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HIGH COURT OF DELHI
JUDGMENT
MR. AMIT MEHENDRU ..... Petitioner
Advocates who appeared in this case:
Ms.Jahanvi Garg, Advocates For the Respondent : Mr. Sudhir Gupta, Adv. for R-1
Mr. Lalit Gupta, Mr. Siddharth Arora and and Mr.Gaurav Kumar, Advocates for R-2
1. With the consent of parties, petition is taken up for consideration today.
TUSHAR RAO GEDELA, J. (ORAL)
2. Mr. Garg, learned counsel for the Petitioner challenges the order dated 03.09.2021 passed by the learned Trial Court disposing of the application under Order XI Rule 2 and 14 CPC seeking directions to the CM(M) 209/2022 2 Respondents to produce statement of account and other documents of proprietorship concern namely M/s. Highway Motors and Traders.
3. Mr. Garg by way of the present petition submits that by virtue of Will dated 09.01.2016, late father Sh. Inder Mohan Mahendru had bequeathed amongst other properties, the subject shop and claims that the subject shop was bequeathed alongwith the business rights.
4. Learned counsel draws the attention to para 13 of the suit filed by him before the learned Trial Court to submit that the claim in the suit is not based only on the unauthorised and illegal occupation of the subject property but also mesne profit to be calculated on the basis of the accounts of the profits made by the proprietorship concern, M/s. Highway Motors and Traders. He thus submits that the direction as sought before the learned Trial Court under the application under Order XI Rule 2 and 14 CPC was predicated on this issue.
5. Mr. Gupta, learned counsel for Respondent No.1 draws the attention of the Court to page 117 of the paper book, which is the Will dated 09.11.2016 and especially to second para of page 119 of the paper book whereby the bequeath of the subject shop amongst other properties was demised unto the Petitioner.
6. Mr. Gupta submits that on a plain reading and without prejudice to his rights and contention, the interpretation as sought by Mr. Garg cannot be countenanced. Mr. Gupta submits that although he disputes the validity and authenticity of the Will, however, even if for the sake of arguments the contents of para 2 at page 119 is taken at its face value, it could at best give only rights over the property and not the business.
7. Mr. Gupta, learned counsel for Respondent No.1, further submits CM(M) 209/2022 3 that the devolution of business rights is conspicuous by its absence in the entire Will, therefore, the impugned order as passed by the Trial Court is unassailable.
8. This Court has considered the rival contentions of both the parties, examined the Will as well as the plaint as also the relief sought by the Petitioner before the learned Trial Court, specially relief (d) whereby the Petitioner/plaintiff is seeking mesne profit on the earnings/gains from the proprietary business namely M/s. Highway Motors and Traders is sought.
9. Upon consideration of the entire conspectus of the facts as arisen in the present petition as also the arguments put forth by both the parties, this Court is of the opinion that interest of justice would be sub-served if Respondent No.1 is directed to preserve the record of accounts for the relevant period i.e. period after 27.11.2016 till the pendency of the suit. It is made clear that the requirement to produce these documents before the learned Trial Court will arise only as and when the learned Trial Court deems it necessary for Respondent No.1 to prove during or after trial, or after evidence is completed by both the parties.
10. The petition is disposed of in above terms.
TUSHAR RAO GEDELA, J DECEMBER 06, 2022