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TMI Blog2019 (3) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the second contention is concerned, it no longer survives after the amendment of the Suit and which was permitted by the learned Single Judge earlier. It was in these circumstances that the Advocate appearing for the defendants did not press for rejection of the plaint on the basis of Section 34 of the Specific Relief Act. 4. Initially, a Suit was filed by the appellant (Plaintiff before the learned Single Judge), inter-alia seeking the following reliefs: "a. That this Hon'ble Court be pleased to pass an order: i. Declaring that the plaintiff is the owner of the suit flat as more particularly described in Exhibit "A" annexed hereto and directing the defendant No.1 to hand over peaceful possession of the suit flat to the plaintiff. ii. Declaring that the 1st defendant has absolutely no right, title and interest in the suit flat as more particularly described in Exhibit-A to the plaint. b. That this Hon'ble Court be pleased to pass and order against the 1st defendant directing her to transfer the ownership of the suit flat as more particularly mentioned in Exhibit-A annexed heretoin favour of the plaintiff; c. In the event the 1st defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Insurance Companies under the name and style of a proprietary concern called "M/s. Guru Systems". The 1st defendant was an employee of the plaintiff who has left her job by her own will and is also claiming ownership, right, title and interest in respect of Flat bearing No. E-5, 5th Floor, Dimple Apartment Co-operative Housing Society Limited, Jerbai Wadia Road, Parel (East), Mumbai 400 012, ad-measuring about 712 square feet (carpet) along with a terrace having an area of approximately 535 square feet (carpet). For the sake of convenience this property shall be referred to as "the suit property". 6. It is averred in the plaint that the plaintiff is doing business in the name and style of M/s. Guru Systems, M/s. Pathfinders and M/s. Balaji Financial Services from Flat No. 201, 2nd Floor, Lucky Star CHS Ltd., Jerbai Wadia Road, Parel (E), Mumbai 400 012. Originally, the plaintiff was having his business at Nashik with around. 70 to 80 people employed under him. In the year 2002, he decided to expand his business and opened a branch office in Mumbai. It was at this time that Defendant No.1 was also looking for a job and she approached the plaintiff. The plaintiff interviewed he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent decision and it was the plaintiff alone who was taking all the decisions as he was the actual owner of the said proprietary concern. 10. Thereafter, in paragraph 7 of the plaint, the plaintiff asserts and states that the 1st defendant was faithfully serving the plaintiff and therefore he had full faith and confidence in her and that is how the proprietary concern M/s. Guru Systems was started in the name of the 1st defendant who was a trustworthy employee of the plaintiff. It is, thereafter, stated in Paragraph 9 that in the course of her employment, the 1st defendant worked very hard and became one of the trusted employees of the plaintiff. He gave her all confidential information about his work, his clients, confidential data, files, etc., and all business related matters. Since the 1st defendant also expressed her desire to pursue education in law, the plaintiff agreed and helped her in taking admission in Dr. Ambedkar Law College, Wadala, Mumbai for which the fees and other expenses were borne by the plaintiff. It is thereafter stated in Paragraphs 10, 11 and 12 of the plaint, as under : "10. In the year 2009, the Plaintiff had shifted the entire business operation admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the funds of M/s. Guru Systems and Plaintiff, further it was agreed that the Defendant No.1 will transfer the business of M/s. Guru Systems and the suit premises in the name of Plaintiff as and when called for by the Plaintiff without any consideration or consideration." 11. It is, thereafter, averred in paragraphs 13 and 14 as to how payment was to be made for the suit property. It has also been averred that the 1st defendant was not having financial credit worthiness and it was for this reason that the plaintiff and his wife had to become co-applicants/guarantors for the housing loan that was sanctioned in respect of the suit property It is also thereafter stated that the 1st defendant, though becoming an Advocate, was still working with the plaintiff and she herself willingly transferred the proprietary concern, M/s. Guru Systems, in the name of the plaintiff. It was also submitted that she had executed an affidavit-cum-declaration dated 20th July, 2013 in the presence of the two witnesses, wherein she agreed to transfer the suit flat in the name of the plaintiff, when called upon to do so. In fact, the plaintiff has also been paying EMI of the home loan in respect of the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Suit could not have been dismissed in this summary fashion, was the submission. In these circumstances, Mr. Jagtiani submitted that the appeal ought to be allowed and the impugned order be set aside. 14. On the other hand, Mr. Shyam Mehta, the learned Senior Counsel, appearing on behalf of the 1st defendant submitted that the averments in the plaint do not in any way make out a fiduciary relationship between the plaintiff and the 1st defendant. He submitted that there was no pleading to that effect in the plaint and therefore there was no question of the plaintiff being allowed to lead any evidence with reference to the so called fiduciary relationship between the plaintiff and the 1st defendant. He therefore submitted that the learned Single Judge was fully justified in invoking the provisions of Order VII Rule 11 (d) of the C.P.C. for dismissing the suit. This being the case, Mr Mehta submitted that no interference was required in the impugned order and the appeal be dismissed. 15. We have heard the learned Counsel for the parties at some length and have perused the papers and proceedings in the appeal along with the impugned order. We have also carefully gone through the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is, in fact, wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other. 17. In another decision in the case of Central Board of Secondary Education v. Aditya Bandopadhyay [2011] 67 MLJ 1237 (SC), the Supreme Court in paragraph 21 has clearly stated that there are certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are : a partner vis-a-vis another partner and an employer vis-a-vis an employee. The Supreme Court has further gone to state that an employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act in a fiduciary capacity and cannot disclose it to others. 18. From these decisions it is clear that it is not as if under no circumstances there can be no fiduciary relationship between an employer and an employee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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