*1* nms.3903.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3903 OF 2009 IN SUIT NO.2765 OF 2009 Rajesh Vijendra Sharma. ..Plaintiff -Versus- Surendra Sharma and others. ..Defendants .......... Mohan A. Dharmaraj, for the Plaintiff. D.H.Mehta a/w D.F.Sharma i/b Dharam & Company, for the Defendant Nos.1, 2, 4 and 6. Sanjay Jain i/b Pravin Mehta and Mithi & Company, for the Defendant No. 5. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 08th October, 2010. P.C. 1 The Plaintiff has filed this motion for interim relief restraining the Defendants from acting in furtherance or doing anything in pursuance of the agreement dated 17.08.2007 and the power of attorney dated 17.08.2007 so as to jeopardize the Plaintiff’s right, title and interest in respect of the suit property and the Defendant Nos.4 and 5 should be restrained by an order of injunction from transferring, alienating, inducting, parting with possession, creating any charge, so also, accepting the surrender of tenancies of the various tenants who are occupying the structure in a portion of the suit property. 2 The suit is filed by the Plaintiff for declaration that he is having undivided share in the suit property in his capacity as a heir of the deceased Vijendra Sharma and that share be given to him by partitioning *2* nms.3903.09 the property by metes and bound and therefore, the decree for partition be passed. It is in such circumstances, the Plaintiff states that the agreement which is executed by the Defendant Nos.4 and 5 on 17.08.2007 be declared as invalid, sham, bogus, void and not binding upon the Plaintiff. This suit has been filed on 06.10.2009. 3 The Plaintiff states that one Ramlal Nandalal Sharma had purchased the suit property which is more particularly described in paragraph No.1 of the plaint, by a registered conveyance dated 05.09.1947. Ramlal Nandalal Sharma died intestate on 30.06.1952 leaving behind him, his widow Smt.Gangabai and four sons viz. Vijendra Ramlal Sharma, Surendra Ramlal Sharma, Devendra Ramlal Sharma and Narendra Ramlal Sharma. Thereafter, Smt.Gangabai died on 30.10.1967 leaving a Will dated 07.10.1961 where-under the property was divided into four equal shares amongst her sons. Subsequently, Devendra Ramlal Sharma also died on 18.05.1976 leaving behind his Will dated 05.10.1971 and the shares are enlisted in paragraph No.4 of the plaint. The Plaintiff states that the partition has been recorded in a joint declaration and the said declaration is registered under Serial No.2530/1979 with the Sub Registrar of Assurance at Mumbai. By a deed of partnership dated 26.10.1979, Vijendra Ramlal Sharma, Mrs.Chandrakanta Vijendra Sharma, Bharatbhushan Vijendra Sharma, Rajesh Vijendra Sharma, Surendra Ramlal Sharma, Mrs.Pushpa S. Sharma, Sanjay S. Sharma, Narendra R. Sharma, Mrs.Sudha N. Sharma agreed to develop the property in partnership. The extract of partnership deed as obtained from the office of the Registrar of Firms is annexed as Exhibit-A to the plaint. It is stated that this partnership was dissolved and reconstituted from time to time and in the year 1980 it was made clear that all lady members would not have any right to manage the property and the said property *3* nms.3903.09 would be managed by male family members. 4 In paragraph No.8 of the plaint, it is stated that the property originally belonged to Ramlal Nandlal Sharma and therefore, it is ancestral property and it is owned by Sharma family through the firm by name “Brij Builders” which is registered under the Partnership Act, 1932. That firm was formed for development of the property but the ownership of property has remained with the individual members and not with the partnership firm. It is in such circumstances, the Plaintiff alleges that the building viz. “Ramvihar” having 37 tenants/tenements and another building viz. “Ganga Vihar” having 38 tenants/ tenements were constructed during the lifetime of his grandfather Ramlal Nandlal Sharma and in third portion of the suit property there is chawl known as “Sharma Chawl”. It is stated that the partnership firm was reconstituted on 30.03.1993 where-under the Plaintiff was shown as a partner of “Brij Builder” having 16.67% share. Thus, the Plaintiff and the Defendant Nos.1 to 3 are partners of the Brij Builders. The Brij Builders have developed only part of the property and have constructed “Devendra Apartments”. It is stated that the property card shows the details of the property and the name of the Plaintiff is also entered therein after the death of his father Vijendra Ramlal Sharma who died on 24.01.1993. It is stated that the sisters of Plaintiff have relinquished their rights, title and interest in favour of the Plaintiff and his brother Bharatbhushan (Defendant No.2) and the mother (Defendant No.6) is also beneficiary under the release deed. Thus, the rights are relinquished in favour of the Plaintiff, the Defendant Nos.2 and 6. At the same time, the Plaintiff claims 33.33% share in the suit property as owner along with his brother and mother. He states that he is having minimum 11.11% undivided share by virtue of legal heir of the father. His father would be entitled to the share of the *4* nms.3903.09 grandfather and that is how the Plaintiff asserts his share and states that the partners of the firm Brij Builders had informed him that there is a property which is an asset of the firm but that is nothing other than the suit property. However, without consent of the Plaintiff, the partners have dealt with the property by executing an agreement which is assailed and challenged in the suit by the Plaintiff and he relies upon the correspondence with the partners of the Brij Builders in that behalf. It is stated that the partnership firm has divested itself of the right, title and interest and that is how his share as a heir so also as a partner of the firm is jeopardized. He does not want to be bound by any act of the partners. In any event, the Plaintiff states that under the Partnership Act, implied authority of the partner is not to dispose of the property in its entirety. In such circumstances, the Plaintiff approached by filing suit before the City Civil Court but with grant of leave under Order-II Rule-2 of the Civil Procedure Code, the Plaintiff filed the present suit. 5 This Notice of Motion is moved in furtherance of the aforesaid final reliefs and only the Defendant No.1 has filed the affidavit in reply. The maintainability of the instant suit is challenged on the ground that in the suit filed in the City Civil Court an application was made under Order-II Rule-2 of the Civil Procedure Code but it was not granted. Thereafter, the order refusing to grant leave was challenged in the Writ Petition and this Court dismissed the petition. 6 My attention is also invited to the fact that the Plaintiff has filed Suit No.1484/2009 in the City Civil Court against the partners and firm who are identical parties before this Court in the instant suit and it is stated that the said suit is withdrawn. Now it is third attempt to stall the development at site. Even otherwise, the partnership deed dated 30.03.1993, copy of which is produced, shows that the partnership *5* nms.3903.09 business is to develop the properties and sell residential and commercial premises on ownership basis or give them on rental basis from time to time. Clause-7 of the partnership deed states that the partnership business would be managed and conducted by Surendra Ramlal Sharma (Defendant No.1), Bharatbhushan Vijendra Sharma (Defendant No.2) and Narendra Ramlal Sharma (Defendant No.3) and they can sign all documents on behalf of the partnership firm. All decisions in the matter of partnership business will be taken and given effect to by the above three partners. Relying on this clause, it is contended that the Plaintiff has full knowledge of the agreement between Brij Builders and the Defendant No. 5 to this suit. The Plaintiff was fully aware of the authority given to the partners under this partnership deed and it is then contended that the construction work has commenced and the building is to consist of ground and 11 upper floors. The work upto third floor has come up and both the Defendant Nos.1 and 5 are ready, willing and agreeable to protect the Plaintiff’s share to the extent of 11.11% in the estate or 16.67% in the partnership firm. 7 During the course of arguments, an affidavit is tendered of the partner of the Defendant No.5. Paragraph Nos.1 to 3 of this affidavit read thus:- “1. I say that as per the approved plans, built-up area sanctioned is 22,048 square feet built-up area. However, Defendant No.5 expects further construction being permitted by Municipal Corporation of Greater Mumbai to the extent of 39,620 square feet built-up area. 2. I say that on the basis that the construction permissible is 39,620 square feet built-up area, the Plaintiff’s share calculated in accordance with Development Agreement and Partnership Deed is about 1800 square feet carpet area. Defendant No.5 agrees not to sell flats No.201 and 304 aggregating to about 1875 square feet carpet area. 3. I say that if any additional FSI is sanctioned by the *6* nms.3903.09 Municipal Corporation of Greater Mumbai for this property, 16.67% of 31% of such additional FSI shall be allocated and reserved for the Plaintiff.” 8 A copy of the sanctioned plan is also placed on record. The Defendants, therefore, pray that the motion be disallowed as no case is made out for grant of interim relief. 9 With the assistance of the learned counsel appearing for the parties, I have perused the plaint and annexures thereto, so also, the affidavits on record and the decisions brought to my notice. 10 As far as the decisions and relevant provisions of the Partnership Act are concerned, there cannot be any dispute that implied authority does not extend to the extent indicated in the judgments of the Delhi High Court reported in AIR 1982 Delhi 131 (Suresh Kumar Sanghi Vs. Amrit Kumar Sanghi and others) and also of the Gujarat High Court reported in AIR 2000 Gujarat 80 (Rajnikant Hasmukhlal Golwala and others Vs. Natraj Theatre, Navsari and others). The question is whether the firm has divested of its rights as contended or not. If the agreement dated 17.08.2007 is perused in its entirety, it is clear that the owners have stated that they have agreed to enter into an agreement subject to the rights reserved as per clause-3 of the said agreement. Thereafter, in clause-4, the owners represented that they have full and absolute authority to sell by developing the property by demolishing the existing structure and consuming the entire FSI that may be permitted to be utilized thereon in accordance with the Development Control Regulations. Then various covenants of the owners have been set out and thereafter, it is stated in clause-7 that the owners allow and permit the developers to carryout the development of the property by consuming the entire FSI in the manner set out therein and clause-11 records the payments to be *7* nms.3903.09 made. Thereafter, there are various obligations and clause-34 records that on completion of the project the owners should execute a proper deed of conveyance and transfer the property in favour of the society of the flat purchasers. 11 In such circumstances, at this stage, it is difficult to hold that the firm has disposed of the property and therefore, there is any violation of the authority given by the Plaintiff to the partners. In any event, reading of clause-7 of the partnership deed makes it clear that insofar as the execution of the development agreement is concerned, the authority given is wide and comprehensive. Prima facie their acts cannot be said to be divesting the firm of its ownership rights straightaway. The agreement and the power of attorney make it clear that at this stage the firm continues to retain its title in the property. 12 Secondly, the question of grant of interim relief would arise if the Plaintiff was prompt in moving the Court. On own showing of the Plaintiff, he approached the City Civil Court when the agreement is of 2007 and finding that the earlier suit is not maintainable, he has approached this Court. I am informed that there was no ad-interim injunction granted in the Plaintiff’s favour by the City Civil Court. It is in such circumstances and when the Plaintiff is making a conflicting claim, that his conduct becomes relevant. 13 The Plaintiff asserts his claim on the basis that he has a share in the property left by the deceased and at the same time, he states that there is partnership firm in which he has been inducted as a partner and that partnership consists of himself, his brother and his mother. He complains that there is no power to dispose of the firm’s properties and assets. Clause-7 of the deed is not wide enough to cover the subject act of Defendant Nos.1, 2, 4 and 6. In such circumstances and when the *8* nms.3903.09 partnership deed ensures higher share to the Plaintiff then I do not see how he is prejudiced. Even if the property is allowed to be developed that will be by protecting the Plaintiff’s share. 14 In my view on account of the fact that the Plaintiff has approached this Court after unexplained and enormous delay and the construction is now proceeding and has come upto third floor, it would not be proper to grant interim relief so as to restrain the construction activities at site. Further, the Plaintiff has not made out any case for grant of any interim relief in terms of prayer clause (a) of the Notice of Motion. The project that is envisaged is of providing flats and tenements to the existing tenants and occupants and thereafter, sale in the open market. By this time, various commitments have been made by the firm and the developer. Similarly, considering the sums invested in the project and the Court is ensuring that the Plaintiff’s share is being protected, then even on that ground the Plaintiff is disentitled for interim injunction in terms of prayer clause (d) of the Notice of Motion. 15 Having heard the parties at some length, I am of the view that the conduct of the Plaintiff and nature of his claim as noticed above, disentitles him from blanket interim relief. This Court has ensured on account of the statements made in the affidavit of the developer and the assurance coming forth from the partners of the firm that the Plaintiff’s share to the maximum extent would be protected and preserved. The conduct of the Plaintiff in not disclosing completely to this Court the proceedings filed from time to time, disentitles him to the reliefs claimed in the Notice of Motion. 16 In the result, while disposing of the Notice of Motion this Court records the statements made in the affidavit of Parag D. Mehta affirmed on 08.10.2010 as undertakings to this Court. The Defendants *9* nms.3903.09 are, therefore, directed not to sell flat Nos.201 and 304 which have an area aggregating to about 1875 square feet (carpet area) and further if any additional Floor Space Index (FSI) is sanctioned by the Municipal Corporation of Greater Mumbai for the suit property, then, 16.67% of 31% of such additional FSI which is entitlement of the firm shall be allocated and reserved for the Plaintiff in the form of further constructed area. This construction would be in addition to the two flats bearing Nos.201 and 304 aggregating about 1875 square feet carpet area. 17 Hence, as a result of additional protection and by virtue of this undertaking, there is no reason to interfere with the construction work at site. Subject to the above, the Notice of Motion is dismissed. In the view taken by me it is not necessary to make reference to the decisions brought to my notice. The extent of authority of the partners, whether implied or otherwise, is a subject matter to be considered in the facts of each case. Therefore, the Plaintiff will have adequate opportunity to establish and prove his case at the time of hearing of the suit. 18 The Notice of Motion is, accordingly, disposed of. (S.C. Dharmadhikari, J)