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High Court Of Calcutta
Prabir Kumar Majumdar, Baboo Lall Jain
Md.HASSEN HASHMI - Appellant
Versus
KABERI ROY - Respondent
Appeal 45 Of 1992
Decided On : 06/03/1992
PARTNERSHIP - SUIT FOR DISSOLUTION AND ACCOUNTS - AMENDMENT OF PLAINT - JURISDICTION - BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - APPLICABILITY - APPEALABILITY OF ORDER ALLOWING AMENDMENT.
Fact of the Case:
Plaintiff filed a suit for declaration of dissolution of partnership, winding up of partnership business, accounts and inquiries, injunction restraining defendants from acting in terms of partnership agreement, receiver, injunction, attachment, etc. Plaintiff later applied for amendment of plaint to add particulars of three projects undertaken by partnership and to add prayer for injunction restraining defendant from dealing with assets and properties of partnership. Defendant opposed the amendment, arguing that it would turn the suit into a suit for land outside the court's jurisdiction and that it was barred by the Benami Transactions (Prohibition) Act, 1988.
Finding of the Court:
The court held that the suit was primarily for dissolution of partnership and accounts, and that the relief with regard to injunction in respect of the assets and properties of the partnership was in the nature of an incidental relief. The court further held that the interest of a partner in a partnership is in the nature of movable property, even though the partnership owns immovable properties outside the jurisdiction. The court also held that the suit was not hit by the Benami Transactions (Prohibition) Act, 1988, as there were no allegations in the plaint that the defendant was a benamdar or that the property was purchased in the name of the defendant as benamdar.
Issues: 1. Whether the amendment of the plaint would turn the suit into a suit for land outside the court's jurisdiction? 2. Whether the suit was barred by the Benami Transactions (Prohibition) Act, 1988?
Ratio Decidendi: 1. The primary object of the suit was for dissolution of partnership and accounts, and the relief with regard to injunction in respect of the assets and properties of the partnership was in the nature of an incidental relief. 2. The interest of a partner in a partnership is in the nature of movable property, even though the partnership owns immovable properties outside the jurisdiction. 3. There were no allegations in the plaint that the defendant was a benamdar or that the property was purchased in the name of the defendant as benamdar.
Final Decision: The court dismissed the appeal and upheld the order of the trial court allowing the amendment of the plaint.
( 1 ) THIS is an appeal from the Judgment and Order of the learned Interlocutory Judge whereby the plaintiff's application for amendment of the plaint was allowed. The suit as originally instituted by the plaintiff against the defendants, was inter alia, for declaration that the business of M/s. Tagore Park Apartments of 587/16, Dr. R. N. Tagore Road Tagore Park, Calcutta-700056, stood dissolved on and from November 13, 1989; winding up of the partnership business carried on under the name and style of M/s. Tagore Park Apartments at No. 587/18, Dr. R. N. Tagore Road, Tagore Park Calcutta-700056; accounts and enquiries; injunction restraining the defendants and each of them whether by themselves, their servants, agents, assigns or otherwise howsoever from acting in terms of or pursuant to or in furtherance of the said partnership agreement in any manner whatsoever; Receiver; injunction ; attachment; costs etc. After the suit was instituted the plaintiff made an application, inter alia, for appointment of Receiver and for injunction and various orders were passed on the said application from time to time. The suit was instituted sometime prior to July 5, 1991 and pursuant to the said interlocutory application made by the plaintiff, an order was passed by the interlocutory court on July 5, 1991. On the said date, learned Counsel appearing on behalf of the defendants, gave assurance on behalf of the defendants that the defendants would not operate the bank account of the partnership firm in the United Bank of India and would not incur any other liability on account of the partnership firm.
( 2 ) ONE of the allegations contained in the plaint as originally filed, was as follows :-"10. The said partnership firm since 1985 has taken up three projects and/or construction of three building in Tagore Park area out of which one is a four storied building comprising of 10 flats and the third project is a five storied building comprising of 9 flats. The said projects apart from the said flats also have mezanine floors, shop rooms, garages etc, which were sold out separately. The said partnership business involved several lacs of rupees. "
( 3 ) THE plaintiff had also alleged in the plaint as originally filed that the business of the partnership was that of promoters and/or developers and/or building contractors under the name and style of 'tagore Park Apartments' which was carried on, inter alia, at 5, Tagore Park Road (formerly No. 587/18, Dr. R. N. Tagore Road), Tagore Park, Calcutta-700056. From the aforesaid allegations, it will appear that the case of the plaintiff was that the partnership firm since 1985 had undertaken three projects and/or construction of three buildings in Tagore Park area.
( 4 ) THEREAFTER on September 12, 1991 a further order was passed which was to the following effect :-"the Court : Supplementary Affidavit is to be filed by 16. 9. 91; A/r if there be any by 18. 9. 91 and the matter to appear on 19. 9. 91. Mr. Bose assures this court that his client will take no steps or deal with the property in the meantime save and except for the purpose of construction. "
( 5 ) THE assurance given on behalf of the defendants was to the effect that they would not take any steps to deal with the property, save and except for the purpose of construction. According to the plaintiff the only construction that was going on in or about September 1991 was, in respect of 587/20 Dr. R. N. Tagore Road. However that is a matter of proof for the parties at the trial where after the matter is to be decided.
( 6 ) THE said interlocutory application of the plaintiff was disposed of by an order dated September 23, 1991 and by the said order, the Court appointed Mr. Prasad Bagchi, an Advocate of this court, as Receiver in terms of prayer (a) of the petition. The Receiver was also directed to initial the books of accounts in terms of prayer (b) of the petition and also an order of injunction was passed restraining the defend
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