1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 413 OF 2009 IN NOTICE OF MOTION NO. 780 OF 2007 IN SUIT NO. 560 OF 2007 Nirupama M. Sanghavi .. Appellant Vs. Jitendra D. Domadia and ors. .. Respondent WITH APPEAL NO. 447 OF 2009 IN NOTICE OF MOTION NO. 780 OF 2007 IN SUIT NO. 560 OF 2007 Manhar P. Khadawala and anr. .. Appellants Vs. Jitendra D. Domadia and ors. .. Respondents WITH APPEAL NO. 448 OF 2009 IN NOTICE OF MOTION NO. 780 OF 2007 IN SUIT NO. 560 OF 2007 2 Vasant V. Mehta .. Appellant Vs. Jitendra D. Domadia and ors. .. Respondents WITH APPEAL NO. 449 OF 2009 IN NOTICE OF MOTION NO. 780 OF 2007 IN SUIT NO. 560 OF 2007 Bharat C. Patel .. Appellant Vs. Jitendra D. Domadia and ors. .. Respondents WITH APPEAL NO. 450 OF 2009 IN NOTICE OF MOTION NO. 780 OF 2007 IN SUIT NO. 560 OF 2007 Nilesh B. Patel .. Appellant Vs. Jitendra D. Domadia and ors. .. Respondents Ms. Mamta Sadh i/by Haridas & Co. for appellant in Appeal No. 423/09. Ms. Kamla C. Nichani i/by Amit Sheth for appellants in Appeal No. 447/09. Mr. Mehul Shah i/by A.G. Shah for appellant in Appeal No. 448/09. 3 Mr. R.D. Sampat a/w Vilas Jadhav for respondents. CORAM: B. H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. January 28, 2010. P.C. 1. All these appeals are directed against the order dated 18/12/2008 passed in Notice of Motion No. 780 of 2007 filed in Suit No. 560 of 2007. By the said order the Notice of Motion has been made absolute in terms of prayer clause (a) and all the appellants, who are original defendants, are aggrieved by the said order. Hence, these appeals are being disposed off by this common order. 2. M/s. Vishal Agro Developers is a partnership firm, originally constituted on 1/1/1990 and later on re-constituted under the Partnership Deed dated 12/3/1993. It had 11 partners and they represented six different families i.e. Mehta, Patel, Sanghvi, Khadawala, Kothari and Domadia. Clause 5 of the Partnership Deed went to show that the partnership firm shall deal with agricultural land, to develop farm plots etc. 3 out of the 11 partners filed Suit No. 560 of 2007 for a declaration that the suit properties 4 held individually and/or jointly by the defendants in their personal name or otherwise with any other family members are the properties of the partnership firm under the Partnership Deed dated 12/3/1993 and for an injunction restraining the defendants from creating third party interest in those properties by way of sale or otherwise. Pending the suit, the Notice of Motion was taken out for certain interim reliefs and the relief, which has been granted in terms of prayer clause (a), reads as under: “(a) That pending the hearing and final disposal of the present suit, the Hon’ble Court be pleased to restrain the Defendants, their agents, servants by an order of injunction not to create any third party interest in respect of the Suit properties by way of sale, lease, licence or any other mode of creating any third party interest or encumbrance of any kind in the Suit Properties.” 3. It was submitted by the learned counsel for the defendants that, admittedly, the agricultural land and other properties, if any, were 5 purchased in individual names and, therefore, they could not be called as the property of the partnership firm. It was also submitted that even when the suit was presented, the agricultural land purchased by the individual partners was standing in the respective names and for the revenue record, it was never the property of the partnership firm. It was also pointed out that some of the partners had not purchased the land but it was, in fact, purchased by their spouses, who were not the members of the partnership firm and, therefore, such land could not have been, even for prima facie consideration, treated as the property of the partnership firm and for all these reasons the order of temporary injunction is unsustainable and is required to be set aside. It was further stated that the learned trial Judge fell in errors in interpreting the MOU dated 19/10/2006 as well as 14/11/2006. The issue of limitation was also urged and it was submitted that the suit deserves to be dismissed only on the ground of limitation. It was further contended that there was no cause of action to file the suit and the plaintiffs-applicants had failed to make out a prima facie case to grant interim relief. 4. From the documents placed on record, the learned trial Judge noted that the entire property was purchased, though in individual names of the 6 partners or their spouses, but it was at one time in December, 1990 and they were all adjacent plots to each other from two different villages i.e. Palghar and Nadode in Taluka Khalapur, District – Alibag. The entire land, though purchased by different instruments in different individual names, formed part of one single lay out prepared for development purposes by the partnership firm. The partnership firm could not have purchased agricultural land and the individual partners by showing themselves as the agriculturists, had purchased the said land in December, 1990. As per the MOU dated 14/11/2006, the partnership had sold 84 Acres of land from the total land and the MOU was based on the minutes of the meeting. Another MOU dated 19/11/2006 related to various partnership firms and went to show that an agreement arrived at between partners, associate members, family members etc. for settlement of their disputes. Defendant Nos.1 and 2 had agreed that various properties, which are the stock-in-trade of the respective partnership firm would be sold off and the sale proceeds would be disbursed amongst the partners after payment of tax and the amount of capital. After re-conveying 4 Acres of land to the original farmer, it was decided to sell the remaining 80 Acres of land. It was also agreed that the firm was the holder of 30 non-agricultural bungalow plots scheme at Palghar and 15 of them were sold. Whereas the remaining 15 plots were 7 the stock of the firm. The sale of the remaining plots would be by auction amongst the partners inter se, if no buyer was found. In the subsequent meeting held on 21/11/2006 to discuss the disposal of the land of the partnership firm, i.e. M/s. Vishal Agro Developers (Nadode project), partners agreed that defendant no.1, plaintiff no.1 and son of plaintiff no.2 will negotiate with the buyers. The price expected by the partners who attended the meeting was set out to be Rs.3 lakh to Rs.3.5 lakh per acre and the deal will be finalized by 30/11/2006. The list of the properties of the firm and property documents was to be compiled and circulated amongst the partners and the proposal for the sale of the land would be brought up for consideration of all the partners. 5. In addition, the balance-sheet of the partnership firm as on 31/3/1994 and as on 31/3/1995 clearly went to show that the original land holders/farmers were being shown as the sundry creditors and large sums were disbursed in their names. The returns of the firm also indicated that it had invested substantial amount in the development of these two projects at Palghar and Nadode and they reflected as work in progress of the firm. We had put to the learned counsel appearing before us the said returns for two years, which clearly supported the findings recorded in the impugned order. 8 The learned trial Judge, therefore, held that the properties were purchased by the partners of the firm to be used and dealt with as the asset and property of the firm. To see as to whether the property purchased by or in the name of the partner is the property of the firm, the plaintiffs were required to prima facie show that the purchase was made from the funds of the firm or that the purchase made by individual partners were intended to be used as properties of the firm or were in fact thrown into a common hotchpotch so as to constitute the property of the firm and was used as such by the firm. The balance-sheet went to show, prima facie, that the farmers were shown as sundry creditors and substantial amount was being disbursed to them. The MOUs drawn between the partners supported the prima facie view that the properties purchased in the individual names were put in the common kitty for development and to earn profits by selling developed plots. The partners had agreed, as per the MOU dated 19/10/2006 and 14/11/2006 to treat various properties as stock-in-trade of the respective partnership firm. The well reasoned order of the learned trial Judge has considered the documents placed on record and the prima facie findings recorded cannot be termed as erroneous. None of the defendants have filed any Written Statement and if the issue of limitation is intended to be raised, that can be examined during the trial of the suit. However, as 9 per the plaintiffs the cause of action arose when some of the defendants, through their Advocates or otherwise issued public notices on or around 25/10/2006 for the disposal of the properties of the partnership firm and that is how the plaintiffs approached the court with the suit. Having regard to these public notices, prima facie, it appears that that the issue of limitation would not have come in the way of the learned trial judge in allowing the Notice of Motion partly. 6. Hence, these appeals must fail at the threshold and they are hereby dismissed in limine. (SMT. V. K. TAHILRAMANI, J.) (B. H. MARLAPALLE, J.)