BHARAT NATHALAL KANSARA Vs. PRAFUL NATHALAL KANSARA

JUDGEMENT

(1.) The Plaintiff has filed the present suit for a money decree in the sum of Rs.1.15 crores together with pendente lite and post decree interest at the rate of 18% per annum. This amount (together with Rs.10 lakhs allegedly paid by the Defendants to the Plaintiff) is said to represent the Plaintiff's 22.5% undivided share, right, title and interest in the suit property. This share, right, title and interest was surrendered by the Plaintiff to the Defendants under a memorandum of understanding (MOU dated 22 September 2001). It is the Plaintiff's case that though the MOU did not refer to any consideration to be paid by the Defendants to the Plaintiff, there was an oral agreement between the parties to pay a sum of Rs.2600/- per sq.ft. to the Plaintiff, aggregating to Rs.1.25 crores. The prayer for money decree is for recovery of this sum after adjusting Rs.10 lakhs allegedly paid by the Defendants. The Plaintiff has, in the alternative, prayed for a declaration that the MOU recording the Plaintiff's surrender of his right, title and interest in the suit property, and which purports to be without any consideration, is bad in law and liable to be cancelled. In the event of the court decreeing the suit in terms of this alternative prayer, the Plaintiff has sought further directions against the Defendants for handing over vacant and peaceful possession of this share, right, title and interest by making over the area referred to in the plaint to the Plaintiff.

(2.) The Plaintiff's case may be briefly stated thus: The Plaintiff claims to be an erstwhile partner of the firm of M/s.Metal Press India, formed in the year 1966, whose partners were family members of one Nathalal Kansara (since deceased). The Plaintiff and the Defendants are sons of deceased Nathalal. Apart from the Plaintiff and the Defendants, the other partners of Metal Press India were Nathalal himself and one Virendra Nathalal Kansara, who is Nathalal's son from his earlier wife. It is the Plaintiff's case that just before the Plaintiff's retirement from the firm of Metal Press India, the Plaintiff had 22.50% share in the firm. The firm was carrying on business of manufacture and sale of brass, copper and stainless steel utensils and running a workshop. This business was carried on in a plot of land leased by the firm from the State Government. This plot together with structures standing thereon is the suit property. It is the Plaintiff's case that the Plaintiff retired from the partnership of Metal Press India after execution of an MOU in the year 1993. The MOU was said to be dated 18 October 1993. (There is some dispute between the parties as to the execution of this MOU; whereas, according to the Plaintiff, the MOU was executed on 18 October 1993, that is to say, the same date on which the Plaintiff retired from the partnership firm, according to the Defendants, the MOU was executed on 16 October 1993, that is to say, prior to the Plaintiff's retirement from Metal Press India.) It is the Plaintiff's case that by this MOU, the suit plot of land was divided between Nathalal and his children, who were just prior to that date partners of Metal Press India, in the following manner:

(3.) The suit is contested by the Defendants mainly on two grounds. Firstly, it is submitted that the so-called oral agreement having been entered into at the time of execution of the MOU of 22 September 2001, the suit, filed on 20 February 2009, is clearly barred by the law of limitation. It is submitted that there is neither a proper plea nor proof of part payment of any amount, whether of Rs.8 lac, said to have been paid at the time of execution of the MOU, or Rs.5 lac, said to have been paid sometime in 2004, by the Defendants and deceased Nathalal to the Plaintiff; and even if such payment is proved, more than three years had elapsed after such payment (said to be made around 2004) before the present suit was filed. Secondly, it is submitted that the Plaintiff has no case even on the merits of his claim. First of all, it is submitted, the Plaintiff has not proved his possession of 4786 sq.ft. of area in the suit property. In any event, such possession, as the Plaintiff may have had, was surrendered by him to the reconstituted firm of Metal Press India on execution of the second MOU on 22 September 2001. It is submitted that the MOU of 22 September 2001 does not provide for any payment to the Plaintiff in consideration. It is submitted that the Plaintiff has not been able to establish any oral agreement as of the date of the MOU of 22 September 2001 for payment towards surrender of the area in the suit property in his possession. Insofar as the Plaintiff's alternative case is concerned, it is submitted that the surrender of area recorded in the MOU cannot be said to be void for want of consideration. It is submitted that the accounts between the parties were duly settled and the Plaintiff had duly received his share in the partnership of Metal Press India upon his retirement and the Plaintiff's possession of the area of 2700 sq.ft. post his retirement from the firm was merely a permissive possession gratuitously given to him and he did not have any property in this area. It is submitted that the Plaintiff had already shifted from this area and his surrender recorded on 22 September 2001 did not call for any consideration. Both alternative prayers of the Plaintiff are, accordingly, said be devoid of any merit.