Concealment of material facts can impact entitlement to relief, and the application of legal provisions requires thorough adjudication based on disputed facts.

Prathiba M. Singh, J.

I.A. Nos. 794/2019 (stay), 5422/2019 (u/Order VII Rule 11) and 5423/2019 (u/Order VII Rule 11)

The present suit is for declaration, mandatory injunction and partition. The Plaintiff is the son of Late Sh. Jag Mohan Bhalla and Mrs. Vijay Kumari Bhalla. Defendant No.2 Sh. Rajiv Bhalla is the brother of the Plaintiff. Defendant No.1, Mr. Man Mohan Swaroop is the paternal uncle (Chacha) of the Plaintiff. Mr. Jag Mohan Bhalla passed away on 25th June, 2006 and Mrs. Vijay Kumari Bhalla passed away on 20th December, 1998.

2. The case of the Plaintiff is that the Plaintiff, Defendant No.1 and Defendant No.2 constitute a single family and accordingly declaration/partition is sought for the following properties:

i. C-347, Vikas Puri, New Delhi (hereinafter, “Vikas Puri property”);

ii. Property No. 976, Katra Shafi, Delhi 110006 (hereinafter, “Katra Shafi property”)

iii. First floor without roof rights and one mezzanine floor between the first floor and second floor, in property bearing no A 53, Krishna Park, New Delhi 110009 (hereinafter, “Krishna Park property”).

iv. Property being Plot No. 17, Measuring 500 sq yds. being part of Khasra no. 162/2, situated in the village of Burari, Delhi (hereinafter, “Burari property”).

v. Property being warehousing plot bearing number 303, in block A of IFC Holambi Kalan, Narela, Phase 1, Delhi (hereinafter, “Narela property”)

vi. 300 shares of M/s Glaxo India Ltd.

3. The case of the Plaintiff is that all the above properties were joint family properties and that he is entitled to his share in the above properties. The share claimed by the Plaintiff in each of the properties is mentioned in the prayer clause of the plaint.

4. The suit was listed on 21st January, 2019 on which date, an ad-interim order was passed directing status quo in respect of title and possession of all the moveable and immoveable assets. Defendant Nos. 1 and 2 have entered appearance in the matter. They have both filed their respective written statements. The Defendants have also filed applications under Order VII Rule 11 CPC seeking rejection of the plaint.

5. Mr. Asif appearing for Defendant Nos.1 and 2 submits that in so far as the Narela property is concerned, the same was allotted in the name of M/s R. S. Traders which was a partnership firm. The said partnership firm is not a registered firm. The Plaintiff cannot maintain a suit in the capacity of a partner of the firm as the same is barred by Section 69 of the Partnership Act. He relies on following judgments:-

Velji Narayan Patel v. Jayanti Lal Patel, (2009) AIR Calcutta 164;

Shreeram Finance Corporation v. Yasin Khan & Ors., (1989) 3 SCC 476;

Govindmal Gianchand v. Kunj Biharilal & Ors., (1954) AIR Bombay 364 (Vol. 41, C.N. 104)

6. It is his further submission that the partnership deed placed on record dated 3rd April, 2002 has an arbitration Clause and in any case in respect of the assets of partnership firm the present civil suit is not maintainable. Thirdly, it is submitted by him that the suit is barred by limitation as the first legal notice was issued in 2010 by the Plaintiff and no action was taken thereafter. The limitation does not get extended by issuing the second notice in 2018. Thus, he prays that the suit be rejected in respect of the Narela property.

7. In so far as the Katra Shafi property is concerned, the Defendants rely upon an MOU dated 29th March, 2007, wherein the disputes between the Plaintiff and Defendant no.2 were, in fact, resolved and it was agreed that the Plaintiff would retain the shop located at 1026, Gali Teliyan Tilak Bazar, Delhi in exchange of the Katra Shafi property, which was given to Defendant No.2. He submits that this MOU having been concealed, the Plaintiff is not entitled to any relief.

8. Insofar as the Krishna Park property is concerned, the submission of the Defendants is that this property was purchased out of a bank loan and substantial portion of the bank loan was cleared by Defendant No.2 and thus, since t