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2012 Supreme(Cal) 923
IN THE HIGH COURT OF CALCUTTA
Kalyan Jyoti Sengupta & Joymalya Bagchi, JJ.
PARMANAND AGARWAL
VS.
PARMESHWAR DAS AGARWAL
APO No. 364 of 2010 with CS No. 47 of 2008;
PARMESHWAR DAS AGARWAL
VS.
PARMANAND AGARWAL
APO No. 365 of 2010 with CS No. 47 of 2008
PARMESHWAR DAS AGARWAL
VS.
PARMANAND AGARWAL
APO No. 366 of 2010 with CS No. 47 of 2008;
PARMANAND AGARWAL
VS.
PARMESHWAR DAS AGARWAL
APO No. 109 of 2011 with CS No. 47 of 2008;
Decided on : October 12, 2012
The court reiterated the principle that an appeal against an order granting or refusing interlocutory relief in a suit is essentially against exercise of discretion by the learned Trial Judge and that such discretion merits interference only if the same is exercised arbitrarily, capriciously or perversely.
Headnote:
FAMILY SETTLEMENT - INTERIM RELIEF - AMENDMENT OF PLAINT - JOINT FAMILY ASSETS - SEVERANCE OF STATUS - COMPANY COURT PROCEEDINGS - DISCRETION OF TRIAL COURT - FRAUD - CONCEALMENT - JURISDICTION OF COURT - ORDER 25 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
Plaintiffs filed a suit for partition of joint family assets and sought interim reliefs, including injunctions and appointment of a receiver. They also filed an application to amend the plaint to include additional family assets discovered during an income tax investigation. The defendant opposed the amendment and the interim reliefs.
Finding of the Court:
The court held that the learned Single Judge had correctly assessed the state of affairs and that the family settlement had been given effect to a large extent. The court also held that the learned Single Judge had correctly applied the law relating to amendment of pleadings and that the amendment at such early stage of the proceeding would not prejudice either of the parties.
Issues: 1. Whether the plaintiffs had made out a strong enough case of repudiation of the family settlement to grant the interim reliefs as prayed for. 2. Whether the learned Single Judge erred in allowing the amendment of the plaint as sought for by the plaintiffs.
Ratio Decidendi: 1. The court held that the learned Single Judge had correctly concluded that the family settlement had been given effect to a substantial extent and that the respective parties were in effective control of their respective shares in the terms of the said family settlement since 2007. 2. The court held that the learned Single Judge had correctly applied the law relating to amendment of pleadings and that the amendment at such early stage of the proceeding would not prejudice either of the parties.
Final Decision: 1. The court dismissed the appeal challenging the order of the learned Single Judge refusing to grant the interim reliefs. 2. The court allowed the cross-objection filed by the defendant and set aside the direction of the learned Single Judge directing the defendant to deposit a sum of Rs.4 crore with the Registrar, Original Side. 3. The court dismissed the appeal challenging the order of the learned Single Judge permitting amendment of the plaint.
K. J. Sengupta, ACJ.: These appeals are directed against a common order dated 3rd August, 2010 whereby the learned Single Judge was pleased to dispose of three interlocutory applications, namely G.A. No. 1009 of 2008, G.A. No. 2123 of 2009 and G.A. 407 of 2010.
Pursuant to an earlier order both the appeals were directed to be heard analogously. Hence they are disposed of by this common judgement and order.
2. APO No. 365 of 2010 has been taken out by the plaintiffs in the suit against the order of rejection of their prayer for interim relief in G.A. No. 1009 of 2008. The respondent Nos. 1 and 2 in the said appeal (being defendant Nos. 1 and 2 in the suit) have filed a cross-objection therein challenging the order dated 03.08.2010 to the extent it directs them to deposit a sum of Rs. 4 crore with Registrar, Original Side to the credit of the suit and also directs continuation of the interim order till such deposit is made.
3. APO No. 366 of 2010 is also taken out by the said defendant Nos. 1 and 2 in the suit challenging the aforesaid order of the learned Single Judge to the extent its permits amendment of the plaint as prayed for by the plaintiffs in the said suit in G.A. No. 407 of 2010.
4. For an affective adjudication of the aforesaid appeals, reliefs claimed by the plaintiffs in the suit in G.A. No. 1009 of 2010 and in G.A. No. 407 of 2010 are set out herein below:
5. In G.A. No. 1009 of 2010 the plaintiffs (being appellants in APO No. 365 of 2010) prayed for the following interim reliefs:
"a) An interim order of injunction thereby restraining the respondents from taking any steps for giving effect to the Memorandum of Understanding.
b) Injunction restraining the Respondents from transferring any of the Sponge Iron Plants of the respondent No.7 in any manner whatsoever.
c) A special officer/Receiver be appointed over an in respect of the 275000 shares held by the petitioner in the respondent No.7 company and returned to the respondent No.1 in compliance of their obligation under the MOU which has been transferred recorded in the name of the Sukanya Trading Pvt. Ltd.
d) An order of injunction be passed retraining the respondent No.1 either by himself or his nominees companies under his control from causing any enhancement of the share capita of respondent No.7 company;
e) An order of injunction be passed retraining the respondents and the shareholders from transferring the shares of the Respondent No.7 either within themselves or to outsiders:
f) An Administrator Special Officer be appointed to take possession of the statutory books and records of SEPL and to keep the same under his control and custody and to administer and control the assets of the respondent No.7:
g) An order of injunction be passed restraining the respondent No.9 from exercising any voting rights in respect of the said 2,75,000 shares in the respondent No.7:
h) An order of injunct ion be passed retraining the respondent Nos. 1 and 3 from disposing off, alienating, transferring, encumbering the properties mentioned in annexure (I) hereto in their individual names and or in the control of their family members and/or companies:
i) A Receiver Administrator be appointed over the properties mentioned in annexure'Q1' to maintain status quo/present condition of the same and to make inventory of all the assets including plaints and machinery's of the respondent Nos.5 and 7:
j) Ad-interim orders in terms of prayers above:
k) Pass such other order or orders as Your Lordships may deem fit and proper.
6. The plaintiffs also took out two other applications being G.A. No. 407 of 2010 praying for amendment of the plaint consequent upon their discovery of other family assets and businesses allegedly concealed by the first defendant and prayed for the following reliefs therein:
a) Proposed amendment to the plaint and Schedule-D of the plaint filed in the above suit being C.S. No.47 of 2008 in the manner morefully shown in red ink in the copy of the plaint being Annexure-F hereto a
