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2010 Supreme(Cal) 1287
High Court Of Calcutta
K.J.Sengupta, J.
Sanjay Kumar Bajoria - Appellant
Versus
Lata Devi Bajoria – Respondent
G.A. Nos.1518, 1216, 1515, 1516, 1517,764, 282 of 2009 and C.S. No. 19 of 2009
Decided on : Oct 06, 2010
A suit for declaration of ownership and possession of assets and properties of a joint venture, based on an alleged joint venture agreement, is maintainable against the heirs and legal representatives of the other party to the agreement, and is not barred under Order II Rule 4 of the Code of Civil Procedure, 1908, as it is not a suit for land.
Headnote:
CONTRACT - Joint venture - Suit for declaration of ownership and possession of assets and properties - Maintainability - Jurisdiction - Order II Rule 4 of the Code of Civil Procedure, 1908 - Suit for land - Applicability - Cause of action - Disclosure - Unregistered partnership firm - Interest of partner - Movable property - Legal concept of suit for land - Inapplicability.
Fact of the Case:
The plaintiff filed a suit for declaration of ownership and possession of 15% of the assets and properties of various companies, alleging that he had entered into a joint venture agreement with the late Arun Kumar Bajoria (AKB), who was the real owner of all the companies. The defendants, who were the heirs and legal representatives of AKB and the companies, filed applications under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking dismissal of the suit on various grounds, including lack of jurisdiction, non-disclosure of cause of action, and maintainability of the suit as a suit for land.
Finding of the Court:
The court held that the suit was maintainable against the defendants Nos. 1 to 6, who were the heirs and legal representatives of AKB, as the plaintiff had made out a debatable or arguable case based on the allegation of execution of a joint venture agreement. The court further held that the suit could not be treated as a suit for land, as the plaintiff's claim was for a share in the joint venture, which was in the nature of movable property, and not for any specific property of the joint venture. Therefore, the court struck off the defendant Nos. 7 to 19 from the array of defendants and dismissed the plaintiff's application for interlocutory relief.
Issues: 1. Whether the suit was maintainable against the defendants Nos. 1 to 6? 2. Whether the suit was barred under Order II Rule 4 of the Code of Civil Procedure, 1908? 3. Whether the suit could be treated as a suit for land?
Ratio Decidendi: 1. A suit for dissolution of partnership and account cannot be treated as a suit for land even if its assets consist of immovable properties. (AIR 1989 Cal 254) 2. The interest of one of the parties in a joint venture is in the same footing as in the case of partnership. (AIR 1993 Cal 70) 3. The location of properties of the joint venture is not a determinative factor for the purpose of jurisdiction. (AIR 1989 Cal 254) 4. A suit for the recovery of immovable property cannot be joined with a cause of action unless with the leave of the Court, except in certain specified cases. (Order II Rule 4 of the Code of Civil Procedure, 1908) 5. The legal concept of suit for land does not apply to a suit arising out of a joint venture agreement, where the claim is for a share in the joint venture, which is in the nature of movable property.
Final Decision: The court dismissed the defendants' applications under Order VII Rule 11 of the Code of Civil Procedure, 1908, and struck off the defendant Nos. 7 to 19 from the array of defendants. The court also dismissed the plaintiff's application for interlocutory relief. The plaintiff was granted liberty to amend the plaint within four weeks from the date of receipt of a copy of the order.
1. THE judgment of the Court was as follows:- All the above mentioned applications have been taken out by respective parties as stated specifically hereinafter for following common reliefs:-
(a) THE aforesaid suit being C.S. No. 19 of 2009 be dismissed, (b) Leave under Clause 12 of the Letters Patent be revoked, (c) Staying of all further proceedings in C.S. No. 19 of 2009 till the disposal of the instant suit. Since these applications are demurer action the same require disposal first before this Court considers the application for interlocutory relief, taken out by the plaintiff being G. A. No. 282 of 2009.
2. THIS application has been taken out by Calcutta Infrastructure Infotech Projects Limited the defendant No. 10 for the above relief on the ground that from perusal of the plaint and relief claimed therein would show that the plaintiff is seeking a decision on right title of immovable property, and control and possession thereof. The plaintiff had at no point of time held any share in the applicant company and the particulars of the shareholders would appear from a schedule which is annexed to the petition being Annexure 'C. As on 11th November, 2004 Arun Kumar Bajoria, since deceased (who has been described hereinafter in short AKB) had no interest in the applicant company nor AKB was a Director at that point of time. Therefore, AKB creating any interest in respect of the Behala property could not and did not arise. The property at Behala admittedly situates outside the jurisdiction of this Hon'ble Court. The documents relied on by the plaintiff are clearly inadmissible in evidence and no right in respect of the said immovable property could be claimed on the basis of that document as the said document is unregistered also. No specific performance of alleged agreement could be granted inasmuch as the dispute relate to immovable property that situates outside the jurisdiction of the Hon'ble Court. The said suit is frivolous, vexatious, scandalous and is filed in gross abuse of the process of Court inasmuch as the plaintiff had full knowledge of the true facts regarding ownership and possession of the said property at the time of institution of the instant suit. The suit is filed intending to cause unnecessary hardship to the applicant.
This application has been taken out for the identical relief as mentioned above by one J.R. Hutchison Limited and Bajoria Finance Private Limited being the defendant Nos. 11 and 12. The plaintiff has sought for several other relief on different causes of action other than recovery of immovable properties for which no leave under Order 2 Rule 4 of the Code of Civil Procedure has been taken. For such reason the plaint is liable to be dismissed being barred by law. In the plaint no case has been made out that the assets and properties of the petitioners herein were owned by late A.K.B. It is not the case of the plaintiff that he is entitled to any share in the properties and assets of the defendant Nos. 11 and 12 or these defendants have ever agreed with the plaintiff to giving any share in their assets and properties. The handwritten statement of AKB on which the plaintiff is strongly relying has not stated to have been made at the instance of the applicants. The claim of the plaint as against the applicants' herein are in respect of properties mentioned in Article 3 under the heading "Real Estate Projects" which are situated admittedly at Kona outside the jurisdiction of this Hon'ble Court. This Hon'ble Court has been called upon to decide the title in respect of the properties outside the jurisdiction of this Hon'ble Court and also for delivery of possession of such property which are lying outside the jurisdiction of this Hon'ble Court. Hence this Hon'ble Court lacks inherent jurisdiction to adjudicate the suit so far as assets and properties of these applicants are concerned. The other grounds for adjudication of plaint are identical as it is made out in the earlier application.
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