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High Court Of Calcutta
KALYAN JYOTI SENGUPTA
BROADWAY CENTRE - Appellant
Versus
GOPALDAS BAGRI - Respondent
C. S. 378 Of 1995
Decided On : 02/01/2002
PARTNERSHIP - DISSOLUTION - RETIREMENT - VALIDITY OF DEED OF RETIREMENT - OWNERSHIP OF PROPERTY - TRANSFER OF TITLE - INDIAN PARTNERSHIP ACT, 1932 - SECTION 14 - TRANSFER OF PROPERTY ACT, 1882 - SECTIONS 54, 55 - REGISTRATION ACT, 1908 - SECTIONS 17, 49.
Fact of the Case:
A registered partnership firm brought a suit against its erstwhile partner for permanent injunction, damages, and possession of a market property. The defendant, who was a coparcener in a joint family, had acquired the property through a partition suit and subsequently formed a partnership with three other individuals to develop and manage the market. The partnership deed was registered, and the partners contributed funds for the purchase and development of the property. The defendant later retired from the partnership and received payment for his share capital. However, he continued to claim ownership of the property and instigated tenants not to pay rent, leading to the filing of the suit.
Finding of the Court:
The court held that the partnership was validly formed and acted upon, and the defendant had retired from the partnership by executing a valid deed of retirement. The court found that the property was brought into the partnership as an asset and that the partnership firm was the owner of the property by virtue of Section 14 of the Indian Partnership Act, 1932. The court also held that the defendant's instigation of the tenants to withhold rent constituted an interference with the plaintiff's exclusive right of enjoyment and possession of the property.
Issues: 1. Whether the plaintiff is the owner of the market property? 2. Whether the plaintiff is entitled to damages as claimed?
Ratio Decidendi: 1. The court relied on Section 14 of the Indian Partnership Act, 1932, which provides that the property of a partnership includes all property and rights and interests in property brought into the stock of the firm or acquired by or for the firm. The court held that the property in question was brought into the partnership as an asset and that the partnership firm was therefore the owner of the property. 2. The court found that the defendant's instigation of the tenants to withhold rent constituted an interference with the plaintiff's exclusive right of enjoyment and possession of the property. The court held that the plaintiff was entitled to a permanent injunction restraining the defendant from interfering with its possession and enjoyment of the property.
Final Decision: The court granted a permanent injunction restraining the defendant from interfering with the plaintiff's possession and enjoyment of the property. The court also dismissed the plaintiff's claim for damages, holding that no prima facie case of damage had been made out.
( 1 ) THIS suit has been brought by a registered partnership firm against one of its erstwhile partner for the relief of permanent injunction restraining the defendant and/or his agents and/or his representatives from disturbing and interfering with possession, occupation, administration and enjoyment of the property being the market in question and also decree for damages of Rs. 4,00,00,000. 00 (four crores ). The short fact in the plaint is briefly stated hereunder :
( 2 ) THE property in question is Market being premises Nos. 14, 14/1, 14/2 and 14/3, Old China Bazar Street, Calcutta which situates at commercial hub in the city of Calcutta commonly known as 'vikam Chand Market" (hereinafter referred to as the said property ). The said property was one of the joint family properties of Bagri family. The defendant was one of the coparceners of the said Bagri family. Coparceners and/or co-sharers of Bagri family filed a Partition Suit being Suit No. 1736 of 1959 in the year 1959 in which the defendant was a party co-sharer and/or co-owner having undivided 1/5th share and the said property was one of the subject matters. It was decided by the Court that the said property would be allotted to one or two of co-sharer and indeed once it was allotted to one Chand Ratan Bagri and Uttam Kumar Bagri at a price of rupees 33 lakhs. However, the said order was set aside and ultimately this Hon'ble Court in the aforesaid partition suit directed to re-sell and/or re-allot the same at a greater price after the valuation being done. The defendant having no sufficient fund to bid in the aforesaid re-sale, approached one Gwal Das Karnani, one Ghanashyamdas Kankani and one Mahesh Mimani for the fund on his representation and/or assurance that he would form a partnership with the aforesaid three persons after the said property had been purchased and/or allotted in the possible re-sale. Accordingly, all the aforesaid three persons and the defendant agreed to form a partnership. So, the aforesaid three persons paid an aggregate sum of Rs. 48,79,999. 00 to enable the defendant to buy up by way of allotment of the said property after adjustment of his share therein at a price of rupees 61 lakhs. The order of sale and/or re-allotment was passed in the partition suit on 25/08/1989. Simultaneous with purchase of the said property by and under a deed of partnership dated 15/09/1989 the aforesaid three persons and the defendant entered into a partnership in the name and style of Broadway Centre, viz. , the plaintiff herein. The shares of the four partners were as follows :- (I) Gopaldas Bagri (defendant) - 20% (ii) Ghanashyamdas Kankani - 50% (iii) Gwaldas Karnani - 15% (iv) Mahesh Mimani - 15%
( 3 ) THE defendant's share in the firm was valued having regard to his deemed capital contribution being the aforesaid amount of rupees 12 lakhs and odd and Ghanashyamdas Kankani contributed largest amount, viz. , more than rupees 30 lakhs. After formation of the partnership, all partners acted upon accordingly for realization of rents, issues and profits for development of the market. However, mutual relation of defendant qua partner with other three partners was impaired and the defendant could not continue with this partnership firm and asked for retirement. So, on payment of a sum of Rs. 12,20,000. 00 and another sum of Rs. 1,00,000. 00 incurred by him on account of payment of rates and taxes to the Calcutta Municipal Corporation defendant retired from the said partnership. The deed of retirement was also executed on 4/04/1992 together with an affidavit of the defendant recording the factum of retirement which was duly notarized. The defendant while acting and retiring as a partner reflected the said fact in income tax returns for the assessment years 1989-90, 1990-91, 1991-92 and 1992-93 on which assessment orders were passed and upon retirement he also informed the respective tenants for attornment in name and favour of the plaintif
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