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ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.126 OF 2022
IN
SUIT NO.220 OF 2013
IN
IN
IN
IN
1a. Smt. Rekha Manohar Ghansharamani
Aged 74 years, Indian Inhabitant
Res. At Flat No.459, Rishi Dayaram Giddumal
Co-op.Hsg, Soc.Ltd. Navghar Road, Mulund (East) Mumbai-400081
1b. Smt. Sharadha Manohar Ghansharamani
Aged: 42 years, Indian Inhabitant, Res. At flat No. 459, Rishi Dayaram Giddumal
Co-op.Hsg, Soc.Ltd. Navghar Road, Mulund (East) Mumbai-400081 … Appellants
Vs.
1. Janardhan Prasad Chaturvedi
Aged about 58 years, Indian Inhabitant
Road No.1, JVPDScheme, Vile Parle (W), Mumbai-400059
2. Usha Dijendra Mitra
3. Maya Bank
4. Bimal Dijendra Mitra
5. Suraj Dijendra Mitra
6. Shama Dijendra Mitra
7. Bharat Dijendra Mitra
8. Milan Dijendra Mitra
9. Vishwanath Dijendra Mitra
10. MukeshDijendra Mitra
11. Anand Dijendra Mitra
12. Pranab Dijendra Mitra
Respondent Nos. 2 to 12 resident of 302, Ushasadan, Next to Bhavani Nagar, MarolMaroshi Road, Andheri (East), Mumbai-400059
13. J.P. Constructions, a partnership firm duly
Registered under the provisions of Partnership Act
Having its registered office at 703, Diwani Mahal,
Registered under the provisions of the Companies Act, 1956 and having its registered office at 521, Commerce
House, 140Nagindas Master Road, Fort, Mumbai 400023
15. Shri Anand Builders Pvt. Ltd
A company registered under the provisions of
Companies Act, 1956 and having its registered office at
Flat No.1, Ground Floor, Mistry Court, Dinshaw Wacha
Road, Mumbai-400020
16. Chandrashekhar Madhav Joglekar Aged 48 years, Occ:
Service res. At 5/B/2 Indian Airlines Colony Kalina, Santacruz (East) Mumbai-400029
17. Uttam Mulchand Amarnani, aged 44 yrs, Occ:
Business having address at Ground Floor, Mount Blanc, Carter Road, Jogger park, Bandra (W), Mumbai-400050
18. Roopishwardas Madhrani (deleted)
18a) Manoj Roop Madhrani, aged 45 years, 18b) Lalit Roop Madhrani aged 43 years, Both having address at A/123, Karachi Citizens CHS, New Link Road, Andheri (W), Mumbai400053
… Respondents
/Orig. Defendants
Adv. Priyanka Kothari a/w Megha Gupta, Vrinda Sharma i/by
Hedgehog & Fox LLP for Appellants.
Adv. Vivek Walavalkar i/by Ameya Mahajan for Respondent Nos.1 to 12.
Adv. Vivek Walavalkar a/w Amit Shroff and Ashna Shah i/by Amit
Shroff for Respondent No.14.
JUDGMENT
1. The present Appeal impugns an order dated 21st August, 2019 (“the Impugned Order”), by which, the Learned Single Judge has allowed three Notices of Motion taken out by Respondent Nos.[1] to 12, Respondent No.14 and Respondent No.17 respectively under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejecting the Plaint in the captioned (the said Suit).
2. Before adverting to the rival contentions, it is necessary to briefly set out the following facts. The Appellants claim to be the legal heirs and next of kin of one Manohar Daulataram Ghansharamani (“the Original Plaintiff”). The Original Plaintiff, one Dijendra C. Mitra (“D. C. Mitra”) and Respondent No.1 were the partners of Respondent No. 13 i.e., J. P. Constructions (the said firm) by virtue of a Partnership Deed dated 24th March 1987 (the Partnership Deed). It is not in dispute that the said D. C. Mitra passed away on 25th January, 1988. Respondent Nos. 2 to 12 are joined as the legal heirs and next of kin of D. C. Mitra. The Original Plaintiff has also passed away and the Appellants are the legal heirs and next of kin of the Original Plaintiff.
3. It is the case of the Original Plaintiff that a piece and parcel of land admeasuring 100 acres (“the said land”) situated at village Kasarwadawali, Ghod Bunder Road, Taluka and District Thane, consisting of two portions i.e., one admeasuring approximately 55 acres and the second admeasuring approximately 45 acres were the properties of the said firm. It is essentially the case of the Original Plaintiff that the said land was wrongfully/illegally sold and disposed off by the following Agreements for Sale viz., i. Agreement for Sale dated 31st July, 1987 entered into between J. P. Constructions (Respondent No.13) and Daryani Construction (Respondent No.14) by which approximately 55 acres of the said land was sold to ii. Agreement for Sale dated 14th November, 1988 entered into between J. P. Chaturvedi (Respondent No.1) and Shri Anand Builders Pvt. Ltd. (Respondent No.15) by which approximately 45 acres of the said land was sold to iii. Agreement for Sale dated 9th May, 1995 entered into between J. P. Chaturvedi (Respondent No.1) and Uttam Mulchand Amarnani and Roopishwardas Madhrani (Respondent Nos.17 and 18) by which approximately 45 acres of the said land was sold to Respondent Nos.17 and
18.
4. The Original Plaintiff filed the said Suit on 12th February, 2013 seeking inter alia the following reliefs viz., “a. that this Hon'ble Court be pleased to declare that alleged Agreement for Sale dated 31 July, 1987 executed by the Defendant No.1 and Late Shri.D.C. Mitra in favour of the Defendant No.14 Company for sale of the portion of the suit property admeasuring about 55 Acres situated at is bogus, illegal, unlawful and not binding on the Plaintiff; b. that this Hon'ble Court be pleased to declare that alleged Agreement for Sale dated 14th November, 1988 executed by the Defendant No.1 and Late Shri.D.C. Mitra in favour of the Defendant No.15 Company for sale of the portion of the suit property admeasuring about 45 Acres situated at is illegal, unlawful and not binding on the Plaintiff; c. that this Hon'ble Court be pleased to declare that alleged Agreement for Sale dated 9th May, 1995 executed by the Defendant No.1 in favour of the Defendant Nos. 17 & 18 for sale of the portion of the suit property admeasuring about 45 Acres is illegal, unlawful and not binding on the Plaintiff; d. that this Hon'ble Court be pleased to declare that that the Plaintiff is entitled 1/5th undivided share, right, title and interest in the suit property more particularly described in the Schedule annexed hereto being the Partner of the Defendant No.13 Partnership Firm. e. that this Hon'ble Court be pleased to declare that the Defendant No.13 Partnership Firm stood dissolved on or about 12th February, 2011 when the Defendant Nos.[1] to 12 received the Notice issued under Section 43 of the Indian Partnership Act, 1932 issued on behalf of the Plaintiff and be pleased to further order and direct the Defendants to deliver up 1/5th share of the Plaintiff in the suit property more particularly described in Schedule annexed to the Plaint by dissolving the Partnership Firm
5. Respondent Nos.[1] to 12, 14 and 17 thereafter took out the following three Notices of Motion being Notice of Motion No.477 of 2019, Notice of Motion No.1542 of 2018 and Notice of Motion No.672 of 2019 respectively seeking rejection of the Plaint under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”). The Notice of Motion came to be allowed by the Impugned Order, and it is thus the present Appeal has been filed.
6. Ms. Kothari Learned Counsel for the Appellants submitted that the Learned Single Judge had gravely erred in allowing the Notices of Motion by concluding that (a) the said firm stood dissolved on the death of D.C. Mitra i.e. in the year 1988 and (b) that the letters annexed at Exhibit S to the Plaint indicate that the Original Plaintiff was well aware of the said Agreements in the year 1996, if not earlier.
7. Ms. Kothari then submitted that the said firm did not stand dissolved on the death of the late D.C. Mitra as after his death his heirs i.e., Respondent Nos. 2 to 12 and Defendant No.1 carried on the business of the said firm. Ms. Kothari, while candidly, admitting that there was no specific averment in the plaint to this effect, invited our attention to paragraphs 16 and 27 of the Plaint from which she submitted it was implicit that the business of the said firm was carried on after the demise of D. C. Mitra. In support of her contention that the death of a partner would not cause dissolution of a partnership firm where the business of the said firm was continued by the legal heirs of the deceased partners, she placed reliance upon the following judgments; (1) Kesrimal Vs. Dalichand[1] (2) Chainkaran Sidhakaran Oswal Vs. Radhakisan Vishwanath Dixit and Ors.[2] (3) L. Shiam Lal Vs. Shiam Lal and Anr.[3] (4) Vallapareddy Sumitra Reddy and Anr. Vs. Kasireddy Laxminarayana Reddy and Ors.[4] Basis the above, Ms. Kothari submitted that the Original Plaintiff being under the bonafide belief that the business of the said firm was carried on after the death of late D.C. Mitra had validly issued the notice for dissolution of the said firm in the year 2011 and thus the Suit was not barred by limitation.
8. Ms. Kothari then invited our attention to Exhibit S to the Plaint, being two letters, both dated 1st May, 1996, one addressed by the Original Plaintiff to Respondent No.14 and the other to Respondent No.15. She pointed out from the said letters that the same did not in any manner establish that the Original Plaintiff was in the year 1996 aware of the mode of sale. She submitted that the Original Plaintiff had only in the year 2010 when copies of the said Agreements were made available became aware that the said Agreements were executed by Defendant No.1 and the late D. C. Mitra and not on behalf of the firm. Basis this, she submitted that the finding of the Learned Judge in paragraph 29 of the Impugned Order that “The pleadings vis-àvis letters at Exhibit S indicate that the plaintiff was well aware about the agreements at least in the year 1996 if not earlier” was patently incorrect. Basis this, she submitted that the Learned Single Judge had gravely erred by placing reliance upon the letters dated 1st May, 1996 to conclude that the Appellant was aware of the said Agreements in the year 1996 if not earlier.
9. Learned counsel then invited our attention to Article 58 and 59 of the Limitation Act, 1963 (“Limitation Act”) to submit that the period of limitation to cancel and/or set aside an instrument or decree for recession of a contract would be 3 years from when the right to sue accrues. In the present case, she submitted that since the Original Plaintiff obtained copies of the said Agreements for Sale for the first time only in the year 2010, the right to sue accrued to the Original Plaintiff only in 2010. In support of her contention that a Suit for declaration could be filed within three years from the date on which the cause of action arose/accrued under Article 58 of the Limitation Act, she placed reliance upon a judgment of Hon’ble Supreme Court of India in the case of Daya Singh & Anr. Vs. Gurdev Singh (Dead) by L.Rs. & Ors.5.
10. Ms. Kothari then submitted that limitation being a mixed question of fact and law, an opportunity ought to have been given to the Appellants to establish that the suit was within limitation by leading evidence in support of the same. She submitted that the Appellants had been denied this opportunity by the Impugned Order and thus submitted that the Impugned Order was bad in law and deserved to be set aside. Therefore, in the facts of the present case, the Appellants ought to be given an opportunity to prove the same by leading evidence and not as a preliminary issue. In support of her contention, she placed reliance upon the following judgments viz., (1) Mongia Realty and Buildwell Private Limited Vs. Manik Sethi[6] (2) Urvashiben and Anr. Vs. Krishnakant
(3) Chhotanben and Anr. Vs. Kiritbhai Jalkrushnabhai Thakkar and Ors.[8]
11. Basis the above, Ms. Kothari submitted that the Impugned Order was required to be set aside and the Appellants ought to be granted an opportunity to establish by leading evidence that the captioned Suit was not barred by limitation.
12. Per contra, Mr. Walavalkar, learned counsel appearing on behalf of Respondent Nos.[1] to 14 submitted that the Impugned Order had correctly been passed and there was gross delay in filing of the Suit.
13. He submitted that the Appellants contention that the business of the said firm continued after the death of D. C. Mitra was ex facie untenable. In support of his contention, he invited our attention to clause 279 of the Partnership Deed and pointed
9 27. In the event of insolvency or death of any of partners, this partnership shall be dissolved and the accounts of the partnership shall be made up and the remaining partners and the heirs and legal representatives of the deceased partner shall be entitled to such amount coming to their share in the capital, and the profit, if any and such amount shall be paid by the remaining partner to the legal heir and representatives of the deceased partners. If in the event of the death of the party of the Second Part if so desired by the other coparceners or members of the said J. P. CONSTRUCTIONS H.U.F. such coparceners or members of the said J. P. CHATURVEDI H. U.F. shall be taken as partners of this firm upon the same term and the said J. P. CHATURVEDI H.UF. as partner with the said rights in favour of such members or coparceners. In the event there are no members or coparceners of the said J.P.CHATURVEDI H.U.F. then in that event, the heir and the legal representatives of the said J.P.CHATURVEDI H.U.F. shall be entitled to the right created under this clause in their favour. out that the said clause in clear terms provided that on the death of any of the partners, the said partnership would stand dissolved and accounts of the partnership were to be made up as more particularly provided for therein. He then pointed out that the Appellant had in the Plaint itself made reference to the fact that the Appellant was aware that the said D. C. Mitra had passed away on 25th January, 1988. Basis this he submitted that on the death of D. C. Mitra i.e., on 25th January 1988 the said firm stood dissolved.
14. Mr. Walavalkar then without prejudice to the aforesaid submission pointed out that it was not even the case in the Plaint that the business of the firm was continued after the death of D. C. Mitra as was now being canvased across the bar. He therefore submitted that the question of the Original Plaintiff dissolving the firm by way of notice under Section 43 of the Partnership Act in the facts of the present case therefore did not arise. He submitted that the present partnership could never be construed as a partnership at will since the Partnership Deed specifically provided for the duration of the partnership as also for the determination thereof.
15. Mr. Walavalkar then invited our attention to Article 5 of the Limitation Act and pointed out therefrom that a Suit, for accounts or share of profits of dissolved the partnership firm was required to be brought within three years from the date of dissolution of the said firm. In the present case, he submitted that the present suit was filed almost 25 years after the death of
D. C. Mitra and was thus grossly barred by limitation. He then placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Commissioner of Income Tax, Central-I, Bombay Vs. Empire Estate, Bombay10 to submit that when there is no provision in the Partnership Deed for continuance of a partnership, then the said firm would stand dissolved on the death of one of the partners as per the provisions of Section 42 of the Partnership Act. He submitted that given that in the facts of the present case clause 27 of the Partnership Deed made specific provision for the duration/dissolution of the firm, the partnership was not one which was a partnership at will and hence the said partnership could never be construed as a partnership at will and hence Section 7 of the Partnership Act would be wholly inapplicable.
16. Mr. Walavalkar then submitted that the Appellants contention that they were not aware of the said Agreements was ex facie untenable. He submitted that (a) the letters dated 1st May, 1996 made implicitly clear that the Original Plaintiff was aware of the said Agreements since the Original Plaintiff had sought his share of consideration from the sale of the suit property (b) had neither disputed nor denied the sale and (c) had subsequently filed a criminal complaint based on cheating and forgery in the year 1996. He therefore submitted that the Appellants could not be heard to say that they first became aware of the said Agreements in the year 2010. He invited our attention to the Impugned Order and pointed out that the Learned Single Judge had therefore correctly held as follows, viz., “29. The pleadings vis-à-vis letters letters at Exhibit S indicate that the plaintiff was well aware about the agreements at least in the year 1996 if not earlier. The plaintiff was therefore required to seek declaration as regards these agreements within a period of three years from the date of knowledge of the agreements if not from the date of execution. The suit filed after a period of 17 years from the date of knowledge of execution of the agreements is ex facie barred by the law of limitation.” Basis the above, he submitted that the contention of the Appellant was wholly devoid of merit. He submitted therefore that the order had been correctly passed and the Appeal was thus required to be dismissed.
17. We have heard learned counsel for the parties as also perused the Plaint and annexures thereto as also the various judgments, upon which, reliance was placed and after a careful consideration of the same, find that the present Appeal must necessarily be dismissed for the following reasons; i. The Appellants’ contention that the partnership was one which continued after the death of D. C. Mitra is an ex facie untenable contention. Clause 27 of the said Partnership Deed to which there was no dispute expressly provides that the said firm would stand dissolved on the death of any of the partners. Hence, it is clear that as per the very Partnership Deed relied upon by the Original Plaintiff, the said firm stood dissolved on the death of the D. C. Mitra i.e. on 25th January, 1988. ii. The contention that the business of the said firm was continued after the death of D. C. Mitra and hence the partnership was continued is both factually and legally untenable one. We say factually because there is absolutely no case pleaded in the Plaint to this effect and legally even assuming the business of the firm was continued by the heirs of D. C. Mitra and Defendant No.1 the same would constitute a fresh partnership and not override the specific terms of the partnership Agreements as also the provisions of law i.e. Section 42 of the Partnership Act. iii. Crucially, in the facts of the present case it is important to note that the option of continuing the said partnership firm on the death of D. C. Mitra was given to only the heirs of D. C. Mitra. Therefore, reliance by the learned counsel for the Appellants upon Kesrimal (supra), Chainkaran Sidhakaran Oswal (supra), L. Shiam Lal (supra) and Vallapareddy Sumitra Reddy and Anr. (supra) would be of no assistance to the Appellants. iv. Also, the contention of the Appellants that it was only in the year 2010 that the Original Plaintiff for the first time received copies of the said Agreements for Sale from which the Original Plaintiff became aware of the mode of sale is also equally untenable. Firstly, though it was argued extensively that it was only in the year 2010 that the Original Plaintiff became aware of the ‘mode of sale’, we find no such specific case pleaded in the Plaint. Secondly, a perusal of the letter dated 1st May, 1996 addressed to Respondent No.15 specifically makes clear that the Original Plaintiff was aware that Respondent No.1 had claimed himself to be proprietor of Respondent No.13. Such contention could never have been taken if the Original Plaintiff did not have a copy of and/or was not aware of the said Agreements in the year 1996, if not earlier. Thus, it is not open to the Appellants to now contend that the Original Plaintiff was not aware or did not have a copy of the said Agreements prior to 1996. v. Also, we must note that the letters dated 1st May, 1996, specifically state that the Original Plaintiff would adopt legal proceedings in the event Respondent Nos.14 and 15 did not give the Original Plaintiff his share in the sale proceeds from the suit land. However, despite this the Original Plaintiff admittedly, did not take any legal proceedings/action for recovery of his share of the sale proceeds assuming he had such share but only filed a complaint inter alia for cheating and forgery etc. There is absolutely no reason given whatsoever as to why the Original Plaintiff did not institute a Suit for recovery of his share from the sale of the approximately 55 acres of land pursuant to what had been stated in the said letter dated 1st May, 1996. Hence, we find the Learned Single Judge is absolutely correct in observing in paragraph No.29 of the Impugned Order that the Original Plaintiff was aware about the said Agreements at least in the year 1996 if not earlier and therefore the judgments in the case of Mongia Realty and Buildwell Private Limited (supra), Urvashiben and Anr. (supra) and Chhotanben and Anr. (supra) are of no assistance to the Appellants. vi. In addition to the above, in the present case it is crucial to set out the case pleaded in the Plaint as to when according to the Original Plaintiff the cause of action arose. A plain reading of paragraph 41 of the Plaint sets out that according to the Original Plaintiff the cause of action arose on multiple dates. The dates according to the Original Plaintiff when the cause of action arose commenced in 1987 and continued upto 2011. The Original Plaintiff having accepted that the cause of action arose in the year 1987 has failed to even remotely plead as to how the said cause of action was a continuous one. Crucially, the Original Plaintiff has in paragraph 41 also specifically pleaded that the cause of action arose on 31st July, 1987 and 14th November, 1988 i.e. dates of execution of two of the three Agreements of which now cancellation has been sought. Hence, on the Original Plaintiff’s own showing and a plain reading of paragraph 41 of the Plaint the Suit is ex facie barred by limitation. Paragraph No.41 of the Plaint reads thus;
18. Hence, the Impugned Order is correctly passed. There is no infirmity in the Impugned Order.
19. The Appeal is dismissed. (ARIF S. DOCTOR, J.) (CHIEF JUSTICE)