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TMI Blog2002 (2) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... endant was a party co-sharer and/or co-owner having undivided 1/5th share and the said property was one of the subject matters. It was decided by the Court that the said property would be allotted to one or two of co-sharer and indeed once it was allotted to one Chand Ratan Bagri and Uttam Kumar Bagri at a price of rupees 33 lakhs. However, the said order was set aside and ultimately this Hon'ble Court in the aforesaid partition suit directed to re-sell and/or re-allot the same at a greater price after the valuation being done. The defendant having no sufficient fund to bid in the aforesaid re-sale, approached one Gwal Das Karnani, one Ghanashyamdas Kankani and one Mahesh Mimani for the fund on his representation and/or assurance that he would form a partnership with the aforesaid three persons after the said property had been purchased and/or allotted in the possible re-sale. Accordingly, all the aforesaid three persons and the defendant agreed to form a partnership. So, the aforesaid three persons paid an aggregate sum of ₹ 48,79,999/-to enable the defendant to buy up by way of allotment of the said property after adjustment of his share therein at a price of rupees 61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther allowed unauthorized persons to occupy quite good number of spaces and stalls of the said market. As a result thereof the plaintiff has suffered loss and damages that is assessed at rupees four crores and claims to recover the same from the defendant. 4. The substance of the defence is that the said partnership was never acted upon, besides the partnership deed is sham document and the deed of retirement was procured in the police station on coercion and threat. Moreover, the said property was not lawfully transferred in favour of the partnership. The payment of rupees 12 lakhs and odd was for some other transaction as and by way of share of collection of the rents, issues and profits as it was agreed that after purchase of the said property the aforesaid three persons and the defendant would jointly manage the market. 5. This Court at earlier stage framed only two issues, viz. (i) whether the plaintiff is the owner of the market and (ii) whether the plaintiff is entitled to damage as claimed by it. 6. The plaintiff examined two witnesses while the defendant examined four witnesses. That apart, various documents, viz. Income Tax Returns of the defendant, records of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff immediate after purchase of the said property. Municipal rates and taxes were also paid from the fund of the partnership. It will appear from the Income Tax returns containing accounts (Exhibits 'M', 'N', 'O', 'P and 'Q') filed by the defendant for the years 1988-89, 1989-90, 1990-91, 1991-92 and 1992-93 after allotment of the property followed by formation of partnership and his retirement the defendant never claimed as owner of the said property. After retirement it will be seen in his Income Tax returns that his share capital in the partnership firm was not shown. He retired from the partnership firm by executing a deed dated 4th April, 1992 on receipt of a sum of ₹ 13.70 lakhs in aggregate which includes his deemed share capital of rupees 12 lakhs and odd. He has received it admittedly. Thereafter he executed deed of retirement on 4th April, 1992 followed by swearing an affidavit before the Notary Public dated the April, 1992 recording the fact of partnership and his retirement. Besides in another suit in an affidavit on 7th July, 1992 he has specifically admitted that he retired from the partnership firm by executing a deed of reti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid three persons for funds as alleged. He had no intention to form any partnership firm and the document, which was got signed or executed, as a sham one. It will appear from the document itself the same was not a valid one. According to him the partnership deed is interpolated as far as date of execution is concerned. Initially it was mentioned as 15th September, 1989, thereafter it was changed as 30th March, 1990 for notarization then against date was written as 15th September, 1989. Even in the application for registration of firm it was mentioned that firm was formed as on 25th August, 1989. These interpolations suggest that there was no formation of partnership. The plaintiff firm never asserted its alleged ownership either by applying mutation in the records of Corporation which is must after acquisition of ownership. The story of funding by the aforesaid three persons against the defendant is wholly unbelievable. The payment made by the aforesaid three persons was on account of share of collection of rents and not for otherwise. 13. He submits that the alleged deed of retirement was got to be signed and executed in the police station under threat and coercion held out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of a particular Court. In this connection a judgment of the Supreme Court reported in AIR1996SC2222 may be referred to. So long the aforesaid partnership deed remains unchallenged and is not cancelled the aforesaid document must be held to be a valid and lawful one. It is true that there are apparent interpolations of the date of execution thereof. Initially the date was mentioned as being 15th September, 1989, thereafter changed as 30th March, 1990 for notarization and then date of 15th September, 1989 restored. In the application for registration date of formation was mentioned as 25th August, 1989. Despite all these wrongful interpolations, one basic fact cannot be overlooked that there was partnership with defendant. These interpolations do not in my view vitiate the deed itself. The partnership deed admittedly has been registered with the Registrar of Firms. So it has got the legal implication under the law. None of the signatories to the said partnership deed, viz., Gopaldas Bagri (defendant), Ghanashyamdas Kankani, Gwaldas Karnani and Mahesh Mimani has disputed their signatures. From the aforesaid Exhibit 'B' being the partnership deed it appears that the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1959 wherein the defendant has clearly admitted that he formed a partnership with the other partners under the name and style of the plaintiff. 21. It is the contention of the plaintiff that the defendant had retired from the partnership by executing another deed dated 4th April, 1992 being Exhibit 'D', though the defendant has denied and disputed the validity and legality thereof. I cannot accept the contention of Mr. Tibrewal that the said deed of retirement is Invalid and illegal as the same was caused to be signed in the police station or under threat and/or coercion. Exhibit 'D' is an agreement no doubt. It is not a case of agreement being entered into without consent so as to render it void or void ab initio. It is a case of voidable contract at the highest as it was alleged to have entered into under threat or coercion. Under Section 19 of (the Indian) Contract Act, 1872 the defendant could have avoided it immediately thereafter. I do not find any whisper of avoidance. The defendant rather without doing so accepted benefit thereof receiving a sum of rupees 13 lakhs and odd. The said deed of retirement being Exhibit 'D' bears and contains the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; he has shown his invested share capital of ₹ 13,70,000/- in the plaintiff firm and subsequently in his Income tax return for the assessment year 1994-95 being Exhibit 'Q' he has not shown his share capital in the plaintiff firm. In his other previous returns being Exhibits 'O' 'P' he has shown he had relation with the plaintiff firm. 23. By the aforesaid documents it unmistakably establishes irresistible conclusion to the effect that the said property was purchased with the funds of the aforesaid three persons as proved by Exhibit 'G' and ultimately converted into the partnership assets. So, his interest in the partnership as being the share capital was shown in the income tax returns in Exhibits 'N', 'O' and 'P'. 24. Mr. Tibrewal has contended that no conveyance has been executed either by the Court in favour of the defendant or in favour of the partnership firm. Therefore, title of the said property has not passed on. The legal position of the formation of partnership by several persons who are bringing assets to the hotchpotch in the partnership is well settled. Section 14 of the Indian Partnership Act provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship, its exclusive right and enjoyment is always protected by the law, if such enjoyment and possession is invaded and/or threatened to be Invaded by the defendant. I find from the evidence of the plaintiff and even that of the defendant himself, and the stand taken in the written statement the defendant after having retired from the partnership and walked out in receipt of the share capital is still claiming ownership and interest in the said market. I also find from the evidence that defendant has instigated the occupants and/or tenants not to pay any rent who have not paid either. Therefore, this act of the defendant is certainly denial of the plaintiffs exclusive right of enjoyment and possession thereof. The plaintiff is the lawful owner and is entitled to manage and administer its own property without being disturbed and/or interfered with unlawfully by the third party or parties. So, permanent injunction as prayed for must be granted. Therefore, the plaintiff is entitled to and does get decree in terms of prayers (a), (b) and (c) of the plaint. 28. As far as damages are concerned I am of the view going by he averments in the plaint no prima facie case of damage has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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