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TMI Blog2024 (12) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... volved, which were similar in the present case as that on the earlier occasion, when a similar prayer was rejected by the order dated July 15, 2017. The said order has attained finality, having not been assailed successfully. Hence, the present application of respondent no. 25 is barred by the principle of res judicata. Partial rejection/return of plaint - HELD THAT:- It is found from the reliefs sought in the plaint that the argument as to the NCLT having jurisdiction applies only to certain consequential reliefs sought in the suit in respect of alleged mismanagement of the funds of the defendant-Companies. Even if the said reliefs are held to be barred at the final hearing of the suit, the primary relief of declaration and partition cannot be held to fall within the domain of the NCLT s jurisdiction. As held in Ammonia Supplies [ 1998 (9) TMI 427 - SUPREME COURT] and Sangramsinh P. Gaekwad [ 2005 (1) TMI 409 - SUPREME COURT] , disputed questions which are pure questions of title cannot be adjudicated under the Companies Act. As held in Dwarka Prasad Agarwal (D) by LRS. [ 2003 (7) TMI 481 - SUPREME COURT] , the jurisdiction of the Civil Court is not completely ousted by the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sets of the defendants-Companies vests in the joint family. Hence, the concept of quasi-partnership can definitely by borrowed in the backdrop of the plaint case. It is to be noted that the decisions in Ammonia Supplies [ 1998 (9) TMI 427 - SUPREME COURT] and Shashi Prakash Khemka (Dead) by LRS [ 2019 (2) TMI 971 - SUPREME COURT] highlight the fact that the NCLT has jurisdiction only in cases covered by the Companies Act, 2013. In the said judgment, the Supreme Court also noted that Section 430 of the 2013 Act bars the jurisdiction of the Civil Courts only in matters in respect of which exclusive power has been conferred on the NCLT and not otherwise. Unless the remedy of a Civil Suit is completely barred, Section 430 is not attracted at all. Thus, in the present case, the primary reliefs sought are declaration of title and partition. In view of the cross-shareholdings and pervasive control over the defendants-Companies by the joint family-members, it is opined that the concept of quasi-partnership can be applied to the present case in view of the plaint averments. Applicability of the Benami Transactions Act - HELD THAT:- Section 2 (9) (A) (b) of the Benami Act, in sub-clauses (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and properties including business, assets and property of defendant nos. 19 to 37-companies (except defendant nos. 29 and 30), a residential building at Kolkata and a land and building at Siliguri, together with land and building at Simultala, for partition of the joint family business, assets and properties as described in the Schedule of the plaint, and consequential reliefs in respect of the management of the defendant nos. 19 to 37-Companies and their assets as well as the ancillary relief of permanent injunction. 3. As per the plaint case, the petitioners and the respondent nos. 1 to 18 are descendants of one Sukhdeo Prasad Agarwala. The said Sukhdeo came from Haryana to Calcutta (now Kolkata) in the year 1950 with small personal funds obtained in course of service and odd businesses undertaken by Sukhdeo Prasad. In or around the year 1954, Sukhdeo started a business under the name and style of SP Agarwala and Company. The said business was initially a proprietorship concern supplying tea stores and tea chest fittings. 4. As per the plaint case, the respondent nos. 19 to 37-Companies are family companies, the shareholding of which are owned, controlled and managed by the famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oldings of the family-members of Sukhdeo Prasad in the Companies clearly indicate that the concept of quasi-partnership governs those. The directorships of the companies are primarily distributed between the joint family-members and the control and majority shareholding in the companies vests with the family members of Sukhdeo. The family companies were formed with the common funds of the family and, as such, the declaratory and partition suit is very much maintainable. 11. It is argued that a combined reading of Sections 241 and 242, along with Section 430, of the Companies Act, 2013 (hereinafter referred to as the 2013 Act ) would show that the said provisions were incorporated with effect from June 1, 2016 whereas the suit was filed on June 26, 2006. As such, the bar incorporated therein is not attracted to the present suit. 12. Section 465 of the 2013 Act provides that prosecution under repealed enactments pending before the 2013 Act are to continue to be heard and disposed of by the court which is in seisin of the matter. 13. Learned senior counsel cites Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd., reported at (1998) 7 SCC 105 and Sangramsinh P. Gaek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority or the Appellate Tribunal. Learned senior counsel takes the court through Sections 21, 24 and 26 of the 2016 Amending Act to argue that the Initiating Authority can call for information and impound documents as well as issue notice for attachment of a benami property. Only on receipt of a reference from the Initiating Officer, the Authority may adjudicate a property to be a Benami property. Hence, the process of returning the plaint in a suit is not contemplated under the Benami Act, as amended in 2016. 22. It is further argued that the non-joinder of other shareholders in the defendants/respondent-Companies cannot be a ground for return of the plaint, since in view of the frame of the suit, which is for declaration and partition primarily, the other shareholders of the respondent-Companies are not necessary or proper parties. Moreover, the appellants do not claim merely as shareholders of the said Companies but claim title to the assets of the Company, which were formed from the joint family nucleus of the larger family of Sukhdeo. 23. Learned counsel for the respondent no. 25, supported in substance by the other respondents, controverts the submissions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 024 SCC OnLine SC 2451, where the Supreme Court observed that the jurisdiction of the Civil Courts or for that matter any other forum would be barred when the subject-matter of the dispute squarely falls within the domain and jurisdiction of the courts/forum constituted under the provisions of the Act of 1956/Act of 2013. 30. Learned counsel next cites Chittoori Subbanna v. Kudappa Subbanna and Others, reported at AIR 1965 SC 1325 , for the proposition that a pure question of law can be raised at any stage of the proceeding. Thus, it is argued, the question of the suit being barred under the Benami Act can very well be raised for the first time in the present appeal. 31. The respondents also cite a Division Bench judgment of this Court, reported at AIR 2008 Cal 98 [Allahabad Bank v. Shank s (Steel Fab Pvt. Ltd. Ors.)], for the proposition that a plaint can be rejected where the suit appears from the statements made in the plaint to be barred by any law, upon a scrutiny only of the averments made in the plaint. If it appears from the averments made in the plaint itself that the court cannot entertain the suit because of any bar created by law, the court is left with no other alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been assailed successfully. Hence, the present application of respondent no. 25 is barred by the principle of res judicata. Partial rejection/return of plaint 38. We find from the reliefs sought in the plaint that the argument as to the NCLT having jurisdiction applies only to certain consequential reliefs sought in the suit in respect of alleged mismanagement of the funds of the defendant-Companies. Even if the said reliefs are held to be barred at the final hearing of the suit, the primary relief of declaration and partition cannot be held to fall within the domain of the NCLT s jurisdiction. As held in Ammonia Supplies (supra) and Sangramsinh P. Gaekwad (supra), disputed questions which are pure questions of title cannot be adjudicated under the Companies Act. As held in Dwarka Prasad Agarwal (D) by LRS. (supra), the jurisdiction of the Civil Court is not completely ousted by the Companies Act, 1956. 39. The plinth of the plaint case is inheritance of the shareholding and assets of the defendant-Companies by the plaintiffs. What has been claimed in the suit is a declaration of their title in the assets which are the subject-matter of the suit vis-a-vis the Companies involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assets. The said primary reliefs cannot be granted by the NCLT but comes squarely within the purview of the Civil Court. Even as per the judgments cited by the respondents, if the disputes pertain to questions of title and squarely fall within the domain of the Civil Court, the exclusion of the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure is not readily inferred. Thus, if at all, the plaint would have to be rejected/returned partially. Such split being not permissible in law, the impugned order returning the plaint as a whole is bad on such count as well. Jurisdiction of the NCLT 43. A careful perusal of the reliefs claimed in the plaint against the defendant-Companies shows that they are ancillary reliefs flowing from the primary reliefs of declaration and partition. Consequential reliefs cannot be the determinant of the jurisdiction of the court. Importantly, the NCLT does not have jurisdiction under Sections 241 or 242 of the 2013 Act to decide the title of parties either to shares or to the assets of Companies. The plaintiffs do not claim merely in the capacity of shareholders but seek a declaration of the joint ownership on the strength of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs sought in respect of shares as well as mismanagement of Companies exclusively. As opposed thereto, in the present case, the primary reliefs sought are declaration of title and partition. In view of the cross-shareholdings and pervasive control over the defendants-Companies by the joint family-members, we are thus of the opinion that the concept of quasi-partnership can be applied to the present case in view of the plaint averments. Benami 49. Although it is pleaded by the appellant that benami is a new ground argued for the first time in the appeal, since the court can suo moto reject the plaint under Order VII Rule 11 of the Code and/or return a plaint under Order VII Rule 10 thereof, and the argument of benami has been made on the basis of the averments in the plaint itself and no new facts are required to be decided, we are of the opinion that the said ground can be validly urged by the defendants/respondents even for the first time in the present appeal. 50. The argument of the plaintiffs/appellants that since the latest amendments to the Benami Act came in 2016, ten years subsequent to the institution of the suit, the same cannot be applied, is not acceptable, since a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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