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HIGH COURT OF DELHI
Date of Decision: 21st March, 2023
SMT RUBY THUKRAL & ANR. ..... Plaintiffs
Through: Ms.Manpreet Kaur, Adv.
Through: Mr.Sanjeev Kumar, Mr.Anshul Sehgal & Mr.Divyanshu Jain, Advs.
JUDGMENT
1. This application has been filed by the plaintiffs praying for an amendment to the plaint.
2. The plaintiffs have filed the present suit, inter alia, praying for the following reliefs:- ―(a) Pass a decree of declaration thereby declaring the Plaintiffs to be rightful and legal owners of 1/3rd share each in the assets mentioned in the schedule of assets; (b) Pass a decree of partition of the in the estate of Sh. Ram Pal Arora, by metes and bounds;
(c) Pass a decree of permanent injunction restraining the Defendant, their legal heirs, agents, servants, employees etc. from selling, alienating, assigning, parting, mortgaging or creating any third part interest in respect of the suit property;
(d) Costs of the suit be awarded to the Plaintiff;‖
3. In the plaint, it is averred that the parties herein are the children of late Smt. Savita Rani, who passed away on 23.11.2004, and late Shri Ram Pal Arora, who passed away on 11.08.2018. It is claimed that late Shri Ram Pal Arora died intestate and the parties herein being Class-I Legal Heirs would inherit his properties in equal share. The plaintiffs have, therefore, prayed for a Decree of Partition.
4. In the written statement filed by the defendant, the defendant, inter alia, raised a plea of suppression of Memorandum of Family Settlement dated 26.08.2018 (in short ‘Family Settlement’) executed by the plaintiffs, relinquishing their rights in the partnership firm, namely, M/s Shiv Das & Sons of which late Shri Ram Pal Arora was a partner. It was further averred that the plaintiffs had expressed a desire not to continue as partners in the said firm and, therefore, had also executed the Deed of Partnership as also a Deed of Retirement, both dated 27.08.2018, from the partnership firm.
5. The plaintiffs have, thereafter, filed this present application, now seeking to, inter alia, challenge the alleged Family Settlement and the Retirement Deed and to contend that the same were got executed from the plaintiffs by playing fraud and by misrepresentation. The plaintiffs seek to add the following prayers to the plaint:- ―bX[1]). Pass a decree of declaration thereby declaring the documents i.e. Memorandum of Family Settlement dated 25.08.2018 and Retirement dated 27.08.2018 as null and void and not binding on the plaintiffs; bX[2]). Pass a decree of declaration in favour of the plaintiffs and against the defendant, thereby declaring the plaintiffs as partners of firm namely M/s Shiva Associates to the extent of 13% each. bX[3]). Pass a decree of declaration in favour of the plaintiffs and against the defendant, thereby declaring the plaintiffs as partners of firm namely M/s Shiv Das & Sons to the extent of 15% each.‖
6. The learned counsel for the plaintiffs submits that though in the reply dated 11.09.2021 to the Legal Notice of the plaintiffs dated 20.08.2021, the defendant had pleaded about the plaintiffs having executed a Memorandum of Family Settlement, in spite of the plaintiffs, by way of the rejoinder notice dated 28.09.2021, seeking a copy thereof, the defendant did not supply the same to the plaintiffs. She submits that, therefore, requisite pleadings and prayers with regard to the Family Settlement and the alleged Retirement Deed could not be made in the plaint.
7. She further submits that, in fact, in the reply to the legal notice, the defendant did not even refer to any alleged Retirement Deed or Partnership Deed having been executed by the plaintiffs. She submits that it is only when these documents were filed along with the written statement filed by the defendant that the plaintiffs became aware of the nature of the documents got executed from them, and are, therefore, seeking to challenge the same by way of the present amendment application.
8. On the other hand, the learned counsel for the defendant submits that the plaintiffs were fully aware of the execution of the Memorandum of Family Settlement as also the Deed of Retirement by them and, in fact, in their plaint itself admit to the execution of these documents. In spite of the same, no challenge to these documents was laid by the plaintiffs in the plaint as originally filed.
9. He further submits that in case the plaintiffs are to now challenge the Memorandum of Family Settlement, this Court would lack territorial jurisdiction to entertain the said challenge inasmuch as the Memorandum of Family Settlement records that any dispute between the parties can be adjudicated only by the Courts at Gurugram, Haryana.
10. He submits that by way of the present amendment, the plaintiffs would, in fact, change the very nature of the suit inasmuch as now a claim has been raised with respect to the partnership firm. He submits that in terms of Section 2(1)(c)(xv) of the Commercial Disputes Act, 2015, any dispute with regard to the Partnership Agreement is a Commercial Dispute.
11. He further submits that in the reply to the legal notice, reference was made by the defendant also to the fresh Partnership Deed and the Retirement Deed, both dated 27.08.2018, having been executed by the plaintiffs. However, even in the rejoinder notice dated 28.09.2021, the plaintiffs did not even seek copies of these documents from the defendant nor laid any challenge to the same in the present suit. He submits, that therefore, non-supply of these documents by the defendant cannot give an excuse to the plaintiffs for having not challenged the same in the original Suit.
12. I have considered the submissions made by the learned counsels for the parties.
13. It is not denied that the plaintiffs in their rejoinder notice dated 28.09.2021 addressed to the defendant prior to the filing of the present suit had sought copies of the alleged Memorandum of Family Settlement from the defendant. Though sufficient time thereafter lapsed before filing of the present suit, the defendant did not provide a copy thereof to the plaintiffs. The plaintiffs, therefore, in the suit as filed have pleaded as under:- ―16. That after the demise of father, Defendant is controlling the estate of late Sh. Ra..Pal Arora. That a few months after the days of late father, the Defendant visited the Plaintiff no. 1 at her residence and showed some documents stating that some compliances need to be done and Plaintiffs signatures are required upon them. That Plaintiff no. 1 in love and affection, trusted his words signed those documents. xxxx
22. That the Defendant in the said reply notice has also alleged that the Plaintiffs have foregone their share vide family settlement dated 25.08.2018 and stating that by virtue of the said family settlement Plaintiffs are not entitled to any share.
23. That apart from above, with respect to the share in Ms/ Shiva Associates, Defendant has alleged that the Plaintiff had formerly joined the said firm as partner vide partnership dated 27.08.2018 and since was having no concern with the firm business. Thus executed a retirement deed on the 27.08.2018.
27. Therefore, the Plaintiffs sent the rejoinder notice denying all the allegations made by the Defendant in his reply and also asked for the disclose of all the documents that were mentioned by the Defendant in his reply and also called out to disclose documents related to late father which are now in defendant's possession.
28. That the Plaintiffs while denying the allegations and contentions made in reply notice dated 11.09.2021 by the Defendant, Plaintiffs sent rejoinder notice dated 28.09.2021 Plaintiffs also specifically denied the existence of any family settlement and asked the defendant to disclose/showcase the following documents:
I. Document dated 25.08.2018 stated to be family settlement by your client in your Reply.
II. Partnership deed dated 01.04.2010 with respect to "M/s Shiv Dass & Sons.
III. Accounting statements & Balance
IV. Personal ITRs of assessment year 2016-
V. Sale deed dated 17.10.1981 with respect to property bearing no. 9662-B, Islam Ganj, Library Road, Azad Market, Delhi- 110006
VI. Gift Deed dated 12.12.2005 with respect to property bearing no. 26, Block- B-2, Safdarjung Enclave, New Delhi.
VII. Sale deed dated 29.09.1993 with respect to property at South City-1,
VIII. Documents with respect to property at
VI. Documents of Property at C-8, Sector 6,
IX. Documents relating to any other property, holding & investment owned by late Sh. Ram Pal Arora.
29. That till dated Defendant has failed to share any of such documents. Therefore, in absence of the same it is deemed that the defendant's intentions have turned malafide in order to grab the share of the Plaintiff.‖
14. The defendant along with the written statement filed the documents, including the Memorandum of Family Settlement, the alleged Partnership Deed, and the alleged Retirement Deed. The plaintiffs have, therefore, filed the present application seeking amendment to the plaint, inter alia, to challenge the Memorandum of Family Settlement and the Retirement Deed.
15. As the suit is at a preliminary stage, in order to bring about a full and effective adjudication of all the disputes between the parties, in my opinion, the plaintiffs can be allowed to amend the plaint. This, however, shall be without prejudice to the rights and contentions of the defendant to contend that on merit any prayer made by the plaintiffs is not maintainable or is otherwise liable to be rejected.
16. As far as the plea of the learned counsel for the defendant that the Memorandum of Family Settlement vests exclusive jurisdiction in the Courts at Gurugram is concerned, in my view, as the validity of the Memorandum of Family Settlement itself is disputed by the plaintiffs, it cannot be said that the present suit would not be maintainable before this Court, if it otherwise has jurisdiction. It is relevant to note that but for the clause in the Memorandum of Family Settlement vesting exclusive jurisdiction in Courts at Gurugram, the defendant does not dispute that this Court would otherwise have territorial jurisdiction to entertain the present Suit.
17. The submission of the learned counsel for the defendant that the amendment would change the nature of the suit inasmuch as it would now become a Commercial Dispute as defined under Section 2(1)(c)(xv) of the Commercial Courts Act, 2015 also does not impress me. The suit remains one seeking partition of the properties left behind by the father of the parties- Late Shri Ram Pal Arora, including his share in the partnership firm.
18. Section 2(1)(c)(xv) of the Commercial Courts Act defines the term ‘Commercial Disputes’ as under:- ―2. Definitions.—(1) In this Act, unless the context otherwise requires,–– xxxxx (c) ―commercial dispute‖ means a dispute arising out of–– xxxxx
(xv) partnership agreements;‖
19. For a commercial dispute, therefore, it has to be a dispute arising out of a Partnership Agreement. In the present case, the dispute raised by the plaintiffs is, even after the amendment, not one arising out of the Partnership Agreement but as a claim of the Legal Heir due to the death of the father of the parties, that is, Late Shri Ram Pal Arora.
20. In view of the above, the present application is allowed. The amended plaint is taken on record. It is, however, again clarified that all objections of the defendant on the merits of the present suit after amendment remain open.
21. The application stands disposed of in the above terms. I.A. 14863/2022
22. By this application, the defendant, placing reliance on the Memorandum of Family Settlement, prays that as exclusive jurisdiction has been vested in the Courts at Gurugram, Haryana, this Court would lack territorial jurisdiction.
23. As noted hereinabove, the plaintiffs are challenging the validity of the Memorandum of Family Settlement contending therein that the same has been got executed from them by the defendant by exercising fraud and misrepresentation. Once such a plea has been raised, it cannot be said that the plaintiffs would still be bound by the terms of the said Family Settlement. As held in the judgement of this Court in Boston Scientific International B.V v. Metro Hospital, 2007 SCC OnLine Del 6, for the purposes of deciding an application under Order VII Rule 10 of the CPC, the Court has to look only at the averments in the plaint and not the defence of the defendant. As noted herein above, but for the clause in the Memorandum of Family Settlement vesting exclusive jurisdiction in the Courts at Gurugram, the defendant does not dispute that this Court would otherwise have the requisite territorial jurisdiction to try the present Suit.
24. Accordingly, the present application is rejected. CS(OS) 113/2022 & I.A. 3235/2022
25. The defendant shall be at liberty to file an amended written statement within a period of four weeks from today along with any further documents that the defendant may wish to rely upon in view of the amendment being allowed. The plaintiff shall file replication thereto within a period of four weeks of the receipt of a copy of the written statement.
26. List before the learned Joint Registrar (Judicial) on 12th July, 2023.
NAVIN CHAWLA, J MARCH 21, 2023