - Sun Corporation against defendant nos. 1 to 7 being partners of Sun Corporation - partnership firm. A declaration is also sought in the said suit by the plaintiff declaring that remaining land of land bearing revenue Survey No. 2 situated at Sayajipura, Vadodara belonging to partnership firm of plaintiff and defendant Nos. 1 to 7, defendant Nos. 1 to 7 alone have no right and/or authority to sell transfer, alienate the said land. A declaration is also sought that the sale-deed executed by defendant Nos. 1 and 2 in favour of defendant No. 8 dated 29-3-2008 with respect to land bearing revenue Survey No. 5 be declared as illegal, without consideration and without authority. A declaration' is also sought that defendant Nos. 1 to 8 alone have no right or authority to execute any writing and/or sell, transfer aforesaid properties/land, and therefore, permanent injunction is sought against them from entering into any transaction and/or executing in writing to sell, transfer, alienate aforesaid land in any manner whatsoever. A declaration is also sought that as plaintiff is legal partner of partnership firm therefore, defendants have no right or authority to restrain/obstruct plaintiff from attending partnership firm's office and the place and/or obstructing plaintiff from verifying accounts of partnership firm and the business. Permanent injunction is also sought to the effect that as the plaintiff is legal partner of partnership firm, defendants be permanently restrained from obstructing plaintiff from attending office of the partnership firm and place of business of partnership firm and properties of the partnership firm and verifying the accounts of the partnership firm by the plaintiff. Permanent injunction is also sought against defendant No. 9-Union Bank of India restraining the said Bank from clearing cheque of partnership firm signed by any of the partners of partnership firm. It appears from the pleadings and the aforesaid plaint that it is the case on behalf of the plaintiff that he is partner of partnership firm - Sun Corporation along with defendant Nos. 1 to 7 and he has got 25% share in the profit and loss of partnership firm and rest of the defendants have 75% share in the profit and except one Hardik Navnitlal, rest of the partners have 75% share in loss. That Bank account of the partnership firm was to be operated with joint signature of any two of the partners. That during the course of the business of partnership firm, land bearing revenue Survey Nos. 2 and 5 situated at Sayajipura, Vadodara admeasuring 57668 sq. mtrs. has been purchased by the partnership firm on executing agreement to sell, development agreement, possession receipt etc. in favour of partnership firm. Huge amount has been paid to original land owners towards sale consideration by the said partnership firm. It is further averred in the plaint that since long defendant Nos. 1 to 7 are not furnishing any account of partnership firm though demanded time and again and are not permitting the plaintiff to attend office premises and business of partnership firm. Partnership firm had constructed residential houses, after completing the same in the land bearing Survey No. 2 and on selling the said residential house, true and correct account is to be furnished. However, defendant nos. 1 and 2 are administrating partnership firm and managing affairs of partnership firm as if they are the only partners. It is further averred in the plaint that so far as land bearing Survey No. 5 is concerned, defendant Nos. 1 and 2 have sold the said land in favour of defendant No. 8 by registered sale-deed dated 29-3-2008 for sale consideration of Rs. 2,19,90,000/- only against market price of land in question at Rs. 13,75,00,000/ -. Without consent of the plaintiff, defendant No. 8 had purchased the said property in collusion with defendant Nos. 1 and 2, therefore, it is contended that said registered sale-deed executed in favour of defendant No. 8 with respect to land bearing Survey No. 5 is bogus, without consideration and without authority, therefore, the plaintiff has instituted suit for aforesaid reliefs with aforesaid averments in the plaint. In the said suit, the plaintiff submitted application Exh. 5 for interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure restraining defendants from transferring, selling remaining land out of land being Survey no. 2 situated at Sayajipura, Vadodara and restraining defendant No. 8 from transferring, alienating and/or selling land bearing revenue Survey No. 5 situated at Sayajipura, Vadodara. Further injunction is also sought restraining defendant no. 7 from obstructing and/or restraining the plaintiff from attending office premises and business of the partnership firm and further restraining them from obstructing the plaintiff from verifying the accounts of the partnership firm. Further, injunction is also sought restraining defendant No. 9 from making any payment from the Bank account of the Sun Corporation. Plaintiff also submitted application Exh. 6 for appointment of Receiver. Said application Exhs. 5 and 6 were resisted by the defendants. It was contended on behalf of defendant Nos. 1 to 7 that as partnership firm is not registered partnership firm said suit by the plaintiff is not maintainable as per bar under Sec. 69 of the Partnership act (hereinafter referred to as 'the Act' ). It was contended on behalf of the defendants that so far as the plaintiff is concerned, he has already retired since 2002 after settling the accounts, and therefore, the plaintiff is not entitled to any relief as prayed for. It was also further submitted that so far defendant no. 1 is concerned, he has purchased disputed land on payment of sale consideration and that too after giving public notice and no objection was raised by the plaintiff at any time, and therefore, defendant No. 8 is bona fide purchaser of the disputed land in question being revenue Survey No. 5, and therefore, defendant No. 8 being purchaser may not be restrained from using and/or developing the land in question. Therefore, it was requested to dismiss application exhs. 5 and 6. The learned trial Court by impugned order dismissed both application Exhs. 5 and 6 by holding that said suit by the plaintiff is barred under Sec. 69 of the Act as partnership firm is not registered partnership firm and also on other grounds. Being aggrieved and dissatisfied with the impugned orders passed by the learned trial Court below Exhs. 5 and 6, the appellant-plaintiff has preferred present Appeal From Order and Civil Application therein for interim relief.

(3.) MR. Mihir Joshi, learned Senior Advocate appearing on behalf of the appellant-original plaintiff has submitted that the learned trial Court has materially erred in holding that suit filed by the plaintiff is barred under Sec. 69 of the act. It is further submitted that even the learned trial Court has materially erred in holding that defendant No. 8 is bona fide purchaser of land bearing revenue survey No. 5. It is submitted that against market value of Rs. 8 crores, property bearing revenue Survey No. 5 has been sold by defendant Nos. 1 and 2 in favour of defendant No. 8 for sale consideration of Rs. Rs. 2,19,90,000/- only and to that Rs. 1. 90 crores was to be paid in future therefore, considering above the learned trial Court ought to have held that sale-deed in favour of defendant no. 8 is prima facie without full consideration. Therefore, the learned trial Court ought to have granted injunction as prayed for. It is further submitted by Mr. Joshi, learned Senior Advocate for appellant that the learned trial Court has materially erred in holding that suit by the plaintiff is not maintainable and/ or barred under Sec. 69 of the Act. It is submitted that the learned trial Court has not properly appreciated and considered reliefs sought in the plaint/suit. It is further submitted that in the suit the plaintiff has also sought relief declaring sale-deed in favour of defendant No. 8 as illegal, without consideration and not binding to the plaintiff, and therefore, for such reliefs, it cannot be said that suit is barred under Sec. 69 of the Act. It is submitted that even in the written statement by the defendants, they have disputed existence of partnership firm and/or status of plaintiff as partner, and therefore, it cannot be said that suit filed by the plaintiff is barred under Sec. 69 of the Act. Mr. Joshi, learned senior Advocate has relied upon decision of the Hon'ble Supreme Court in the case of Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical Industries and Anr. reported in 2004 (13) SCC 750 and relying upon aforesaid decision, it is submitted that bar under Sec. 69 of the Act will not be applicable in the facts of the present case and suit in question. It is submitted that one has to consider prayers and reliefs sought in the plaint/suit. It is submitted that in the suit prayer of the plaintiff is with respect to declaration as narrated hereinabove, therefore, it cannot be said that suit barred under Sec. 69 of the Act. Therefore, it is submitted that the learned trial Court has committed error in not properly appreciating scope of Sec. 69 of the Act. Considering same along with reliefs sought in the plaint/suit and thereby the learned trial Court has committed error in not granting injunction as prayed for. Therefore, it is requested to allow present Appeal From Order.