1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.42 OF 2005 IN SUIT NO.1944 OF 1990 Habibulla Gulam Raza Mansoori and others ...Appellants v/s P.K. Mohammed and others ...Respondents Mr V.Y. Sanglikar i/b Mr S.M. Patel for Appellants. Mr A.S. Uraizee for Respondents. CORAM : D.K. DESHMUKH AND V.R. KINGAONKAR JJ. DATE : 15TH MARCH 2010. 2 P.C. :- 1] By this appeal, the appellants challenge the judgment and decree dated 22nd/24th September 2004 passed by the leaned Single Judge of this Court in suit No.1944 of 1990. By that judgment, the leaned Single Judge dismissed the suit filed by the present appellants. 2] The original plaintiff filed a suit claiming a decree of declaration that he is entitled to possession of the suit premises i.e. Shop Nos.3, 4 and 5 on the ground floor at the junction of 103, Shuklaji Street and 257, Bapty Road, now Parsuram Pupala Marg, Kamathipura, Bombay 400 008 and the business that is carried on in those premises solely belongs to him. He also claims permanent injunction restraining the defendants from interfering with his possession and business in the premises. The plaintiff claims that he is tenant of the suit premises and that he carried on business of restaurant in those premises for a period of fifty 3 years before he filed the suit. He claims that the defendants were his employees. He also claims that as the defendant Nos.1 and 2 were dedicated employees, he took them as partners in the business. According to the plaintiff, however, he continued to be the tenant of the premises. He claims that all licences necessary for carrying on business of restaurant in the premises are in his name. The plaintiff claims that however, the defendants filed suit No.8328 of 1988 in Bombay City Civil Court claiming a declaration that the deed of partnership dated 3rd April 1984 is sham and concocted document and in the alternative prayed for a decree of dissolution of the partnership. It appears that in that suit, an order was made for return of the plaint for its presentation to the proper Court but the defendants did not present that suit before proper Court. The plaintiff therefore claims that now since the defendants have denied existence of partnership, they are estopped from claiming that they are partners in the business that is carried on in the premises. The plaintiff therefore claims a 4 decree as indicated above. The defendants appeared and filed written statement. In the written statement, the case of the defendants was that in the year 1978, on payment of Rs.3,00,000/- the plaintiff introduced them as partners in the business. In the year 1984, they paid Rs.6,00,000/- to the plaintiff and thus, they became sole owners of the business that was being carried on in the premises. It was further the case of the defendants that at the request of the plaintiff, they agreed to accept him as a sleeping partner and gave him 10 % share. It was the case of the defendants that they are sole owners of the business carried on in the premises. On the basis of these pleadings, following issues were framed by the learned Single Judge by order dated 24th January 2000 :- (a) Whether the plaintiff proves that he is the sole proprietor of the Hotel known as Haji Khan Restaurant and as such entitled to exclusive possession of the suit premises viz. Shop Nos.3, 4 and 5 on 5 the ground floor of the junction of 103, Shuklaji Street and 237, Bapty Road (Now known as Parsuram Pupala Marg), Kamathipura, Bombay 400 008 ? (b) Whether the plaintiff proves that the defendants who were partners of the hotel business under the deed of partnership dated 3rd April 1984 have disowned the partnership and as such the plaintiff has become sole owner of the hotel business and the suit premises ? (c) Whether the plaintiff is entitled for a permanent injunction restraining the defendants from entering into the sit premises viz. Haji Khan Restaurant, situated at shop Nos.3, 4 and 5 on the ground floor at the junction of 103, Shuklaji Street and 237 Bapty Road, now known as Parsuram Pupala Marg, Kamathipura, Mumbai 400 008 ? 6 (d) Whether the plaintiff proves that the defendants are liable to pay the sum of Rs.90,000/- being the compensation at the rate of Rs.6000/- p.m. From 9.2.89 till date of filing of the suit ? (e) Whether the defendants prove that they have purchased the hotel business viz. Haji Khan Restaurant from the plaintiff on payment of Rs.9,00,000/- and the deed of partnership dated 3.4.84 is sham, bogus and colourable document and not binding upon them ? (f) Whether the plaintiff is entitled to ask for a de3claration as prayed for ? (g) What order ? It appears that before commencement of trial, by consent of the parties, issue No.(h) was framed which reads as under :- 7 (h) Whether in case the partnership is subsisting, would the suit of the plaintiff be maintainable ? One of the issues framed i.e. Issue No.(e) was whether the defendants prove that they have purchased the restaurant business viz. Haji Khan Restaurant from the plaintiff on payment of Rs. 9,00,000/- and the deed of partnership dated 3rd April 1984 is sham, bogus and colourable document and not binding upon them. It appears that a statement was made on behalf of the defendants that they do not want to lead evidence to prove issue No. (e). The leaned Single Judge therefore decided only issue No.(h) i.e. Whether the suit was maintainable ? The leaned Single Judge held that as it is the case of the plaintiff himself that the partnership between the plaintiff and the defendants is subsisting, the suit of the plaintiff is not maintainable and therefore, dismissed the suit. The plaintiff is in appeal against that order. 8 3] The submission of the learned counsel appearing for appellant is that in the plaint, it was the case of the plaintiff that according to the plaintiff, there was a partnership between the plaintiff and the defendants in relation to carrying on the business of restaurant in the suit premises. But the defendants by filing civil suit in the Bombay City Civil Court refuted that there was any partnership between the parties and therefore, it was the case of the plaintiff that in view of this stand taken by the defendants, they are estopped from claiming that there is any subsisting partnership between the parties and therefore, the plaintiff is entitled to a decree of permanent injunction against the defendants. The learned counsel submits that in the judgment, the leaned Single Judge has referred to this stand of the plaintiff in the plaint, however the learned Single Judge has said that as the plaintiff has stated in the plaint that there was a subsisting partnership, the plaintiff cannot get reliefs that he has sought 9 in the plaint. The learned counsel submits that the learned Single Judge failed to appreciate that it was the case of the defendants not only in their suit in the Bombay City Civil Court but also in their written statement filed before this Court that there was no subsisting partnership between the parties and therefore, as it was the case of the plaintiff also, that in view of the stand taken by the defendants in the Bombay City Civil Court, there is no subsisting partnership, had to be accepted. The learned counsel appearing for defendants took us through the pleadings viz. The suit filed by the defendants in the Bombay City Civil Court, the plaint filed by the plaintiff in this Court and the written statement filed by the defendants in this Court to claim that it was the case of the defendants in the written statement filed in this Court that there was a subsisting partnership between the parties. He claims that it was the case of the defendants in their plaint in the Bombay City Civil Court that there was subsisting partnership. The learned counsel therefore submitted that the 10 learned Single Judge was justified in dismissing the suit for the reason that there was a subsisting partnership. 4] In view of these rival submissions, it becomes necessary to find out what was the case of the defendant in so far as the existence of partnership is concerned. First in point of time comes the plaint filed by the defendants in the Bombay City Civil Court. In paragraph 3 of the plaint, they claimed that in the year 1974 as the plaintiff became old and was incapable of carrying on the business, the plaintiff introduced the defendants as partners with 50 % share. They claimed that from 1974 till 1983, this arrangement continued. Paragraph 3 reads as under :- 3. The plaintiffs say that in or about the year 1974, by reason of the defendant being old and partially incapacitated by reason of series of ailments, the defendant 11 informed the plaintiffs that the former desired to induct the plaintiffs as the partners in the said Eating House Establishment. The defendant informed the plaintiffs that the purpose to part with 50 % of the investments effected by him in the said Establishment so that the plaintiffs could relieve the defendant of his responsibilities to that extent. In pursuance thereof the plaintiffs joined the defendant as 50 paise in a Rupee partnership in the conducting of the said business. With the above, for all intents and purposes the plaintiffs themselves had to shoulder the entire responsibilities of the said business until or about the year 1983. Then, it is their case that towards the end of the year 1983, as the health of the plaintiff further deteriorated, on payment of Rs.9,00,000/- by the defendants to the plaintiff, the plaintiff 12 transferred his entire interest in the business in favour of the defendants. Paragraph 4 of the plaint reads as under :- 4. The plaintiffs say that towards the end of the year 1983, the condition of health of the defendant further deteriorated to such an extent that the defendant expressed his desire to be relieved of his partnership with the plaintiffs by taking accounts of the said Establishment. In deference thereof the plaintiffs paid to the defendant a sum of Rs.9/- lacs of which an amount of Rs. 90,000/- was paid in cheque drawn in favour of the defendant on Syndicate Bank, Lamington Road Branch, Bombay, after taking into account of the monies due and payable to the defendant. The plaintiffs say that after having thus remitted to the defendant the said sum of Rs.9 lacs the plaintiffs requested the defendant to pass a writing 13 in favour of the plaintiffs in token of the said amount having been paid to and received by the defendant. However, the defendant procrastinated executing any such writing nor did the plaintiffs insisted on the defendant doing so considering the fluid state of health of the defendant. The defendants further pleaded in the plaint in the Bombay City Civil Court that after having relieved all the responsibilities in relation to the business at the end of the year 1983, the plaintiff approached the defendants with the proposal to give him 10 % share in the business as a sleeping partner. Then they pleaded that pursuant to this, a partnership deed was prepared which they signed but they claimed that they had no intention to sign it. Paragraph 5 (wrongly typed as paragraph 4) of the plaint reads as under :- 5. The plaintiffs say that after having thus relieved the defendant of his 14 partnership vis-a-vis the said hotel, the plaintiffs took over the reins of administration of the said hotel independently. However, in or about the month of April 1984, upon the condition of health of the defendant improving, the defendant approached the plaintiffs with a request to take him up as a sleeping partner in respect of the said hotel. The plaintiffs say that after having settled the accounts of the defendant, there was really nothing that the plaintiffs could do in furtherance of the said request so made by the defendant. In view however of the fact that the plaintiffs were brought up by the defendant in the said hotel business and having regard to the old age and health condition of the defendant, the plaintiffs agreed the defendant was not required to invest any amount by way of his share therein. The plaintiffs say that upon the plaintiffs having agreed to the said 15 request, the plaintiffs requested the defendant to draw up a partnership deed incorporating therein the defendant as one of the nominal partners entitled to 10 paise in a Rupee. The plaintiffs further say that as was the practice, the plaintiffs having reposed their absolute trust and confidence in the integrity of the defendant, requested him to present to the plaintiffs a partnership deed in the manner as aforesaid. The plaintiffs say that both the plaintiffs are brothers. Save and except signing their names in English, the plaintiffs hardly have any working knowledge of the said language. In pursuance of the plaintiffs desire that the defendant shall duly get the partnership deed prepared as aforesaid, the defendant presented to the plaintiffs what he called the partnership deed and requested the plaintiffs to authenticate the same. The plaintiffs say that in good 16 faith and without application of mind the plaintiffs signed the same, without getting the contents thereof either read over or interpreted to them, believing that the said partnership deed would be drafted in the manner in which the plaintiffs requested the defendant to do. In that plaint, by prayer clause (a), the defendants have prayed that it be declared that the purported deed of partnership dated 1-4-1983 is sham, bogus, colourable, fictitious and that in any case the said deed of partnership is incapable of being acted upon in law. Thus, in a nutshell, their case in the Bombay City Civil Court was that they were introduced as partners of 50 % share without payment of anything by the plaintiff in the year 1974, that from 1974 to 1983 they were functioning as partners having 50 % share, at the end of the year 1983 they paid Rs.9,00,000/- to the plaintiff and became sole owners of the business, and the plaintiff walked out totally. That in 17 April 1983, they signed a deed of partnership where in plaintiff was given 10 % share with no intention to act upon that deed of partnership and therefore, they are claiming a decree of declaration that the deed of partnership which they have signed is bogus. Thus, it was the case of the plaintiffs in their plaint filed in the Bombay City Civil Court that there is no partnership between the plaintiffs and the defendant except the one which gives the defendant 10 % share which the defendant has no intention to act upon. It is because of these pleadings, the plaintiff in his suit in paragraph 16 claimed thus :- The plaintiff hence states that the defendant Nos.1 and 2 having the partnership with the plaintiff for Haji Khan Restaurant are estopped and debarred from making a false claim as partners therein. The plaintiff is therefore entitled to declaration that there is no partnership between the plaintiff and 18 defendant Nos.1 and 2 for Haji Khan Restaurant as the defendant Nos.1 and 2 themselves have disowned the partnership and defendant Nos.1 and 2 and/or the defendant Nos.3 and 4 have no right to come upon or use or remain in the suit premises alongwith the plaintiff who is solemnly entitled to the right of possession thereof exclusively. Perusal of the written statement of the defendants filed in the High Court civil suit shows that in the written statement, they come up with a totally different case. They have come up with a new case of there being no partnership in the year 1974. Now they claimed that in the year 1978, they were introduced as 50 % partners on payment of Rs. 3,00,00/-. In their plaint in the Bombay City Civil Court, they did not claim that they have made any payment in the year 1978 or even in the year 1974. Then they claim that in the year 1984, they paid Rs. 6,00,000/- to the plaintiff and the plaintiff on 19 receiving the money walked out of the business of the restaurant. Paragraph 7 of the written statement reads thus :- 7. It is to be noted that when the plaintiff sought to surrender his 50 % share in the suit hotel in or about the year 1978, these defendants have paid to the plaintiff a sum of Rs.3.0 lakhs representing the 50 % in the suit restaurant. In pursuance whereof the plaintiff surrendered his right, title and interest in respect of the suit restaurant and these defendants were taken in as partners alongwith the plaintiff. The said arrangement continued till or about the year 1984 when on the ground of deteriorating state of his health, the plaintiff requested these defendants to relieve him of his partnership upon the defendants paying the plaintiff Rs.6.00 lakhs being his balance shares in the suit 20 business. The defendants obliged the plaintiff by generating requisite funds for the purpose. They even claimed that after having received Rs.9,00,000/- from the defendants, Rs. 3,00,000/- in the year 1978 and Rs.6,00,000/- in the year 1q984, the plaintiff was obliged to transfer rent bills in their favour and they had accordingly approached the landlord in the year 1988 but the landlord refused to transfer the rent bills without the consent of the plaintiff. Then in paragraph 9, the defendants claim thus :- These defendants say that consequent upon the release of the plaintiff by these defendants, the plaintiff had long last retired of the plaintiff having received the said sum of Rs.9 lakhs in the aggregate, the plaintiff cannot now be heard to say that he is the alleged owner of the suit business and that these 21 defendants purportedly lost their rights of ownership whereof. What is said in the reply to paragraph 16 of the plaint by the defendants is interesting. It reads as under :- 32. With reference to para 16 thereof, so far as these defendants are concerned, the suit partnership come to its close at the end of the year 1983. If, as it seems likely, the plaintiff is endeavouring to build up a story that the purported partnership still subsists in terms of Exh. C to the plaint, even then these defendants submit that all that the plaintiff would be entitled to is his share to the tune of 10 %. In the extreme eventuality of the City Civil Court at Bombay holding that such an alleged partnership subsists then in that case the said Court is bound to consider granting of the alternative prayers of dissolving the partnership. These defendants however deny 22 that these defendants are allegedly false claim of partnership therein as alleged or otherwise. It is submitted that it is the case of the plaintiff himself that these defendants are the partners and as such entitled to 90 % share herein. That being so, one fails to understand as to how the plaintiff could blow hot and cold from the same breath. These defendants categorically deny as reprehensible the allegation that the plaintiff is entitled to a declaration that these defendants have no right, title or interest in the suit business as alleged or otherwise. These defendants say that consequent upon the plaintiff himself having volunteered to retire from the suit business in the circumstances stated hereinabove and in consideration whereof the plaintiff having received the monetary consideration as demanded by him, for all intents and purposes there being no partnership effective from the date as 23 aforesaid, these defendants believe that they are entitled to claim that there is no partnership said to be subsisting qua the suit business. It is clear from what is quoted above that apart from taking contradictory stands from time to time, one stand adopted consistently by the defendants is that there is no subsisting partnership between the parties. If there is no subsisting partnership between the parties, in our opinion, the learned Single Judge was at all not justified in dismissing the suit for that reason. The judgment of the learned Single Judge therefore is liable to be set aside. As the suit has been dismissed on the ground of maintainability without considering the merits, normally we would have remitted the matte back to the learned Single Judge for consideration of other aspects. However, the only defence on merits raised by the defendants was that they have purchased the business and the tenancy for Rs.9,00,000/- as claimed by them but as 24 has been recorded by the learned Single Judge, the defendants declined to lead evidence to prove that issue. If the defendants are not in a position to prove that they have purchased the business and therefore, they are entitled to carry on business, then in our opinion, the plaintiff would be entitled to the decree claimed by him. It is clear from the record that it is an admitted position that the plaintiff is the tenant of the premises. Any interest if at all the defendants were claiming was in the business of the restaurant and they were claiming that business on account of alleged purchase by making payment of Rs.9,00,000/- and as the defendants have categorically stated that they are not in a position to lead any evidence to prove their case, then in our opinion, there is no alternative but to grant decree in favour of the plaintiff. In the result therefore, in our opinion, following order would meet the ends of justice. 5] The judgment and decree impugned in the appeal is set aside, the suit of the plaintiff is decreed in terms of prayer clauses (a) and (b). The 25 defendants shall pay cost of the plaintiff as incurred. 6] In view of this order, the Court Receiver, who has been appointed as Receiver of the premises, shall stand discharged. The Court Receiver shall pay the amount of royalty that may be deposited with the Court Receiver, to the plaintiff and place the plaintiff in vacant and peaceful possession of the premises. However, at the request of the learned counsel appearing for defendants, the Court Receiver is directed to place the plaintiff in possession pursuant to this order after expiry of a period of eight weeks from today. Court Receiver and parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. (JUSTICE D.K. DESHMUKH) (JUSTICE V.R. KINGAONKAR)