9911796707
TMI Blog2012 (12) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... it would not simpliciter ground to come to a conclusion of a strong prima facie case of fraud warranting the interim relief. Interim relief - learned Single Judge has come to a reasonable conclusion not to grant the interim relief to the plaintiffs in the instant case and not to substitute such discretion of the learned Single Judge since the same neither appears to be arbitrary, capricious or perverse in any manner whatsoever. Accordingly Appeal stands dismissed Amendment in the plaint - The trial in the suit had also not commenced and the learned Single Judge was wholly justified to conclude that amendment at such early stage of the proceeding would not prejudice either of the parties and ought to be permitted. Assets and/or legal entities which were sought to be included as subject matter of the suit did not comprise of the joint family corpus inasmuch as they had come into existence after 2007 and that no case of concealment had been made out are essentially matters of defense which his clients would be entitled to agitate fully in the course of trial by filing written statement, if not filed. The nature and circumstances in such amendment was prayed for in our considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over an in respect of the 275000 shares held by the petitioner in the respondent no.7 company and returned to the respondent no.1 in compliance of their obligation under the MOU which has been transferred recorded in the name of the Sukanya Trading Pvt. Ltd. d) An order of injunction be passed retraining the respondent no.1 either by himself or his nominees companies under his control from causing any enhancement of the share capita of respondent no.7 company; e) An order of injunction be passed retraining the respondents and the shareholders from transferring the shares of the Respondent no.7 either within themselves or to outsiders: f) An Administrator Special Officer be appointed to take possession of the statutory books and records of SEPL and to keep the same under his control and custody and to administer and control the assets of the respondent no.7: g) An order of injunction be passed restraining the respondent no.9 from exercising any voting rights in respect of the said 2,75,000 shares in the respondent no.7: h) An order of injunction be passed retraining the respondent nos. 1 and 3 from disposing off, alienating, transferring, encumbering the properties mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional family assets which they claimed were concealed by the first defendant. After a meticulous and elaborate assessment of facts and arguments of the respective parties, the learned Single Judge by the impugned judgement and order dated 03.08.2002, inter alia, came to a finding that the plaintiffs had failed to make out a strong enough case of repudiation of the aforesaid memorandum of understanding constituting family settlement so as to grant the interim relief s as prayed for in G.A. No. 1009 of 2010. However, the learned Single Judge directed the defendant no. 1 to deposit a sum of Rs. 4 crores with the Registrar, Original Side to the credit of the suit and further directed that the interim order shall subsist till such deposit is made. By the self-same order the learned Single Judge however allowed the amendment of the plaint as sought for by the plaintiffs in G.A. No. 407 of 2010 with regard to additional family assets which the plaintiffs claimed had been subsequently revealed pursuant to income tax investigation and which according to them ought to form part of the joint family property. Mr. A.K. Mitra, learned Advocate General appearing for the plaintiffs/appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family corpus. He submitted that pursuant to the demerger of defendant no. 7 company in terms of the family settlement, proceedings were pending before the Company Court for sanctioning of scheme of arrangement in respect of the said company and any interim order passed in this suit shall adversely affect the said proceeding. In support of his cross-objection in APO No. 365 of 2010 he further submitted that the order directing his client to deposit a sum of Rs. 4 crore was never prayed for by any of the parties nor was it warranted in the facts of the case. In support of his appeal being APO No. 366 of 2010 against the order permitting amendment of the plaint, Mr. Mukherjee submitted that such amendment would change the nature and character of the suit. He argued that , the plaintiffs claimed this suit to be one for partition of joint family assets whereas the amendment sought to include assets and/or legal entities which came into being after the joint family status was severed into 2007. He further disputed the contention that there was any concealment of joint family assets by the defendant no. 1 in the instant case. The third defendant in the suit and a respondent in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt would have taken a different view may not justify interference with the trial court s exercise of discretion. Similar view was again reiterated by the Apex Court in the case of Purshottam Vishandas Raheja and Another Vs. Shrichand Vishandas Raheja and Others reported in 2011 (6) SCC 73 wherein it held : The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered with at an interlocutory stage in an intra-court appeal . In the present case, the learned Single Judge after an elaborate assessment of facts and rival contentions of the parties appear to have arrived at a factual conclusion that the family settlement had been given effect to a substantial extent and that the respective parties were in effective control of their respective shares in the terms of the said family settlement since 2007. No doubt there were some disputes relating to some aspects appear to have been admittedly there allegations of non-compliance of certain terms of the memoranda of understanding which the learned Single Judge, correctly held required to be decided on affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidly admitted that such direction ran against the tenor of the plaintiffs case that the family settlement stood repudiated. Furthermore, the learned Single Judge appears to have passed the said order ignoring the case of adjustment as claimed by the defendant no. 1 in respect of the said amount. We are also of the view that if no specific application for such relief was taken out by the plaintiffs or any prayer was made in support thereof before the trial Court, the learned Single suo moto did not have jurisdiction to pass such direction for deposit. The Court has power to direct to deposit by a party in a suit on the ground as mentioned under Order XXV of the Code of Civil Procedure and in the present factual matrix no such case has been made out. Furthermore, in view of the fact that the learned Single Judge had come to a prima facie view that the memorandum of understanding had been substantially complied with and the defendant no. 1 had claimed adjustment of the said amount, it was wholly unwarranted on the part of the learned Single Judge to pass an order directing the deposit of the said amount which has the effect of a decree. Accordingly, we allow the cross-objection fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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