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2011(3) ALL MR 104
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D. K. DESHMUKH & Smt. R. P. SONDURBALDOTA, JJ.
Lila Filomena Braganza
Vs.
Hong Kong Investment Co. Pvt. Ltd. & Ors.
Appeal No.287 of 2009 IN Suit No.937 of 1974
Decided on: 9th June, 2010.
(i) That by the preliminary decree which is ex parte decree, it has been declared that the plaintiff has one half share in the vast immovable property and that share has been given to the plaintiff only because the defendants and the plaintiff had signed partnership deed in the month of May, 1974 without the plaintiff contributing any money towards business of the firm. In Court’s opinion, it will be highly improper if a person is given share in the immovable property without spending anything for acquiring the property. Court find no consideration whatsoever for which one half share could be given to the plaintiff in the immovable property. Court find that it cannot be said on the basis of the material presently available on record that the partnership had commenced the business for which it was entered into. There was no business carried out by the firm. Addressing merely letters, making inquires from the various agencies, in Court’s opinion, does not amount to carrying out any business.
(ii) Court further finds that the question whether without there being any registered deed, it can be said that the defendants have divested themselves of 50% ownership in the immovable property, has also to be considered in the light of the provisions of Section 17 of the Registration Act, which has not been done.
Civil Procedure Code, 1908 - Section 97-Limitation Act, 1963, Sections 3 and 5-Appeal-Against preliminary decree-Contention, appeal admitted for final hearing without condoning delay and without considering sufficient cause-Respondent not filed review or recall of order admitting appeal-Not challenged order in appeal-Question of delay cannot be re-agitated-Contention not tenable-Rejected.-Perusal of Section 5 shows that the Court gets power to admit the appeal which filed after expiry of period of limitation only after the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the period of limitation. Thus, when a Court of law admits an appeal for final hearing which is filed beyond the period of limitation, it implies that the Court is satisfied before making the order of admission of appeal that there was sufficient cause shown for not filing the appeal within limitation. That the Court has not given reason for recording its satisfaction that the sufficient cause has been shown, may be the ground for challenging the order of the Court admitting the appeal either by filing an appeal against that order or by making an application for recall or review of that order. But without making an application for recall or review of that order, it cannot be urged either before the same Court or before the co-ordinate Court that the order admitting the appeal should be ignored and the question that the sufficient cause has been shown by the appellant or not should be reconsidered. In Court’s opinion, following such course of action would not be in accordance with law. In Court’s opinion, if it was the grievance of the original plaintiffs that the appeal has been admitted without, condoning the delay and without considering the sufficient cause, then its remedy was either to apply for recall or review of the order, or to challenge the order of admission of the appeal in an appeal. Having done none of these things, now the order passed by the Appeal Court admitting the appeal for final hearing is binding on the original plaintiffs, and thereof, the question of delay in filing the appeal cannot be re-agitated.
Civil Procedure Code, 1908 - Order I, Rule 10, Section 97-Partnership Act, 1932, Section 69(1)-Appeal-Against preliminary decree of dissolution of partnership and settlement of accounts-Proper party-Plaintiff, company under liquidation-Represented by official liquidator-Legal representatives of Director of Company has no locus to be party in appeal-No necessary party-Application to intervene liable to be rejected.-So far as the counsel appearing for applicant who has filed the chamber summons for permission to intervene is concerned, find that he has no locus in the matter because he claims to be the legal heir of the major, share-holder and the Director of the plaintiff Company which is under liquidation. Court does not find that when the company is a plaintiff and it is represented by the official liquidator, the legal representative of the share holder or the Director of the Company under liquidation will have any locus, and would either be a necessary or property party in the Civil Suit. This is an appeal filed against a preliminary decree, and therefore, only those parties who are parties to the suit can be the parties to the appeal. If the applicant wanted to joint as party in the appeal, he should have first taken up the proceedings in the pending civil suit for being joined as a party. Unless the applicant is permitted by the trial Court to be joined as a party, the appeal Court cannot permit anybody to be joined as a party. In any case, in Court’s opinion, according to the settled law the applicant cannot be termed either as a necessary party or as a proper party, and therefore, his application could not have been considered.
1. This appeal takes exception to the preliminary decree passed by the learned Single Judge of this Court in Suit No.937 of 1974 dated 27-2-1979 and 2-3-1979. Civil Suit No.937 of 1974 was filed by the Hongkong Investment Company Private Ltd.. To that suit Alwary Briganza and Lucil Briganza were joined as defendant. It was claimed in the plaint that the plaintiff is a private limited company registered under the Companies Act. The defendants were described as Husband and Wife, and it was stated that they were owners of 87 hectors or more vacant land. It was stated in the plaint that initially the parties had entered into the transactions for sale of the land by the defendants to the plaintiff. However, those transactions did not fructify. Then, it was claimed that thereafter a proposal was made by defendant No.1 to the plaintiff for development of immovable property in partnership with the plaintiff, and therefore, a partnership deed was executed between the plaintiff and two defendants on 23-5-1974. It was claimed that the vacant land, referred to above, was to be brought in by the defendants as their capital in the partnership business and the plaintiff was to contribute Rs.3,00,000/- (Rupees Three Lakhs only) as his contribution. It was claimed that thereafter difference and dispute arose between the parties. The defendants even denied that they have signed the partnership deed. It was claimed that the first defendant denied that they have signed partnership deed by Communication dated 18-7-1974, and therefore, by letter dated 14-9-1974 the partnership was dissolved by the plaintiff and the suit was filed on 23-9-1974. Final relief in the suit was sought in terms of prayer clauses (a) to (f). They read as under:-
(a) that it may be declared that the Partnership firm of Messers. Shamkala Farms and Motels between the Plaintiffs and the Defendants has been and stands validly dissolved as from the 14th day of September, 1974;
(b) that, in the alternative to prayer (a) above, the said Partnership firm of Messers. Shamkala Farms and Motels between the Plaintiffs and the Defendants be dissolved by this Honourable Court as from the 14th day of September, 1974, or the date of this suit, or from such other date as to this Honourable Court may seem just;
(c) that the affairs of the said Partnership firm of Messers. Shamkala Farms and Motels between the Plaintiffs and the Defendants be wound up, its accounts taken and all its assets and properties inclusive of the said immovable property more particularly described in Exhibit A hereto may be realised by and under the directions of this Honourable Court;
(d) that the Plaintiffs half share in the said firm and its assets and liabilities inclusive of the said immovable property may be declared, ascertained and awarded to them;
(e) that the Defendants may be ordered and decreed to render a full true and complete account of their dealings and transactions with the properties and assets of the said firm including the said immovable property more particularly described in Exhibit A hereto, and the produce, rents, incomes, and profits thereof as also of all amounts received or receivable by them for or in connection therewith on the footing of willful default;
(f) that the Defendants may be ordered and decreed to pay to the Plaintiffs the amounts that may be ascertained and/or found to be due and payable to the Plaintiffs at the foot of the said accounts with interest thereon at the rate of 6% (six per cent) per annum from the date of the suit till payment and/or realisation;
Thus, the principal relief that was claimed was a decree of declaration that the plaintiffs have half share in the above referred immovable property. It appears that the defendants filed written statement in the suit denying the averments in the plaint, however, thereafter, they did not remain present in the suit and did not contest the suit. Ultimately, preliminary decree was passed by the learned Single Judge of this C
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