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TMI Blog2012 (12) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... ot opposed and is, accordingly, allowed. FAO(OS) No. 569/2012 1. Admit. 2. Learned counsel for the respondent accepts notice. With the consent of parties, we have heard learned counsels and proceed to dispose of the present appeal. 3. The appellant has preferred the present appeal to assail the order dated 07.08.2012 passed by the learned Single Judge disposing of the following applications: (i) I.A. No. 5347/2012 (under Order VI Rule XVII CPC filed by the plaintiff/respondent); (ii) I.A. No. 17345/2011 (filed by the defendant Nos. 1 and 2/appellants under Order VII Rule 11 CPC for rejection of the plaint), and; (iii) I.A. No. 18753/2011 (filed by the defendants/appellants under Order XXXIX Rule 4 CPC for vacation of the interim order dated 12.08.2011). The respondent/plaintiff filed a suit for declaration, injunction and rendition of accounts through his attorney. The respondent is a senior citizen residing in New York for the last several decades where he is a practicing doctor. The case of the respondent was that the appellant had been acquainted with him for over a decade. The appellant No. 2/defendant No.1 in the suit represented to him that if the respondent were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent and his family members. 4. An ex-parte order of injunction was passed on the respondent's application under Order XXXIX Rules 1 and 2 CPC being I.A. No. 12627/2011 restraining the appellants from alienating the suit properties mentioned in paragraph 26(i)(a) to (j) of the said order. The Court also passed an order of attachment before judgment in respect of property No. 153-H, Country Lane No. 5, Anupam Garden, Sainik Farms, New Delhi. 5. Upon service of summons, defendant Nos. 1 and 2, who are appellant Nos. 2 and 1 respectively in the present appeal, filed the aforesaid application under Order VII Rule 11 CPC to seek rejection of the plaint. They also sought vacation of the ex-parte order of injunction by moving the application under Order XXXIX Rule 4 CPC, as aforesaid. 6. The learned Single Judge after hearing the parties allowed the amendment application moved by the respondent and also dismissed the applications of the appellants under Order VII Rule 11 CPC and under Order XXXIX Rule 4 CPC for vacation of the interim orders of injunction. Consequently, the appellant has preferred this appeal. 7. The submission of Mr. Phoolka, learned Senior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the respondent was seeking to add details of the properties purchased by defendant No. 1/appellant No. 2 and the funds generated by the respondent for the purpose. These details are contained in the document dated 18.03.2011 annexed to the unamended plaint, which had expressly been mentioned and relied upon in the plaint. 10. The learned Single Judge has not only taken note of the relevant averments made in the unamended plaint but also the documents filed by the respondent- particularly the document dated 18.03.2011 containing the admission of appellant No. 2. She has also taken note of the statement made by the respondent before the Court under Order X CPC. 11. From the aforesaid, it is clear that the learned Single Judge has threadbare examined the respondent's application for amendment and has found good justification to exercise the discretion vested in her, founded upon well settled principles. It is not for this Court to interfere with the exercise of discretion by the learned Single Judge when the same is found to have been exercised on relevant and germane considerations. Consequently, we do not find any illegality or infirmity in the impugned order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tum of monies sent, and the purpose for which they were sent by the respondent to the appellants and the manner of the utilization of the said funds. These are all matters of trial. It is well settled that for rejection of a plaint under Order VII Rule 11 CPC, all that can be seen is the plaint, the documents filed with the plaint and the documents which ought to have been filed with the plaint but which have deliberately been withheld by the plaintiff. The defence that the appellants may set up in their written statement cannot be the basis of an application under Order VII Rule 11 CPC. 15. The submission that the suit was barred by the provisions of the Benami Act has also exhaustively been considered by the learned Single Judge and, in our view, has been rightly rejected. The learned Single Judge has taken note of Section 4(3) of the Benami Act which carves out two exceptions to the applicability of the prohibition contained in the Benami Act. The second exception is: where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee or towards wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the appellant stood in a fiduciary capacity vis- -vis the plaintiffs-respondents.' 16. The submission of the appellants that Section 88 of the Indian Trusts Act, 1882 is applicable only to the persons listed therein i.e. to an executor, trustee, partner, agent, director of a company, legal advisor or other persons bound in fiduciary character to protect the interests of another by a written agreement binding the parties, has been considered in depth by the learned Single Judge and rejected by placing reliance on the decision of the Supreme Court in Canbank Financial Services Ltd. Vs. Custodian and Others (2004) 8 SCC 355. In para 48, the learned Single Judge has observed as follows: 48. It may be noted at this juncture that in the Canbank Financial Services Ltd. case (supra), the Supreme Court while dealing with the Benami Transactions Act emphasized that benami transactions in India were generally recognized by the Courts unless such transactions (a) violated the provisions of any law; or (b) defeated the rights of innocent transferees for value; or (c) when the object of the benami transaction was to defraud creditors; or (d) when it was against public policy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.‟ 52. The scope and ambit of the expression fiduciary cannot, therefore, in my opinion, be narrowed down to the extent canvassed by Mr. Phoolka, either in law or in equity. Law does not mandate such an interpretation; equity does not countenance it. In equity, it would tantamount to the trustee not only betraying the trust reposed in him but also taking advantage of his own wrong. Surely, this could not have been the intentment of the legislature which specifically saved fiduciary relationships from being hit by the prohibition imposed on benami transactions by culling out an exception to such transactions in the form of Section 4(3)(b) of the Benami Transactions Act. 53. For th ..... 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