BRESCON PARTNERS LLP Vs. ASHOK KUMAR AGARWAL

JUDGEMENT

(1.) The plaintiffs have filed the suit claiming, inter alia, a decree for recovery of money from the defendant nos. 1 to 10 jointly and severally, as well as a declaration that the defendant nos.11 to 14 are bound by their recording and acceptance of the nomination of the plaintiff no.1 to obtain conveyance of the two flats, being Unit No. 14A and 15A situate at 21B, U.N. Brahmachari Street, Kolkata- 700 016 (hereinafter referred to as "the said flats").

(2.) It is the plaint case that the plaintiff no. 1 is a limited liability partnership firm of which the plaintiff nos. 2 and 3 are the designated partners. The plaintiff no. 3 is the daughter of the plaintiff no.2. The plaintiff no.4 and proforma defendant are private limited companies controlled by the plaintiff no.2. The defendant no.1 is the father of the defendant no.2 and they are in control of the defendant no.4 is a limited liability partnership firm of which the defendant nos. 1 and 3 are the designated partners. The defendant no.5 is private limited company owned and controlled by the defendant nos. 1 and 2. The defendant no.7 is the brother of the defendant no.6 and the defendant nos. 8, 9 and 10 are companies controlled by the defendant nos. 6 and 7. The defendant nos. 11 to 13 companies, are the owners of the property situated at premises no. 21B, Dr. U.N. Brahmachari Street, Kolkata - 700 016 (hereinafter referred to as "the said premises"). The said defendants have engaged the defendant no.14, a limited liability firm of which the defendant nos. 1 and 3 are the partners, to develop the said premises. The defendant nos.15, 16 and 17 are the companies with whom the defendant No. 1 has made various inter-corporate deposits.

(3.) It is the case of the plaintiffs that acting on the representations made by the defendant no.1 and 6, the plaintiff no.2 through the proforma defendant and the plaintiff no.4 paid a sum of Rs. 34,12,50,000/- to the defendant Nos.1 and 4 to acquire 1,37,000 shares in and of a company called Intimate Fashions India Limited (hereinafter referred to as "the said Intimate Fashions"). The defendant nos.1 and 6 caused issuance of share certificates of 68,500 shares of the said Intimate Fashions in favour of the proforma defendant and the plaintiff no.4 respectively. The plaintiff no.1 obtained transfer of 68,500 shares of the said Intimate Fashions from the proforma defendant upon payment of the price and the share certificates were also issued in the name of the plaintiff no.1.Subsequently, however, the plaintiffs discovered that there is no existence of the said Intimate Fashions and all the share certificates issued in its name in favour of the plaintiff nos. 1 and 4s are all fake.. According to the plaintiffs these were the fraudulent acts of the defendant nos. 1 and 6.Thus, the plaintiffs have claimed refund of the said sum of Rs.34, 12,50,000/- from the defendant no.1. The defendant no.1 acknowledged his liability to repay the said sum of Rs.34, 12,50,000/- to the plaintiff no.2. The defendant no.1 further accepted his liability to pay Rs.3, 05,00,000/- to the plaintiff no.2 on account of compensation. The defendant no.1 issued and handed over seven post-dated cheques for an aggregate sum of Rs.21, 67, 50, 000/- to the plaintiff no.2 drawn in favour of the petitioner nos. 1 and 4, respectively for repayment his dues to the said plaintiffs. Out of the said seven post dated cheques, three cheques were encashed on presentation, but the balance of four cheques for Rs.17, 67, 50, 000 were dishonoured on presentation. Out of the total amount of Rs.37,17,50,000/- the defendant 1 has paid Rs.14,75,00,000 to the plaintiffs and there remains an amount of Rs.22,42,50,000 still to be paid by the defendant no. 1 to the plaintiff nos. 1 and 4.