BROADWAY CENTRE Vs. GOPALDAS BAGRI

JUDGEMENT

(1.) This suit has been brought by a registered partnership firm against one of its erstwhile partner for the relief of permanent injunction restraining the defendant and/or his agents and/or his representatives from disturbing and interfering with possession, occupation, administration and enjoyment of the property being the market in question and also decree for damages of Rs. 4,00,00,000.00 (four crores). The short fact in the plaint is briefly stated hereunder :

(2.) The property in question is Market being premises Nos. 14, 14/1, 14/2 and 14/3, Old China Bazar Street, Calcutta which situates at commercial hub in the city of Calcutta commonly known as 'Vikam Chand Market" (hereinafter referred to as the said property). The said property was one of the joint family properties of Bagri family. The defendant was one of the coparceners of the said Bagri family. Coparceners and/or co-sharers of Bagri family filed a Partition Suit being Suit No. 1736 of 1959 in the year 1959 in which the defendant was a party co-sharer and/or co-owner having undivided 1/5th share and the said property was one of the subject matters. It was decided by the Court that the said property would be allotted to one or two of co-sharer and indeed once it was allotted to one Chand Ratan Bagri and Uttam Kumar Bagri at a price of rupees 33 lakhs. However, the said order was set aside and ultimately this Hon'ble Court in the aforesaid partition suit directed to re-sell and/or re-allot the same at a greater price after the valuation being done. The defendant having no sufficient fund to bid in the aforesaid re-sale, approached one Gwal Das Karnani, one Ghanashyamdas Kankani and one Mahesh Mimani for the fund on his representation and/or assurance that he would form a partnership with the aforesaid three persons after the said property had been purchased and/or allotted in the possible re-sale. Accordingly, all the aforesaid three persons and the defendant agreed to form a partnership. So, the aforesaid three persons paid an aggregate sum of Rs. 48,79,999.00 to enable the defendant to buy up by way of allotment of the said property after adjustment of his share therein at a price of rupees 61 lakhs. The order of sale and/or re-allotment was passed in the partition suit on 25/08/1989. Simultaneous with purchase of the said property by and under a deed of partnership dated 15/09/1989 the aforesaid three persons and the defendant entered into a partnership in the name and style of Broadway Centre, viz., the plaintiff herein. The shares of the four partners were as follows :-

(3.) The defendant's share in the firm was valued having regard to his deemed capital contribution being the aforesaid amount of rupees 12 lakhs and odd and Ghanashyamdas Kankani contributed largest amount, viz., more than rupees 30 lakhs. After formation of the partnership, all partners acted upon accordingly for realization of rents, issues and profits for development of the market. However, mutual relation of defendant qua partner with other three partners was impaired and the defendant could not continue with this partnership firm and asked for retirement. So, on payment of a sum of Rs. 12,20,000.00 and another sum of Rs. 1,00,000.00 incurred by him on account of payment of rates and taxes to the Calcutta Municipal Corporation defendant retired from the said partnership. The deed of retirement was also executed on 4/04/1992 together with an affidavit of the defendant recording the factum of retirement which was duly notarized. The defendant while acting and retiring as a partner reflected the said fact in income tax returns for the assessment years 1989-90, 1990-91, 1991-92 and 1992-93 on which assessment orders were passed and upon retirement he also informed the respective tenants for attornment in name and favour of the plaintiff. The said factum of retirement was duly notified to the Registrar of Firms. In spite of all these, the defendant, however, is denying the plaintiff's right, title and enjoyment of the said property as owner thereof. On retirement of defendant, the aforesaid three persons are the present partners who have their shares re-allocated according to the capital contribution. In furtherance of this denial of the plaintiff's ownership, right of possession and enjoyment, the defendant has been instigating the tenants or occupants not to pay any rent, occupation charges and other charges and further allowed unauthorized persons to occupy quite good number of spaces and stalls of the said market. As a result thereof the plaintiff has suffered loss and damages that is assessed at rupees four crores and claims to recover the same from the defendant.