9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (3) TMI 1072 - HC - Indian LawsSeeking amendment of the plaint in the Chamber Summons and appointment of Court Receiver - injunction restraining from creating 3rd party rights in respect of the Transfer of Development Rights (TDR) on the suit property - utilising and loading the TDR on any property - Whether the Plaintiff's action, followed upon dissolution of the Firm, the notice of which came to be given upon the Development Rights Certificate (DRC) being issued by the MMC, but later not pressed for 2 years could be so tainted with delay as to disentitle the Plaintiff to any equitable relief? - unregistered agreement for transfer/sale of Transferable Development Rights (TDR) - TDR being an immovable property - Respondent No.3 claims to have purchased the TDR from Respondent No.1 through its sister Concern - relief sought for by the Plaintiff is two fold - Against the Defendant and Against Respondent No.3. an order of injunction restraining the Defendant as well as the Respondent s from creating 3rd party rights in respect of the Transfer of Development Rights (TDR) on the suit property, utilising and loading the TDR on any property and acting pursua nt to the agreement s entered into by and between the Defendant s and the Respondent s in respect of TDR and for an order against the Defendant to deposit monies received under the transaction relating to the TDR by him. HELD THAT - In the case of Sikandar Vs. Bahadur 1905 (1) TMI 1 - ALLAHABAD HIGH COURT considered in the case of Chheda Housing 2007 (2) TMI 664 - BOMBAY HIGH COURT it has been held a lease of more than 1 year of a right to collect market dues upon a piece of land, being a benefit which arises out of the land would fall within the purview of Section 3 of the Registration Act, 1877 and must, therefore, be made by a registered instrument . The consequence of the TDR being an immovable property would be the requirement of registration upon its transfer. The TDR was issued in the name of the Respondent No.2 by the MMC. Even prior to its issue, the Respondent No.2 had claimed the TDR. The Decree on Admission obtained by the Firm of the Plaintiff and the Defendant against Respondent No.2 in Suit No.6736 / 1 999 was to be satisfied partly by payment of money and partly by the agreement to sell the TDR to the Partnership Firm. The TDR is transferred to the Defendant as a partner of the Partnership Firm or to the Firm itself by Respondent No.2 under the Consent Decree for consideration. The Consent Decree is not registered. The agreement between the Defendant and Respondent No.1 as well as between Respondent No.2 and Respondent No.3 as also between Respondent No.1 and Respondent No.3 all dated 19th January 2007 have all not been registered. None of these parties including the Plaintiff, therefore, can base its claim in an action in law upon the unregistered agreement to transfer TDR which is a benefit arising from an immovable property and consequently immovable property itself. The reliefs sought under prayers of this Chamber Summons need not be granted. The Respondents are neither necessary or proper parties to the suit which is a suit for dissolution of the suit Partnership Firm and its accounts. No reliefs can be passed against the Respondents for want of registration of the Consent Decree itself. Consequently reliefs under prayers are refused. The express admission of the Defendant about the Partnership Firm, its dissolution and the account relating to the main, and only one, asset of the Partner ship requires Judgment on Admission itself to be passed under the provisions of Order XII Rule 6 of the C.P.C. Consequently at least the preliminary decree for dissolution of the suit Partnership Firm under the provisions of Order XX Rule 15 of the C.P.C is forthwith required to be passed. The shares of the Plaintiff as well as the Defendant s are required to be declared. They admittedly share 50% in the profits and losses of the Firm. It is declared that the Partnership Firm stood dissolved on and from 11th January 2007, the date of the notice of dissolution and the date from which the notice in the official gazette came to be made affective. Accounts of the suit Firm shall, therefore, be taken. The suit is referred to the Commissioner for taking account s under Order XXVI Rule 2 of the C.P.C with directions under Order XXVI Rules 11 and 12 of the C.P.C. The Defendant who has alone been in management of the suit Partnership Firm shall produce the bank accounts as well as any other accounts kept in the normal course of the conduct of the Partnership business by him before the Commissioner for taking accounts. 1) The Defendant shall show all the documents relating to the Creditors of the Firm. 2)The Defendant shall give inspection and xerox copies of these document s to the Plaintiff. 3)The Commissioner for taking account s shall ascertain the genuine and bonafide Creditors, if any, of the Firm. 4)The Commissioner shall allow the parties to lead oral and documentary evidence as required and desired by each of them. 5)The Commissioner shall make his report of the account s of the Firm to the Court upon the evidence. 6)The Defendant shall deposit the amount admittedly received by him in Court within 4 weeks from today. The Prothonotory and Senior Master of this Court to invest the said amount in any Nationalised Bank intially for a period of 37 months. Chamber Summons is disposed of accordingly. Preliminary Decree is passed in the suit accordingly. Suit to be placed on board for final decree upon the Commissioner making his report.
Issues Involved:
1. Amendment of the plaint 2. Appointment of Court Receiver and injunction 3. Dissolution of the Partnership Firm 4. Transfer of Development Rights (TDR) 5. Deposit of consideration received from the TDR transaction 6. Delay in seeking reliefs 7. Registration of TDR agreements 8. Taking accounts of the dissolved Partnership Firm Issue-wise Analysis: 1. Amendment of the plaint: The plaintiff sought to amend the plaint to include additional reliefs. This request was part of the Chamber Summons. 2. Appointment of Court Receiver and injunction: The plaintiff sought the appointment of a Court Receiver and an injunction to prevent the defendant and respondents from creating third-party rights in the TDR on the suit property. The plaintiff also requested an order for the defendant to deposit monies received from the TDR transaction. 3. Dissolution of the Partnership Firm: The plaintiff dissolved the Firm on 11th January 2007 and issued a public notice. The defendant sold the TDR immediately after the dissolution notice. The court declared the Partnership Firm dissolved from 11th January 2007 and ordered that accounts of the firm be taken. 4. Transfer of Development Rights (TDR): The TDR was initially agreed to be transferred to the Partnership Firm under a Consent Decree dated 14th September 2000. The defendant sold the TDR to respondent No. 1 without the plaintiff's consent. The court noted that the TDR is considered immovable property, requiring registration for its transfer. 5. Deposit of consideration received from the TDR transaction: The defendant admitted to receiving Rs. 65,24,198/- from the TDR transaction. The court ordered the defendant to deposit this amount in court within four weeks. 6. Delay in seeking reliefs: The court noted that the plaintiff delayed seeking reliefs against respondent No. 3, who had already utilized the TDR and completed construction. The court referenced the principles from the case of William Brunton Vs. John E.C. Brunton, AIR 1925 Madras 360, regarding the consideration of the length of delay and the nature of acts done during the interval. 7. Registration of TDR agreements: The court held that the TDR, being immovable property, required registration for its transfer. None of the agreements related to the TDR, including the Consent Decree, were registered. Consequently, no legal claim could be based on these unregistered agreements. 8. Taking accounts of the dissolved Partnership Firm: The court appointed a Commissioner to take accounts of the dissolved Partnership Firm. The defendant, who managed the firm, was ordered to produce all relevant bank accounts and documents. The Commissioner was directed to ascertain the genuine creditors of the firm and allow the parties to present evidence. Conclusion: The court disposed of the Chamber Summons, passed a preliminary decree for the dissolution of the Partnership Firm, and ordered the defendant to deposit the admitted amount received from the TDR transaction. The suit was referred to a Commissioner for taking accounts, and the final decree would be considered upon the Commissioner's report.
|
