Delhi District Court
Smt. Usha Gupta vs Sh. Satya Sheel Gupta on 27 August, 2019
IN THE COURT OF SH. DEEPAK DABAS:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/608208/2016
1. SMT. USHA GUPTA
wife of Shri H.C. Gupta,
R/o S-318, Greater Kailash-I,
New Delhi.
2. SHRI SHARAD KUMAR GUPTA,
S/o Shri H.C. Gupta
R/o S-318, Greater Kailash Part-I,
New Delhi.
.......Plaintiffs
Vs.
1. SH. SATYA SHEEL GUPTA
S/o Sh. Jaipal Mal Gupta
Previously R/o H.No. 5008,
Bazar Sirkhiwalan, Jaisav Place,
Hamdard Marg, Hauz Qazi, Delhi.
At present at -38,
Anand Lok, New Delhi.
2. SHRI MAHESH NARAIN,
S/o Shri Kishan Narain,
R/o House No. 3, Jamuna Road
Delhi.
3. SH. ANIL BANSAL
S/o Lt. Sh. Lala Ram Kishore,
R/o C-8, Geetanjali Enclave,
New Delhi.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 1/90
4. SHRI BHOLA NATH
S/o Shri Kedar Nath
R/o 3334, Gali Pipal Mahadev,
Hauz Qazi
Delhi-110006
5. M/S. MANI LAL & BROTHERS
Shop no. 6, Chawri Bazar,
Delhi-110006.
6. SMT. KAILASH WATI
wife of Late Sh. Mahabir Parshad
R/o 2nd Floor, Jaisav Place
5007, Bazar Sirkhiwalan, Hamdard Marg,
Hauz Qazi, Delhi-110006
7. SH. M.K. AGGARWAL,
CHARTERED ACCOUNTANT,
2/3 A, Ansari Road, Darya Ganj,
New Delhi-110002
8. DELHI REGISTERED STOCK-HOLDERS (I&S)
Association Limited, Hauz Qazi, Delhi
Through Shri R.D. Gupta
Secretary-cum-Director of the said company.
...........Defendant (s)
Date of institution :- 28.09.1984
Order Reserved On :- 24.11.2018
Date of Decision :- 27.08.2019
For Plaintiffs:- Sh. Vijay Kumar Gupta, Advocate.
For LR No.1 of Defendant no.1:- Sh. Manmohan Gupta, Advocate.
For LR No.2 of Defendant no.1:- Sh. Vinay Kumar, Advocate.
For Defendant No.2 :- None
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 2/90
For Defendant No.3 :- None
For Defendant No.4 :- None
For Defendant No.5 :- None
For Defendant No.6 :- None
For Defendant No.7 :- None
For Defendant No.8 :- None
Suit for Declartion to the effect that plaintiff no. 1 is the sole tenant
of shop no. 3670, Chawri Bazar, Delhi and was the sole proprietor of
the business entitled M/s. Chhotey Lal Jaipal Mal till 01.04.1983 on
which date she took in her son, plaintiff no. 2, as a partner with her
in the businesses known as M/s. Chhotey Lal Jaipal Mal and M/s
Chhotey Lal Sharad Kumar carried on in shop no. 3670, Chawri
Bazar, Delhi and for an injunction restraining the defendants in any
way disturbing the possession of the plaintiffs of the said shop and
interfering with her businesses.
JUDGMENT
Vide this judgment, I shall decide the present suit filed by plaintiffs against defendants seeking declaration, injunction as well as rendition of accounts.
At the outset, it is pertinent to mention that:-
(a) The present case is about 35 years old. The file of present case is extremely bulky one and it has been kept in 14-15 steel boxes (trunks).
It includes the documents seized by local commissioner appointed by Hon'ble High Court. It is also pertinent to mention that plaint filed by plaintiffs is running in 32 pages. Written statement filed by defendant no.-1 is running in 52 pages, written statement filed by defendant no.-2 & 8 is running into 35 pages, written statement filed by defendant no.-3 & 4 is running in 79 pages, written statement filed by defendant no.-5 is Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 3/90 running in 15 pages and written statement filed by defendant no.-7 is running in 8 pages. Plaintiffs have also filed replication to written statement filed by defendants.
(b) Prayer/relief regarding rendition of accounts was deleted vide order dated 24.11.2018 against all defendants as requested by plaintiff no.-2 vide his statement dated 24.11.2018.
(c) The aforesaid name and address of parties is as per the original plaint/memo of parties.
(d) Plaintiff No.1 i.e. Smt. Usha Gupta had expired on 14 th January 1987 and her legal heirs were impleaded as a party in the present suit vide Order dated 22.05.1987.
(e) Defendant No.1 i.e. Sh. Satyasheel Gupta had also expired on 20.10.2017 and his legal heirs were also impleaded as a party in the present suit.
(f) Defendant No.2 i.e. Sh. Mahesh Narain had also expired and his legal heirs were also impleded as a party in the present suit. Legal heirs of defendant No.2 were proceeded exparte vide order dated 18.02.2017.
(g)Defendant No.3 i.e. Sh. Anil Bansal was deleted from array of parties vide Order dated 25.02.2017.
(h)Defendant No.4 i.e. Shri Bhola Nath had also expired and his name was also deleted from array of parties vide Order dated 24.05.2002.
(i)Defendant No.5 i.e. M/s Mani Lal & Brothers was proceeded ex-parte vide Order dated 30.09.2004.
(j)Defendant No.6 i.e. Smt. Kailash Wati had also expired before Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 4/90 filing her written statement and plaintiffs were granted exemption from bringing her LRs on record vide Order dated 19.02.1985.
(k)Defendant No.7 i.e. Shri M.K. Aggarwal was also proceeded ex-parte vide Order dated 19.10.2006.
(l)Defendant No.8 i.e. Delhi Registered Stock-holders (I&S) Association Limited was also proceeded exparte vide order dated 18.02.2017.
A. CASE OF PLAINTIFFS IN BRIEF:-
1. According to plaintiffs, Sh. Chhotey Lal, father of plaintiff no. 1 was a tenant in shop no. 3670, Chawri Bazar, Delhi since last about 60 years under the then owner/landlord. It was a single shop opening towards Chawri Bazar, Delhi and there was no other access to the shop.
Sh. Chhotey Lal was running his business of Hardware under the name and style of M/s. Chhotey Lal Jaipal Mal in the said shop. The building in which the shop was situated bears (at present) Municipal nos. 3670, 3485 and 3486. On 04.07.1943, the owner/landlord sold the front portion of the building bearing no. 3670 to M/s. Mani Lal & Brothers (Defendant No.5), while the back portion which now bears no. 3485 and 3486 was retained. Thus, the tenancy from July, 1943 was split up between the two landlords i.e Defendant No.6 and Defendant No.5. Sh. Chhotey Lal was paying rent to both of them.
2. According to plaintiffs, in 1955, Sh. Chhotey Lal sold a part of his stock in trade worth about Rs. 50,000/- to Sh. Chetan Gupta, Iron Merchants, Bazar Sirkhiwalan, Delhi. Sh Chhotey Lal and Sh. Chetan Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 5/90 Gupta had an arrangement between themselves that the stocks purchased by Sh. Chetan Gupta would not be removed from the shop but would be sold by him from very shop premises. The remaining stocks in trade in the shop was used to be sold by Sh. Chhotey Lal himself.
3. According to plaintiffs, Sh. Chhotey Lal expired at Delhi on 28.07.1955. Thereafter his wife / widow i.e. Smt. Bhagwan Devi (mother of Plaintiff No.1) began to manage the business through her employees. Sh. Chetan Gupta hypothecated some of the goods purchased by him and lying in shop No.3670, Chawri Bazar, Delhi with The Punjab National Bank Ltd, Chawri Bazar, Delhi by way of security for the loan raised from the Bank. However, he failed to clear the loan and the bank on account of default in re-payment of loan took possession of the goods and sealed the shop.
4. According to plaintiffs, on 22.07.1961, M/s. Mani Lal & Brothers (Defendant No.5) filed a petition for eviction against M/s. Chhotey Lal Jaipal Mal, Smt. Bhagwan Devi, Sh. Chetan Gupta and The Punjab National Bank on the grounds of alleged sub-letting by the tenant. Smt. Bhagwan Devi died during the pendency of said petition. Plaintiff No.-1 i.e. Smt. Usha Gupta was brought on record as her legal representative. Later on said petition was dismissed by Ld. Addl. Rent Controller, Delhi vide order dated 02.08.1966.
5. According to plaintiffs, an appeal filed by defendant No.5 against the judgment dated 02.08.1966 was also dismissed by Ld. Rent Control Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 6/90 Tribunal, Delhi vide order dated 27.11.1967. Defendant No.5 filed second appeal in Hon'ble High Court of Delhi against said judgment. During the pendency of second appeal, the hypothecated goods were removed from the shop and the bank deposited the keys in the Hon'ble High Court of Delhi. Thereafter, second appeal was also dismissed vide order dated 24.12.1970.
6. According to plaintiffs, in compliance of aforesaid judgment passed by Hon'ble High Court, keys and possession of said shop i.e. Shop No. 3670, Chawri Bazar, Delhi was delivered to plaintiff No.1 on 11.02.1971 and since then plaintiff No.1 is continuing in possession of the said shop as a tenant in her own right.
7. According to plaintiffs, in April 1971, Smt. Usha Gupta (plaintiff No.1) started business as a dealer of cement manufactured by Cement Corporation of India under the name and style of M/s. Chhotey Lal Sharad Kumar, which was her sole proprietory business. This business continued till April 1973. Defendant No.3 i.e. Sh. Anil Bansal was an employee of plaintiff No.1 in the cement business. In July 1971 the stock of cement was shifted to a godown in Village Garhi near East of Kailash, New Delhi from where delivery used to be made to the customers against challans issued from the shop No. 3670, Chawri Bazar, Delhi. When plaintiff No.1 had started her business as cement dealer under the name & style of M/s Chhotey Lal Sharad Kumar, she opened a bank account in that name with National & Grindlays Bank, Asaf Ali Road and also with Union Bank of India, Chawri Bazar, Delhi. She alone was operating the Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 7/90 said accounts. The said business was discontinued in end of April 1973.
8. According to plaintiffs, in July, 1971, business of sale of wirenetting was started in said shop under the name of M/s. Chhotey Lal Jaipal Mal of which plaintiff No.1 was the sole proprietor. Defendant No.3 i.e. Sh. Anil Bansal continued in the employment of M/s. Chhotey Lal Jaipal Mal when plaintiff No.1 started the business of wirenetting under the name and style of M/s Chhotey Lal Jaipal Mal. Plaintiff No.1 opened an account with National & Grindlays Bank Ltd. as sole proprietor of said business and operated the said account.
9. According to plaintiffs, on 29.01.1973, defendant No.5 filed second petition for eviction of M/s. Chhotey Lal Jaipal Mal, Smt. Usha Gupta@Satyawati (plaintiff no.1) and M/s Chhotey Lal Sharad Kumar from said shop i.e. shop No. 3670, Chawri Bazar, Delhi under Section 14 (1) (a), (b) and (j) of the Delhi Rent Control Act, 1958. The said petition was also dismissed by Ld. Additional Rent Controller, Delhi vide judgment dated 17.08.1977. No appeal against judgment dated 17.08.1977 was filed by defendant No.-5.
10. According to plaintiffs, in the year 1973, husband of plaintiff No.1 i.e. Smt. Usha Gupta @ Satyawati was posted at Calcutta and in the beginning of 1973, she went to Calcutta to join her husband. Plaintiff no.2 also joined a School in Calcutta in 1973. In July 1971, when business of wirenetting was started it became imperative for plaintiff no.- 1 to arrive at some arrangement for running the said business because of Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 8/90 likelihood of plaintiff no.-1 leaving Delhi and joining her husband in Calcutta. Plaintiff no.-1 then arrived at an oral arrangement(on commission basis) with M/s Gayatri Enterprises for management and supervision of said wirenetting business.
11. According to plaintiffs, M/s Gayatri Enterprises is a concern of Anil Bansal (Defendant no.-3). Mr. Anil Bansal is brother in law of Satyasheel Gupta(defendant no.-1). Defendant no.-1 is the son of cousin of plaintiff no.-1. Plaintiff no.-1 authorized Sh. Anil Bansal and one Sh. Vijay Tandon, an employee of M/s Chhotey Lal Jaipal Mal to jointly operate the account of plaintiff no.-1 maintained under the style of "M/s Chhotey Lal Jai Pal Mal" and "M/s Chhotey Lal Sharad Kumar" with the National and Grindlays Bank as her authorized signatories. The account of M/s Chhotey Lal Jaipal Mal was operated till the time another account was opened on 31.01.1974 by plaintiff no.-1 with Canara Bank, Hauz Qazi as sole proprietor of M/s Chhotey Lal Jaipal Mal. The amount standing to the credit in the account of M/s Chhotey Lal Sharad Kumar with National and Grindlays Bank was got transferred to the account of M/s Chhotey Lal Jaipal Mal with the Canara Bank. The address furnished to banks for said accounts was shop No.3670, Chawri Bazar, Delhi. From the inception of the account with Canara Bank, Plaintiff no.1 authorized Sh. Anil Bansal and Sh. Vijay Tandon jointly to operate this account as her authorized signatories. However, Sh. Vijay Tandon left service and consequently, Sh. S.N. Behra(another employee) was given joint authority with Sh. Anil Bansal to operate the account. Later on Sh. S.N. Behra also left the service and authority to operate said Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 9/90 account was given to Sh. C.K. Tayal(another employee) jointly with Sh. Anil Bansal. Thereafter, Sh C.K. Tayal also left service and in August 1977, Sh. Bhola Nath (defendant no.-4) was made joint signatory along with Sh. Anil Bansal to operate said account on behalf of plaintiff no.-1. Subsequently, on discovery of some fraud, plaintiff no.-1 on 18.05.1984 cancelled the authorization of Sh. Anil Bansal(defendant no.-3) as well as of Sh. Bhola Nath(defendant no.-4), to operate the said account.
12. According to plaintiffs, plaintiff no.-1 was submitting her Income Tax Return of the business in name of M/s Chhotey Lal Jaipal Mal and also M/s Chhotey Lal Sharad Kumar. Income Tax Returns for the financial year i.e. 1971-72, 1972-73 and 1973-74 were signed by her as sole proprietor of said firms and she was assessed accordingly. The income tax returns for the financial year 1974-75 to 1982-83 were also filed by plaintiff no.-1 on behalf of M/s Chhotey Lal Jaipal Mal as sole proprietor. Plaintiff no.-1 was also registered as Sole proprietor thereof under the shops and establishment act as well as the Central and Delhi Sales Tax Acts. The books of accounts used to be maintained by defendant no.-3 and defendant no.-7 used to attend Income Tax Proceedings alongwith defendant no.-3 as authorized person on behalf of plaintiff no.-1.
13. According to plaintiffs, it appears that subsequently defendant no.1, defendant no.-3, defendant no.-4 and defendant no.-7 entered into a conspiracy between themselves to take illegal possession of said shop. In 1983, plaintiff no.-1 had gone to Houston, USA for bypass heart surgery Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 10/90 of her husband. At Houston, USA plaintiff no.-1 received a letter dated 05.08.1983 from defendant no.-3 to the effect that the overdraft limit sanctioned by the bank has been exhausted and more finances for the business are required but the bank is not prepared to grant further facility till loan papers are signed by plaintiff. Defendant no.-3 with his letter dated 05.08.1983 enclosed the draft of Power of Attorney and requested plaintiff to execute and get the same attested by a notary public at Houston USA and send the same to him. Plaintiff no.-1 accordingly executed power of attorney in favour of defendant no.-3 and after getting the same attested by a Notary Public sent the same to him. Enhanced facility of overdraft was obtained in the account of plaintiff no.-1.
14. Plaintiff no.-2 came to Delhi in September 1982 from Calcutta and started working at the shop w.e.f. first week of September 1982. Since plaintiff no.-2 had not done any business earlier, he was working at the shop in the nature of a trainee and stipend of Rs.300/- per month was being paid to him by cheque and his signatures were obtained on the counterfoils.
15. According to plaintiffs, on account of illness of plaintiff no.-1, she took in plaintiff no.-2 as a partner in the business with 50% share in the profit and loss vide a deed of partnership dated 24.01.1984 w.e.f. 01.04.1983. The partnership was duly registered under Section 58 of The Partnership Act 1932.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 11/9016. According to plaintiffs, defendant no.-1, 3 and 4 have misappropriated funds of the firm i.e. M/s Chhotey Lal Jaipal Mal. They feared that because of working of plaintiff no.-2 at the shop their acts of misappropriation would be disclosed sooner or later. They entered into a conspiracy to manipulate the books of accounts to conceal misappropriation and to provide some sort of defence for themselves. They in conspiracy with defendant no.-7 made entries in the books of accounts without the knowledge and consent of plaintiff no.-1. Defendants entered into the conspiracy in order to save themselves and ultimately to take over possession of said shop and also to oust the plaintiffs from the business altogether.
17. According to plaintiffs, suspicion of plaintiff no.-1 as to malafide intention of defendant no.-3 arose on 03.04.1984 when some books of accounts came into her hands. It contained a photostat copy of assessment order dated 02.03.1984. As per said order, from the books produced by defendant no.-3 before Income Tax Officer plaintiff no.-1 was shown as a partner with M/s Arya Shyam Lal Jaipal Mal which as far as known to plaintiff no.-1 is a HUF Concern of defendant no.-1. According to plaintiffs, plaintiff no.-1 never entered into any partnership with defendant no.-1 at any time and no deed of partnership was ever executed by her with said concern. Even no partnership was ever registered in that regard. Plaintiff no.-1 had never signed on any form No.11 or 12 for registration of said firm with Income Tax Authorities. Plaintiff no.-1 asked defendant no.-7 to handover all her income tax papers pertaining to M/s Chhotey Lal Jaipal Mal and M/s Chhotey Lal Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 12/90 Sharad Kumar. However, defendant no.7 did not hand over said documents. Defendant no.-7 further stated that all the documents have been handed over by him to defendant no.-1. Plaintiff no.-1 was compelled to file an appeal against assessment order dated 02.03.1984 before the appellate assistant commissioner of Income Tax.
18. According to plaintiffs, manipulation of books of accounts led to disputes between plaintiffs on one hand and defendants no.-1 & 3 on other hand. Plaintiffs decided to end and terminate the arrangements between plaintiff no.-1 and defendant no.-3. However, defendant no.-3 wanted time for negotiations and settlement. Negotiations started in first week of April 1984 and defendant no.-3 requested that he should be given some compensation for termination of the arrangement as he would suffer financial losses by such termination. Since, no settlement was arrived at, plaintiff filed an appeal on 01.05.1984 before the appellate assistant commissioner of income tax to safe guard her rights. Marriage of plaintiff no.-2 was fixed for 08.05.1984 and plaintiffs were busy in making arrangements for the marriage. After solemnization of his marriage, on 17.05.1984, plaintiff no.-2 went to bank to enquire about the balance available in O.C.C. Account of the Firm. There plaintiff no.-2 came to know that overdraft limit has been cancelled and the entire amount lying in that account has been transferred to defendant no.-8. Plaintiffs realized that defendant no.-1 to 4 and defendant no.-7 have played fraud upon them and had taken advantage of their complacency. In para no.-21 of plaint, plaintiffs have stated in detail the modus- operandi adopted by defendants to play fraud upon them.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 13/9019. According to plaintiffs, from 30.04.1984 till 11.05.1984, not even a single item was taken delivery of by defendant no.-8 from the premises of M/s Chhotey Lal Jaipal Mal. Even no cash memo or any bill was issued from the shop mentioning the name of defendant no.-8. In fact all sales made at the shop w.e.f. 01.05.1984 till 05.06.1984 are on cash memos of M/s Chhotey Lal Jaipal Mal. There was in fact no sale by M/s Chhotey Lal Jaipal Mal to defendant no.-8 under bill dated 30.04.1984. The payments allegedly made by cheques dated 03.04.1984 and 01.051984 were only made with a view to immediately withdraw the amount and only get bank entries made. No actual payment was received, no ownership in the goods passed, there was no sale and even no sales tax was ever charged or paid. The alleged sale was not brought to the knowledge of plaintiffs. There was no pressing necessity to liquidate the entire stocks and that to at the purchase price. Only a show of sale was made and false documents fabricated to provide false supporting evidence of an alleged sale.
20. According to plaintiffs, on 18.05.1984 plaintiff no.-1 informed her bank regarding cancellation of authorization of Sh. Anil Bansal and Sh. Bhola Nath to operate her bank account, vide a letter. After receipt of said letter, the bank continued the account treating it as C.D. Account because there was no overdraft limit at that time. Plaintiff no.-1 thereafter issued several cheques from said account and no protest was raised by defendants no.-3 & 4 against issue of said cheques by her or the cancellation of their authorization.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 14/9021. According to plaintiffs, on 06.06.1984, plaintiff no.-1 asked plaintiff no.-2 as well as Sh. Mahesh Chand(her brother in law) to collect duplicate keys of the shop from defendant no.-3 or defendant no.-4 whoever came to the shop. On that day, after Sh. Lal Bahadur Singh(Peon) opened the locks, the keys were collected from him and fresh locks were put on the shop to prevent defendant no.-3 from entering the shop.
22. According to plaintiffs, defendant no.-1 to 4 instigated Lal Bahadur Singh to lodge a false report against plaintiffs with PS Hauz Qazi Delhi. Police registered a case under Section 341 I.P.C. against plaintiff no.-2. On 11.06.1984, SHO illegally and without any authority of law seized one set of keys from plaintiff no.-2 after preparing seizure memo. Thereafter, the other set was also similarly seized from plaintiff no.-2 on 12.06.1984. No copy of either seizure memo was given to plaintiff no.-1 and the keys were kept at Police Station. According to plaintiffs, no one except plaintiffs have any right to enter the shop in question as plaintiff no.-1 has been in continuous possession thereof since 1971.
23. According to plaintiffs, on 11.06.1984 police recorded statement of defendant no.-1, defendant no.-2, defendant no.-3, defendant no.-4, Lal Bahadur Singh as well as of plaintiffs. In his statement, defendant no.-1 stated/claimed to be a partner of M/s Chhotey Lal Jaipal Mal since 01.08.1983 with plaintiff no.-1 and M/s Arya Shyam Lal Jaipal Mal. Defendant no.-1 also claimed that he had acquired 25% share in said Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 15/90 firm and further claimed to be a tenant of the back portion of said shop. Defendant no.-1 further claimed that he had sublet the back portion to defendant no.-8 w.e.f. 01.05.1984 with the consent of landlord i.e. defendant no.-6. Defendant no.-1 also produced a receipt bearing no.77 dated 20.02.1984 purported to be issued by defendant no.-6 in favour of "Satyasheel Gupta Karta/proprietor of M/s Chhotey Lal Jaipal Mal". Defendant no.-4 stated that M/s Chotey Lal Jaipal Mal was a partnership concern of Mr. H.C. Gupta (husband of plaintiff no.-1) and defendant no.1 only. According to plaintiffs, all the claims made by defendant no.-1 etc. are false. No document evidencing any partnership or authorization of retention of the alleged sale price or any other arrangement was produced. Plaintiffs never entered into any partnership whether oral or otherwise with the defendants or anyone of them. Plaintiffs never authorized defendants to sell the entire stock in trade of M/s Chhotey Lal Jaipal Mal to anyone. Plaintiff no.-1 never surrendered her tenancy rights in back portion of said shop to defendant no.-6. The back portion has no access except from the front portion facing the main road. The back portion is incapable of being let out separately. Plaintiff no.-1 is and has throughout been in actual physical possession of premises in her own right.
24. According to plaintiffs, on 14.06.1984, SHO PS Hauz Qazi initiated proceedings under Section 107/150 Cr.P.C against plaintiffs on one hand and defendant no.-1 to 3 on the other hand. On 16.06.1984, SHO PS Hauz Qazi lodged a report with SDM Kotwali for initiation of proceedings under Section 145 Cr.P.C. with respect to said shop. The Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 16/90 SDM visited the spot personally on 30.07.1984. On that day, defendant no.-1 stated on oath that he has no claim in the said shop.
25. On 19.07.1984, SDM noticed that SHO PS Hauz Qazi had wrongly seized the keys and it virtually amounted to attachment of the shop. Vide order dated 02.08.1984, SDM directed SHO PS Hauz Qazi to produce the keys of the shop before him.
26. According to plaintiffs on 14.08.1984, plaintiff no.-1 filed an application in the court of Concerned Ld.MM under Section 451 Cr.P.C. praying therein that keys of the shop be delivered to plaintiff no.-1. On 29.06.1984, plaintiff no.-1 even filed a report against defendant no.-1 to 4 and others with SHO PS Hauz Qazi for offences punishable under Section 408, 419, 477A and 120B IPC but police did not register a case stating that it is a civil dispute.
27. According to plaintiffs, plaintiff no.-1 also came to know that defendant no.-1 either himself or alongwith others opened a fresh bank account with Allahabad Bank, Anand Lok, New Delhi under the style of M/s Chhotey Lal Jaipal Mal falsely representing himself as sole proprietor/partner/karta. In this account, defendant no.-1 deposited three cheques details whereof has been mentioned in para 33 of plaint.
28. According to plaintiffs, on 21.08.1984, plaintiff issued a notice to defendant no.-6 asking her to admit that receipt no.77 dated 20.02.1984 for Rs.1450/- issued by her representing rent for the period w.e.f.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 17/9001.11.1981 to 31.03.1984 @ Rs.50/- per month was falsely issued in the name of defendant no.-1. However, no reply has been received.
29. According to plaintiffs, defendants by their claims and conduct have thrown a cloud on the right of the plaintiffs as to ownership of M/s Chhotey Lal Jaipal Mal and M/s Chhotey Lal Sharad Kumar and also right of plaintiff no.-1 regarding tenancy and possession of said shop. The plaintiffs called upon defendants to admit their title to both business i.e. M/s Chhotey Lal Jaipal Mal and M/s M/s Chhotey Lal Sharad Kumar and also admit that plaintiff no.-1 is alone the tenant of said shop and they have failed to admit the same and are making false claims.
30. According to plaintiffs, defendants have illegally got the shop closed in conspiracy with the police officers. Hence, the present suit has been filed for following reliefs:-
(A). A decree for declaration in favour of plaintiffs to the effect that plaintiffs are the owners of businesses known as M/s Chhotey Lal Jaipal Mal and also M/s Chhotey Lal Sharad Kumar in shop no. 3670 Chawri Bazar Delhi of which plaintiff no.-1 is the sole tenant of the front portion under defendant no.-5 and also of the back portion under defendant no.-6 and has a right to take/keep possession thereof. (B). A decree for permanent injunction against defendants thereby restraining the defendants from interfering with the possession of the plaintiffs in said shop and also from dealing with the stocks of her business.Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 18/90
31. It is reiterated that prayer/relief regarding rendition of accounts was deleted vide order dated 24.11.2018 against all defendants as requested by plaintiff no.-2 vide his statement dated 24.11.2018.
B. CASE OF DEFENDANT NO.-1:-
1. Defendant no.-1 in his written statement has denied the version of plaintiffs. According to defendant no.-1, Lala Chhotey Lal was not the tenant in said shop since the last more than 60 years. Till 1941, Lala Chhotey Lal was active only for and on behalf of the HUF of his father i.e. Lala Ram Dittamal. It was only after the partition of said HUF in 1941 that Lala Chhotey Lal started his individual business from a shop in Hauz Qazi which fell to his share. So far as the shop in Chawari Bazar is concerned it was never a part of HUF business. In fact it was taken on rent by Lala Shyam Lal, the elder brother of Lala Chhotey Lal and father of Lala Jaipal Mal. Lala Shyam Lal was maintaining himself independently for reasons of differences with his father due to former having joined the Arya Samaj Movement. Lala Shyam Lal used the shop for his individual business till 1935 (1935-36). In 1936, consequent to the birth of his grandson, Satyasheel Gupta, he withdrew himself from active business leaving its management to his son Jai Pal Mal under the guidance of his younger brother Lala Chhotey Lal.
2. After partition of the HUF of Lala Ram Dittamal, Lala Chhotey Lal and Lala Jai Pal Mal retained the name and style of Chhotey Lal Jai Pal Mal between 1941 and 1943 which carried business from the shop in Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 19/90 dispute. Thus, it was Chhotey Lal son of Ram Dittamal and Jai Pal Mal son of Arya Shyam Lal proprietors of firm who became tenants of shop bearing No.2323, Chawri Bazar, Delhi. Sh. Mahavir Prashad was the landlord of said shop.
3. In 1943 front portion of the said shop was sold by Sh. Mahavir Prashad to M/s Mani Lal & Brothers. Rear portion of the shop fell in share of Smt. Kailashwati wife of Mahavir Prashad and she became the owner of the same. Defendant No.1 admitted that tenancy was split in 1943 between the two landlords i.e. defendant No. 6 and defendant No.5.
The firm Chhotey Lal Jai Pal Mal and its proprietors i.e. Chhotey Lal and Jai Pal Mal were tenants of both said portions. Rent receipts were issued for both portions in the name of firm of Chhotey Lal and Jai Pal Mal. A rent note was executed on 04.07.1943 in favour of Sh. Mani Lal regarding front portion being on rent with the said tenants w.e.f. 01.07.1943. The municipal No. of said shop at that time was 2323 only. The number of entire shop was never 3670. In fact municipal number was changed to 3670 for the front portion and 3485 and 3486 for the rear portion. Smt. Kailashwati had an easement of necessity or quasi easement for the passage from the front portion of the shop but since the tenancy of both the portions were with the same tenants therefore, this question did not arise at that time. The business in the said shop was carried on by both Lala Chhotey Lal and Sh. Jai Pal Mal under the name and style of M/s Chhotey Lal Jaipal Mal.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 20/904. According to defendant No. 1 business of the firm came to a standstill in 1951 after raids by the special police establishment for import trade control and other matters. Thereafter, in April-May 1955 Chhotey Lal and Jai Pal Mal sold the entire stock of the partnership business lying in said shop to Sh. Chetan Gupta for Rs.50,000/-. Sh. Chetan Gupta was the son of sister of Sh. Jai Pal Mal. The amount received from Sh. Chetan Gupta was utilized for paying the creditors of the partnership business of M/s Chhotey Lal Jai Pal Mal. The stocks purchased by Chetan Gupta were not removed from the shop but were sold by Sh. Chetan Gupta from the shop itself as per understanding between Lala Chhotey Lal, Lala Jaipal Mal and Sh. Chetan Gupta.
5. Defendant No.1 denied that Lala Chhotey Lal made any sales from the shop in dispute after sale of the entire stock of partnership firm to Chetan Gupta in April-May 1955. There was no stock left in the premises to be sold by anyone. The entire stock had already been sold to Sh. Chetan Gupta and the same was hypothecated by him to his banker i.e. Punjab National Bank. Punjab National Bank removed the entire stocks from the shop. No protests or claims were raised at that time by the plaintiffs against Punjab National Bank. Lala Chhotey Lal was seriously ill for several months prior to his death in July 1955.
6. Defendant No.1 denied that after the death of Chhotey Lal, Smt. Bhagwan Devi began to manage the business of shop in dispute. The business of partnership firm had come to a standstill in 1951. Upon death of Lala Chhotey Lal, his widow inherited only his share in the Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 21/90 tenancy rights of the shop in question. Defendant No. 1 admitted that Sh. Chetan Gupta failed to clear the loan taken by him from Punjab National Bank and on account of said default Punjab National Bank took possession of the goods and sealed the shop.
7. In his written statement, defendant No.1 admitted that defendant No.5 filed a petition for eviction against the firm i.e. M/s Chhotey Lal Jaipal Mal from front portion of the shop bearing municipal No. 3670. Defendant No.1 also admitted that said petition was dismissed and even appeal against it was also dismissed. In second appeal filed in Hon'ble High Court of Delhi, vide order dated 24.12.1970 keys were directed to be returned to tenants. The keys were taken from the Court on 11.02.1971. Defendant No.1 has further claimed that keys were not handed over to plaintiff alone but the same were to be delivered to M/s Chhotey Lal Jaipal Mal and Smt. Satyawati @ Usha Gupta (plaintiff No.1) who represented the tenant i.e. M/s Chhotey Lal Jai Pal Mal. Rent note dated 04.07.1943 was relied upon in all the litigation between parties. Lala Jai Pal Mal was living in Calcutta from 1951 onwards and expired there on 07.05.1963 leaving defendant No.1 as his eldest son. Defendant No1 became Karta of joint Hindu Family known as Arya Shyam Lal Jai Pal Mal HUF (hereinafter referred to as M/s ASJ HUF). Defendant No.1 lived in Calcutta from 1954 to 1970. The shop was opened in February 1971 by plaintiff No.1 and defendant No.1 (as Karta of M/s ASJ HUF) as tenants in possession of shop bearing municipal No. 3670, 3485 and 3486.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 22/908. According to defendant No.-1, dealership of Cement Corporation of India was obtained under the name of Chhotey Lal Sharad Kumar because defendant No.1 was not interested in doing cement business and due to this reason cement business was not done under the name of M/s Chhotey Lal Jai Pal Mal. With regard to rent receipts issued by Smt. Kailashwati in favour of Chhotey Lal Sharad Kumar defendant No1 has stated that it was arranged by him purely to accommodate and assist plaintiff No.-1 in her endeavour to obtain dealership of cement. Defendant No1 was having cordial relations with Smt. Kailashwati i.e. landlord of rear portion and requested her to issue rent receipts in the name of Chhotey Lal Sharad Kumar. Hence, at the request of defendant No.-1, Smt. Kailashwati issued rent receipt in the name of Chhotey Lal Sharad Kumar but M/s Chhotey Lal Jai Pal Mal continued as tenant of the back portion under her and also paid the rent thereof to her. M/s Chhotey Lal Jai Pal Mal never surrendered the possession of rear portion to the landlady.
9. According to defendant No.-1, soon after the dealership of cement was obtained the stocks were shifted from said shop. In July 1971, the cement stocks were finally shifted to a godown taken on rent by plaintiff No.1 in village Garhi, East of Kailash, New Delhi. Defendant No1 admitted that cement business was discontinued in the end of April 1973 and M/s Chhotey Lal Sharad Kumar did not do any business after April 1973.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 23/9010. Defendant No.-1 has further claimed that plaintiff No.-1 and he could not encash the tenancy rights due to unwillingness of defendant No.5 i.e. landlord of front portion to transfer the same in the name of any third party nominated by them.
11. According to defendant No.-1, in May 1971 possession of entire shop in question was handed over to defendant No.3 to carry on his business of wirenetting from there. It was agreed that defendant No.3 would run his business under the name & style of M/s Chhotey Lal Jaipal Mal till landlord of front portion agrees to transfer tenancy in the name of defendant No.3. Defendant No.3 could not carry his business in any other name because in that contingency defendant No.5 i.e. landlord would have evicted the parties from premises in dispute. It was also agreed that plaintiff No.-1 would be shown to be sole proprietor of the business. It was also decided to show the firm as a sole proprietorship firm instead of a partnership because there were heavy dues of income tax in name of the firm M/s Chhotey Lal Jai Pal Mal. The name of plaintiff No.1 as sole proprietor was considered more desirable because she had no other source of income and she could file her returns of income outside Delhi. It was further agreed that defendant No.3 would get tenancy of the front portion and the back portion transferred to his own name or his nominee's name as and when he could manage to get consent of respective landlord (defendant No.5 and 6). Defendant No.1 has further claimed that to avoid any differences it was agreed that the goodwill would be assessed periodically and the mutually agreed market value would be the consideration amount to be paid in the event of Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 24/90 transfer of tenancy. Lastly this value was mutually assessed at Rs.12 Lacs out of which the share of plaintiff No.-1 was Rs.6,80,000/- and that of defendant No.-1 was Rs.5,20,000/-. The difference of Rs.1.60 Lac representing the mutually agreed difference in the values of the front and the back portion. Till the tenancy is transferred, defendant No.3 agreed to pay commission @ 7% of the amount of sales effected by defendant No.3 from property in question, in course of his business. Since plaintiff No.1 was lending her name to the business she was to be paid 75% of the 7% commission and defendant No.1 was to be paid 25% of the 7% commission.
12. According to defendant no.-1, defendant No.3 was not in the employment of Chhotey Lal Jai Pal Mal. The business of wirenetting was started by defendant No.3 but he was carrying on the said business under the name of Chhotey Lal Jai Pal Mal as per above agreement. Entire capital in the business was invested by defendant No.3, the business was controlled and managed by Defendant No.3, its profit and losses were to be borne by defendant No.3. Plaintiff No.1 as well as defendant No.1 were to be paid aforesaid commission only.
13. Defendant No.-1 admitted that defendant NO.5 filed another petition for ejectment from premises No. 3670 and the said petition was also dismissed. Defendant No.1 in his written statement has repeatedly stated that in the year 1971 business in front portion of shop bearing no. 3670 and back portion of shop bearing municipal numbers 3485 and 3486 was carried on by defendant No. 3 only. The business carried on Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 25/90 by defendant No.3 was quite profitable and defendant No.3 floated a concern i.e. Gayatri Enterprises for retaining more profits by saving income tax. For some time Sh. Vikramsheel Gupta son of defendant no.- 1 was admitted to the benefit of partnership firm i.e. Gayatri Enterprises as constituted by defendant No.3 with different persons from time to time namely Vijay Tandon, C.K. Tayal, Kiran Rani and Santosh Devi.
14. According to defendant No.1, defendant No.3 was not an employee of plaintiff No.-1. The bank accounts were opened in the name of Chhotey Lal Jaipal Mal and plaintiff No.-1 was shown as proprietor of the same but the said accounts were exclusively operated by Defendant no.-3 and one or other nominee of defendant no.-1. Since bank accounts were in the name of Chhotey Lal Jaipal Mal and plaintiff No.1 was shown as sole proprietor thereof, she authorized defendant NO.3 to operate said accounts. Defendant No.1 admitted that plaintiff No.1 had also authorized Vijay Tandon, S.N. Behra, C.K. Tayal and Bhola Nath to operate account jointly with Anil Bansal. The said Vijay Tandon, C.K. Tayal, S.N. Behra and Bhola Nath were nominees of defendant No.1. They were authorized as joint signatories to keep a check on defendant No.3 so that he may not create unnecessary liabilities. Defendant No.1 stood surety for various loans secured by defendant No.3 for his business.
15. According to defendant no.-1, authorization in favour of defendant No.3 and defendant No.4 were cancelled on 18.05.1984. However the Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 26/90 same was not done as a result of discovery of any fraud. In fact it was done as per prior decision. Since plaintiff No.1 was Benami owner of the business therefore income tax returns were in her name but actually defendant No.3 was carrying on the business under the said name. The books of accounts were maintained by the accountants under supervision of defendant No.3. Defendant No.-7 was the chartered accountant and he used to attend the income tax proceedings along with defendant No.-3. Defendant No.-1 denied that there was any conspiracy between defendant no.-1, defendant No.-3, defendant No.4 and defendant No.-7 to take illegal possession of the shop.
16. According to defendant No.1, plaintiff No.1 required money for treatment of her husband in USA. She approached defendant No.1 and it was agreed between them that in case defendant No.1 gives her a sum of Rs. 1 Lac, he would be entitled to receive 25% out of the 75% share of commission of plaintiff no.-1 payable to her by defendant No.3. Defendant No.1 arranged for transfer of funds to plaintiff No.1 to the tune of Rs.1 Lac in the bank account of Chhotey Lal Jai Pal Mal and plaintiff no.-1 withdrew the said amount by purchase of foreign exchange draft in favour of Texas Heart Institute, Houston.
17. Defendant No.1 admitted that in September 1982, plaintiff no.-2 came to Delhi and started working as apprentice under defendant no.-3. Plaintiff No.1 had requested defendant No.3 to give necessary training to her son i.e. plaintiff no.-2. Plaintiff no.-2 was assigned different tasks from time to time i.e. writing books of accounts, correspondence work Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 27/90 etc. Plaintiff no.-2 continued doing this work till closure of shop on 06.06.1984.
18. According to defendant No.-1, plaintiff No.1 never took plaintiff No.2 as a partner. The business was that of defendant No.3 and therefore question of entering into partnership in respect of it with plaintiff no.-1 could not arise. Partnership Deed dated 24.01.1984 is a sham document, it was never acted upon and was never given any affect. No such information was given to the bank where M/s Chhotey Lal Jai Pal Mal had an account nor it was conveyed to Income Tax and Sales Tax departments or to the Shop and Establishment Authorities.
19. According to defendant No.1, defendant No.3 and defendant No. 4 never misappropriated funds of Chhotey Lal Jaipal Mal. All the funds invested in said business were provided and arranged by defendant No.3. Plaintiffs had no investments in said business. The business carried on in said shop belonged entirely to defendant No.3 and the entries reflect the transactions and dealings of said business. All the entries and transactions are in open without any element of secrecy. Nothing has been concealed from plaintiffs and they had full access to all records of business.
20. According to defendant no.-1, copy of assessment order was already with plaintiff no.-1 on 21.03.1984 and copy thereof was also filed in the bank on that day. Defendant no.-1 admitted that while completing the assessment for the assessment year 1983-84, the Income Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 28/90 Tax officer had held that the business appeared to be carried on in partnership of plaintiff no.-1 and M/s Arya Shyam Lal Jaipal Mal. In fact the business belonged to defendant no.-3 and plaintiff no.-1 as well as defendant no.-1 had been sharing the commission paid by defendant no.3 for being allowed to carry on wirenetting business in the said shop under the name of M/s Chhotey Lal Jaipal Mal. Defendant no.-1 denied that Sh. Vinod Joshi was won over by defendant no.-1.
21. According to defendant no.-1, there was no manipulation of the books of accounts at all for the assessment year 1983-84 or for the earlier periods. The books of accounts had always been maintained to reflect the transactions of the business being conducted by defendant no.-3.
22. According to defendant no.-1, in the month of March 1984, defendant no.-3 informed plaintiff no.-1 as well as defendant no.-1 that the sales of his business could be increased substantially in case more funds are available for investment and an investor was needed for said purpose. It was then suggested that defendant no.-8 could fulfill the above purpose as it had big overdraft facilities from its bankers. Defendant no.-8 was approached and ultimately with the consent of all the parties an arrangement as mentioned in para 20 (page 21 & 22) of written statement was agreed.
23. According to defendant no.-1, the liability in OCC Account was cleared on 01.05.1984 as per arrangements with defendant no.-3 & 8. The husband of plaintiff no.-1 as well as plaintiff no.-1 and 2 were Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 29/90 aware of said facts from very beginning. Plaintiff no.-2 visited the bank in first week of May 1984 and obtained necessary information. Defendant no.-1 denied that entire amount lying to the credit of OCC account was transferred to defendant no.-8. The OCC account was having a debit balance on 30.04.1984 which was secured by hypothecation of stocks lying in the shop on that date. As the entire stocks were sold and title therein passed to defendant no.-8, it was necessary to pay off the loan of the bank. This was done by depositing the cheque of Rs.1.50 lacs received from defendant no.-8. It was also agreed that the said current account would be closed on 09.05.1984 and from that day, the firm M/s Chhotey Lal Jaipal Mal was to become a partnership with plaintiff no.-1 and 2 as one party and defendant no.-1 and M/s Satyasheel Gupta HUF as the other party and a new bank account in the name of partnership firm was to be opened. Accordingly, the bank was informed on 09.05.1984 to close the account. Non judicial stamp papers for execution of partnership deed were also purchased and kept in shop in question.
24. According to defendant no.-1, defendant no.-8 was to obtain finance from its bankers against the security of the goods agreed to be purchased by them from defendant no.-3 working under the name of M/s Chhotey Lal Jaipal Mal. Defendant no.-8 therefore, required that there should be no liability on the firm and in respect of the stock being purchased by them. Accordingly, defendant no.-8 paid a sum of Rs.2 lacs on 03.04.1984 by an account payee cheque in favour of M/s Chhotey Lal Jaipal Mal. The said funds were utilized to pay off various creditors of Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 30/90 the business. Thereafter, defendant no.-8 paid a further amount of Rs.1.50 lacs on 01.05.1984 and this amount was utilized to clear the overdraft liability towards Canara Bank extended in the name of M/s Chhotey Lal Jaipal Mal. The balance consideration of Rs.1 lac was retained by defendant no.-8 for payment to various suppliers. According to defendant no.-1, transfer of funds to the account of defendant no.-8 was not a fraud on plaintiffs. Plaintiffs never made any investment in said business. The transfer of Rs.14,000/- to defendant no.-8 was a part of sale proceeds from 01.05.1984 onwards. Defendant no.-1 in his written statement has stated that the events and transactions narrated in the plaint do not form a modus operandi for playing fraud. In fact the same were bona fide transactions taking place in course of implementation of arrangements agreed between plaintiff no.-1, defendant no.-1, defendant no.-3 and defendant no.-8. In para 21 of his written statement, defendant no.-1 has given various instances/ transactions in support of his contention(page 27 to 34).
25. According to defendant no.-1, as soon as the sale was made and bill issued delivery was taken by defendant no.-2 who in confirmation thereof affixed his signatures to the bill no.638 dated 30 th April 1984. Defendant no.-1 has further claimed that from 01.05.1984 onwards all purchases of goods needed for his business by defendant no.-3 were made in the name and account of defendant no.-8. All these goods were delivered by suppliers and received by defendant no..-8 at the shop. The system was followed from 01.05.1984 right through 06.06.1984 and all this while plaintiff no.-2 was regularly attending the shop. Defendant Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 31/90 no.1 admitted that no cash memo of bill was issued from the shop by defendant no.-8 in respect of sale conducted from there by defendant no.3 as detailed above and all the sales w.e.f. 01.05.84 to 05.06.84 were made in the name of M/s Chhotey Lal Jaipal Mal.
26. In his written statement, defendant no.-1 has denied that there was no sale by M/s Chhotey Lal Jaipal Mal to defendant no.-8. Defendant no.-8 has paid for the goods billed to them vide bill dated 30.04.1984. The ownership in the goods vested in defendant no.-8 on payment of the consideration and the sale was valid and binding. Defendant no.-1 has further claimed that plaintiff no.-1 was not sole proprietor of said business. Defendant no.-1 even denied the claim of plaintiff no.-1 that she took plaintiff no.-2 as a partner. The partnership deed dated 24.01.1984 was never brought to the notice of defendant no.-1 or the bank and the same is a sham document. The alleged partnership never took the assets and liabilities of the business. The stocks belong entirely to defendant no.3. Plaintiff no.-1 was merely name lender for protecting the tenancy rights of plaintiff no.-1 and defendant no.-1 in the premises in dispute.
27. Defendant no.-1 in his written statement has further stated that the sale was at market price and the documents were not fabricated. Out of total consideration of Rs.4.5 lacs a sum of Rs.3.50 lacs was paid by account payee cheques to Chhotey Lal Jaipal Mal and Rs.71,500/- approximately were paid upto 06.06.1984 to various suppliers and creditors who had supplied goods upto 30.04.1984. Defendant no.-8 is Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 32/90 liable to pay the balance amount. Plaintiffs were in full knowledge of all arrangements between defendant no.-3 and defendant no.-8 and the same were with their consent and they are thus estopped from challenging the sale or any acts of defendants no.-3 & 4.
28. According to defendant no.-1, defendant no.-3 was not supervising and managing the business for plaintiff no.-1. Therefore, there was no question of plaintiff no.-1 deciding to put an end to such arrangements. Defendant no.-3 was doing his own business from said shop w.e.f. 1971 and continued the same till 06.06.1984. Defendant no.-1 has further claimed that all the keys of shop in question used to be with him and defendant no.-3. In his written statement, defendant no.-1 has denied all the claims made by plaintiffs regarding fresh locks etc. in their plaint.
29. According to defendant no.-1, the entire stocks in the shop are the property of and belong to defendant no.-8. The stocks lying in the shop at present comprise not only the stocks purchased by defendant no.-8 vide bill no.-638 dated 30.04.1984 but also include further purchase made by defendant no.-8 w..e.f 01.05.1984 to 05.06.1984.
30. Defendant no.-1 in his written statement admitted that proceedings under Section 145 Cr.P.C were initiated by Police with SDM Kotwali. Defendant no.-1 has further claimed that he had signed on his statement in sheer disgust. No oath was administered by the SDM Concerned to him.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 33/9031. According to defendant no.-1, defendant no.-3 never used to supervise and manage the business on behalf of plaintiff no.-1. Defendant no.-3 was not an agent of plaintiff no.-1. Defendant no.-3 & 4 were authorized to operate the bank account because business belonged to defendant no.-3 and plaintiff no.-1 was only a name lender. Plaintiff no.-1 neither operated nor made any transaction from said account since 1971. Defendant no.-3 and 4 are not liable to render any account to plaintiff no.-1.
32. According to defendant no.-1, the actions of defendants are totally in accordance with their rights, the reality and the factual arrangement existing between plaintiff no.-1 and defendants. Defendant no.-1 enjoys the rights to sublet the back portion of the shop to any party of his choice in accordance with permission granted to him by the landlady i.e. defendant no.-6. Defendant no.-1 is also a tenant of the whole shop alongwith plaintiff no.-1.
33. According to defendant no.-1, no cause of action has arisen in favour of plaintiffs and against defendants and therefore, the present suit filed by plaintiffs is liable to be dismissed with costs.
C. CASE OF DEFENDANT NO.2 & 8:-
1. Defendant no.-2 and 8 in their common/joint written statement have taken some preliminary objections i.e. the suit framed by plaintiffs is not maintainable as per Section 34 of Specific Relief Act as they have Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 34/90 not claimed consequential relief with the relief of declaration. Plaintiffs are out of possession of premises in dispute and therefore they ought to have claimed consequential relief of possession. The relief of injunction is also not maintainable as plaintiffs are out of possession of shop in dispute. The goods lying in said shop belong to defendant no.-8.
2. According to defendant no.-2 & 8, in March/April 1984, defendant no.-3, plaintiff no.-1 and defendant no.-1 carried on negotiations with them in connection with the business of wire netting being carried from the said shop. It was made clear to defendant no.-8 that since 1971, said business is being carried by defendant no.-3 only as owner thereof. After detailed negotiations the parties arrived at a mutual agreement as mentioned in para 3(a) of written statement filed by defendant no.-2 & 8.
Defendant no.-8 agreed to the same in order to avoid any threat of eviction on ground of sub-letting, parting with possession etc by the landlord of the front portion of the premises in dispute.
3. According to defendant no.-2 & 8, the said arrangement was acted upon by the parties and the same is clear from following facts:-
(A) Defendants no.-2 & 8 in token of acceptance of above arrangement issued a cheque dated 03.04.1984 for Rs.2 lacs drawn in favour of M/s Chhotey Lal Jaipal Mal and handed over the same to defendant no.-3 in presence of plaintiff no.-1 and defendant no.-1. The said cheque was towards part payments/ advance of sale consideration of the entire stock as on 30.04.1984.Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 35/90
(B) The said stocks as on 30.04.1984 were purchased by defendant no.-8 vide Bill No.638 dated 30.04.1984 for Rs.4,50,000/- issued by M/s Chhotey Lal Jaipal Mal and symbolic delivery of entire stock was accepted and immediately ownership in goods vested in defendant no.-8.
(C) The said arrangement was finalized on behalf of defendant no.-8 i.e. company by SH. Mahesh Narain (defendant no.-2) who was authorized by Board of Directors to negotiate and finalize the deal. The said arrangement was also approved by Board of Directors in their meeting held on 02.04.1984. The said arrangement was duly signed by Sh. Anil Bansal (defendant no.3) in token of acceptance of the same on behalf of M/s Chhotey Lal Jaipal Mal.
4. According to defendant no.-2 & 8, defendant no.-8 bought the entire stocks in trade of M/s Chotey Lal Jaipal Mal in good faith and without any notice of title of any third party and as such defendant no.-8 is purchaser in good faith for consideration. Sale deed dated 30.04.1984 as well as entire transaction took place in presence of plaintiffs. Plaintiff no.-1 consented and approved all dealings and was a party to all such arrangement/ agreement and is therefore estopped by her conduct from denying authority of defendant no.-3 to sell the goods. Defendant no.-3 neither disclosed that he is acting as an agent nor he disclosed his principals.
5. According to defendants no.-2 & 8, sale in favour of defendant no.-8 is final, binding, valid and cannot be challenged by plaintiffs. Ld. Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 36/90 Counsel for plaintiffs admitted before SDM that they have no objection if the goods are delivered to defendant no.-8. According to defendant no.-2 & 8 they are concerned only with goods which are exclusively owned by them and for which consideration was paid by defendant no.8.
6. On merits, defendants no.-2 & 8 have denied the version of plaintiffs as stated by them in their plaint. According to defendant no.-2 & 8, plaintiff no.-1, defendant no.-1 and defendant no.-3 represented that tenancy right of front portion belongs to plaintiff no.-1 and of rear portion to defendant no.-1. According to them, at the time of arriving at the aforesaid arrangement, it was represented that plaintiff no.-1 and defendant no.-1 are committed to surrender their respective tenancy rights in favour of defendant no.-3 or his nominee as per their agreement in 1971. Since 1971, defendant no.-3 is in physical possession of entire shop and is doing business as owner thereof. Defendant no.-3 paid commission to plaintiff no.-1 and defendant no.-1 for using their trade name and for lending their name. Said commission is being shared equally by plaintiff no.-1 and defendant no.-1.
7. According to defendants no.-2 & 8, possession of said shop is with defendant no.-3 and goods lying therein belong exclusively to defendant no.-8 as the consideration amount of sale of entire stock lying in said shop as on 30.04.1984 was duly paid by account payee cheques in favour of M/s Chhotey Lal Jaipal Mal under which name the business was carried with the consent of plaintiff no.-1, defendant no.-1 and defendant no.-3. Defendants no.-2& 8 have further claimed that not even a single Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 37/90 item of stock was purchased in the name of M/s Chhotey Lal Jaipal Mal after the sale of stocks on 30.04.1984 to defendant no.-8. The sales continued to be conducted from premises in dispute by defendant no.-3 under the same trade name in accordance with his arrangements subsisting since 1971 with plaintiff no.-1 and defendant no.-1. The profits were to be shared equally between defendant no.-8 and defendant no.-3 after paying 7% commission to owners of trade name i.e. Chhotey Lal Jaipal Mal for using their trade name, till tenancy is transferred in favour of defendant no.-3.
8. According to defendants no.-2 & 8, during negotiations with defendant no.-8 in which plaintiff no.-1 was present alongwith defendants no.-1 and 3, it was represented by all the parties that the plaintiff no.-1 is only a name lender to the said business and the owners of trade name Chhotey Lal Jaipal Mal are plaintiff no.-1 and defendant no.-1 who are sharing equally the commission of 7% paid to them on the sale proceeds by defendant no.-3 who is actually doing said business as owner thereof.
9. According to defendant no.-2 & 8, plaintiff no.-2 was working in said shop as an employee/trainee and was being paid a stipend till the closure of the shop. All the sales and purchases were negotiated and finalized in his presence and were in his knowledge and he continued to work in the same capacity till the closure of the shop but he never claimed any independent right in the business. The partnership deed dated 24.01.1984 is a sham and bogus document and was never acted Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 38/90 upon.
10. According to defendants no.-2 & 8, there was no conspiracy or fraud as alleged by plaintiffs. The allegations are malicious and defamatory. The transfer of Rs.14,000/- from the account of M/s Chhotey Lal Jaipal Mal to the account of defendant no.-8 was on account of the sales for the period w.e.f. 01.05.1984 onwards.
11. According to defendants no.-2 &8, no fraud was committed as alleged by plaintiffs. Issuance of cheque by defendant no.-8 in favour of M/s Chhotey Lal Jaipal Mal is not disputed. However, the said cheque was towards part of the consideration for purchase of entire stock as on 30.04.1984 as per the arrangement finalized. This amount was utilized to clear the creditors who were closely related to defendant no.-3 as he took loans from them.
12. Defendants no.-2 & 8 in their written statement have admitted that another cheque of Rs.1.50 lacs towards further part payment of the stock in trade was issued on 30.04.1984, dated 01.05.1984 i.e. the date from which the arrangements commenced. This cheque as well as earlier cheque was handed over to defendant no.-3 in presence of plaintiff no.-1 and defendant no.-1. The OCC Limit was surrendered by defendant no.3 in order to give clear title in goods and to discharge the lien of Canara Bank in the goods permanently. All the acts were performed as per arrangements between plaintiff no.-1, defendant no.-1, 3 & 8 and therefore, the question of committing any fraud does not arise at all and Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 39/90 all the facts were in the knowledge of plaintiffs.
13. According to defendants no.- 2 & 8, the sale vide Bill dated 30.04.1984 was a complete and valid sale. All the stocks purchased after 1st May 1984 were purchased by defendant no.-8 only and were received and stored at the shop alongwith the stocks purchased on 30.04.1984. Sales effected from shop by defendant no.-3 w.e.f. 01.05.1984 onwards were partly from stock purchased on 30.04.1984 and partly from stocks purchased from other parties by defendant no.-8 w.e.f. 01.05.1984 to 05.06.1984 i.e. till the shop was illegally locked by plaintiff no.-2.
14. According to defendants no.-2 & 8, entire consideration of Rs.4,50,000/- has been paid as under:-
(1) Rs.3,50,000/- by two account payee cheques favouring Chhotey Lal Jaipal Mal (2) Rs.71,480.26P by 38 account payee demand drafts/cheques paid to various suppliers/ creditors who had to take money from Chhotey lal Jaipal Mal as on 30.04.1984.
(3) Rs.28,773.16P by taking over the liability of various suppliers who had to receive money from Chhotey Lal Jaipal Mal as on 30.04.1984. (4) Rs.32.58P by adjustment in account of sales from 22.05.1984 to 05.06.1984.
15. According to defendants no.-2 & 8, the ownership and title in the goods passed to defendant no.-8 vide bill dated 30.04.1984 covering the entire goods lying in the shop on 30.04.1984 when symbolic delivery Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 40/90 was taken after payment. The sale dated 30.041984 was well within the knowledge of plaintiffs who were present on all relevant occasions. The sale was made in the name of M/s Chhotey Lal Jaipal Mal and the payments were credited to the bank account of said firm. The said sale was a genuine sale. Full consideration at market rate has been paid. There was no dishonest act on part of defendants.
16. According to defendant no.-2 & 8, plaintiff no.-2 acted illegally, without any authority or right and forcibly took the keys and replaced the locks. Plaintiff no.-2 wrongfully restrained defendant no.-8 from carrying on its business. Plaintiff no.-2 surrendered the keys to police and was thereby saved from immediate consequences of his action. The goods of defendant no.-8 valued over Rs.4 lacs are lying locked up in the shop. The entire investment of defendant no.-8 has been blocked and defendant no.-8 is incurring interest liability on said amount too.
17. According to defendants no.-2 & 8, plaintiff no.-1 is not in actual physical possession of the shop and of the stocks lying therein. Defendant no.-3 is in actual physical possession of the shop since 1971. Plaintiff no.-1 and 2 have no right to enter the shop and plaintiff no.-1 is only entitled to receive her share of the commission.
18. Defendants no.-2 & 8 in their written statement admitted that back portion has no other access. However, they denied that back portion is incapable of being let out separately. Defendants no.-2 & 8 have further claimed that undertaking given on 26.07.1984 by Sh. S.S. Gandhi, Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 41/90 Advocate to deliver the goods to defendant no.-8 was given after due deliberations and consultations with plaintiffs who were present in the court of SDM on that date. The plaintiffs cannot escape their legally binding undertaking by changing their counsel.
19. According to defendants no.-2 & 8, new account was opened with the knowledge and consent of plaintiff no.-1. In fact it was opened at her suggestion as she pleaded her inability to open the new account in the name of M/s Chhotey Lal Jaipal Mal with herself and defendant no.-1 as partners thereof.
20. According to defendant no.-2 & 8, they have not done anything to cloud the rights of plaintiffs who are trying to usurp what does not belong to them. The plaintiffs were never in possession of disputed premises. Plaintiff no.-1 was never the tenant of back portion. Defendant no.-8 is real sufferer of the arbitrary, unauthorized, illegal and criminal acts committed by plaintiff no.-2. Defendant no.-2 & 8 reserve their right to claim damages from plaintiffs for their aforesaid acts.
21. According to defendants no.-2 & 8, the suit filed by plaintiffs is malafide, malicious, defamatory and based entirely on concocted claims which are false to the knowledge of plaintiffs. The present suit has been filed by plaintiffs without any cause of action and the same is liable to be dismissed with compensatory costs.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 42/90D. CASE OF DEFENDANT NO.-3 & 4:-
1. Defendants no.-3 & 4 in their common/joint written statement have also taken some preliminary objections i.e. mere suit for declaration is not maintainable in view of Section 34 of Specific Relief Act 1963 without seeking consequential relief. Plaintiffs are out of possession of said shop and they are bound to seek relief of possession besides declaration. The suit is bad for misjoinder and non-joinder of necessary parties. Plaintiffs have made serious averments against police officials but police officials have not been impleaded as a party in the present suit.
2. Defendants no.-3 & 4 in their written statement have denied that Sh. Chhotey Lal father of plaintiff no.-1 was tenant in said shop. Initially there was no municipal number of the shop in question and the same was taken jointly by Lala Jaipal Mal (father of defendant no.-1) and Sh.
Chhotey Lal (father of plaintiff no.-1). Defendants no.-3 & 4 admitted that present municipal numbers of shop in question are 3670, 3485 and 3486 and the shop in question is a single shop. It is also admitted that front portion bearing number 3670 had been sold to M/s Mani Lal and Brothers i.e. defendant no.-5. It is also admitted that defendant no.-6 i.e. Smt. Kailashwati is the owner of back portion bearing Municipal Nos. 3485 and 3486. According to defendant no.-3 & 4, Plaintiff no.-1 and defendant no.-1 had informed defendant no.-3 about aforesaid facts. According to defendant no.-3 & 4, plaintiff no.-1 and defendant no.-1 had informed defendant no.-3 that the shop no. 2323 was initially taken on rent by Lala Shyam Lal i.e. elder brother of Lala Chhotey Lal and Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 43/90 father of Lala Jaipal Mal. It is also informed that Lala Shyam Lal was an Arya Samajist and after partition of the HUF of Lala Ram Dittamal in 1941 , Lala Chhotey Lal and Lala Jaipal Mal started a firm under the name and style of Chhotey Lal Jaipal Mal some time between 1941 to 1943 which carried on its business from shop no. 2323, Chawri Bazar, Delhi.
3. Defendants no.-3 & 4 have denied that Lala Chhotey Lal only was running his business of hardware under the name and style of M/s Chhotey Lal Jaipal Mal in shop No. 2323 which was later on changed to 3670, 3485 and 3486. In fact both Lala Chhotey Lal and Lala Jaipal Mal had been carrying on their business of hardware under the name and style of M/s Chhotey Lal Jaipal Mal in the said shop.
4. According to defendants no.-3 & 4, defendant no.-3 was informed by plaintiff no.-1 as well as defendant no.-1 that in the year 1951, there was a raid on the firm i.e. M/s Chhotey Lal Jaipal Mal and on account of said raid the business had come to a stand still. Thereafter, in April-May 1955, entire stock of partnership business lying in the shop was sold to Sh. Chetan Gupta for Rs.50,000/-. It is further informed that Chetan Gupta did not remove the stock purchased by him from shop in question but sold the said goods from said shop itself. It is further informed that Chetan Gupta had hypothecated the said stock to his bankers i.e. Punjab National Bank Ltd. However, Sh. Chetan Gupta failed to clear dues of Punjab National Bank, consequently said shop as well as entire stock was sealed.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 44/905. Defendants no.-3 & 4 in their written statement have denied that Smt Bhagwan Devi i.e. widow of Lala Chhotey Lal and mother of plaintiff no.-1 started managing the business through her employees. Defendant no.-3 was informed by plaintiff no.-1 and defendant no.-1 that after the death of Chhotey Lal on 28.07.1955 his widow inherited his share in the tenancy rights and Lala Jaipal Mal was the other co-tenant in the shop in question.
6. According to defendants no.-3 & 4, goods purchased by Sh. Chetan Gupta were lying in shop bearing no. 3670, 3485 3486 and not only in shop no. 3670 as alleged. It is further admitted that Sh. Chetan Gupta failed to clear the loan and Punjab National Bank Ltd took possession of the goods and sealed the shop.
7. According to defendants no.-3 & 4, while handing over the possession of said shop to defendant no.-3 it is informed that defendant no.-5 had filed an eviction petition in respect of front portion of the shop bearing no.-3670 against M/s Chottey Lal Jaipal Mal, Smt Bhagwan Devi, Chetan Gupta and Punjab National Bank Ltd on the ground of sub- letting by tenants. It is further informed that Hon'ble High Court ordered return of keys to the tenants in 1970 and consequently tenants took the keys from Hon'ble High Court and plaintiff no.-1 as well as defendant no.1 jointly opened the shop.
8. According to defendants no.-3 & 4, defendant no.-3 had been looking for a business premises in Chawri Bazar, Delhi to start his Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 45/90 independent business. Defendant no.-3 is brother in law of defendant no.1. Defendant no.-3 came to know that defendant no.-1 and plaintiff no.-1(Aunt of defendant no.-1) were able to obtain the keys of their shop in Chawri Bazar from court. Defendant no.-3 approached plaintiff no.-1 and defendant no.-1 for getting the shop in order to start his independent business of wirenetting in Chawri Bazar, Delhi. A joint meeting was held wherein defendant no.-3 was informed by plaintiff no.-1 as well as defendant no.-1 that they do not want the landlord to repeat the eviction proceedings. They suggested to defendant no.-3 that he should get the tenancy changed in his name but defendant no.-5 i.e. Landlord was not agreeable for any change of tenancy. After due deliberations, it was decided that defendant no.-3 would pay 7% commission on the entire sales effected by him which would be shared by plaintiff no.-1 and defendant no.-1. It was also decided that in case defendant no.-3 is able to get the tenancy transferred in his name then he would pay market value of tenancy to plaintiff no.-1 as well as defendant no.-1. Defendant no.-3 agreed that till the time tenancy is transferred, he would run his personal business under the name and style of M/s Chhotey Lal Jaipal Mal. It was also decided that plaintiff no.-1 would be shown as sole proprietor of M/s Chottey Lal Jaipal Mal. It was also agreed that defendant no.-1 would be entitled to keep one of his nominees at the shop who would jointly operate the bank account together with defendant no.-3.
9. According to defendant no.-3 & 4, as far as business of dealership of Cement under the name and style of M/s Chottey Lal Sharad Kumar Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 46/90 is concerned, defendant no.-3 was told that the same would be shifted from shop in question. In May 1971, stocks of cement was shifted to Bazar Shirkiwalan Delhi. Since May 1971, defendant no..-3 started his business in said shop and also opened an account in the name of M/s Chottey Lal Jaipal Mal showing plaintiff no.1 as its sole proprietor. It is further stated that according to knowledge of defendant no.-3, at no point of time, Smt Usha Gupta had regularly operated any of the said accounts. As per arrangement, defendant no.-3 jointly with nominee of defendant no.-1 used to operate the accounts although both of them used to be described as authorized signatories.
10. Defendant no.-3 and 4 in their written statement denied that defendant no.-3 and Sh, Vijay Tandon had jointly operated account of M/s Chhotey Lal Sharad Kumar with National Grindlays Bank as her authorized signatories of plaintiff no.-1. It is admitted that an account was opened in the name of Chhotey Lal Jaipal Mal showing plaintiff no.-1 as its sole proprietor, with Canara Bank, Hauz Qazi, Delhi. It is also admitted that address given to the banks for these accounts was the address of Shop No.3670, Chawri Bazar, Delhi. In their written statement defendant no.-3 and 4 have admitted that Sh. Bhola Nath (defendant no.4) was taken in employment of M/s Gayatri Enterprises by defendant no.-3 in 1977. Defendant no.-4 is maternal uncle of defendant no.-3 and had vast experience in the business of wirenettings. Defendants no.-3 & 4 have denied that any fraud was discovered by plaintiff no.-1. However, it is admitted that authorization of defendant no.-3 & defendant no.-4 was cancelled on 18.05.1984. It is denied that Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 47/90 defendant no.-3 was employed with plaintiff no.-1. Defendants no.-3 & 4 have further claimed that defendant no.-3 was carrying on his business in the said shop as sole proprietor of the same though in the name of M/s Chottey Lal Jaipal Mal to avoid eviction by defendant no.-5. The bank account etc were opened in the name of M/s Chhotey Lal Jaipal Mal and plaintiff no.-1 was shown as proprietor of the same but the bank accounts were exclusively operated by defendant no.-3 and nominee of defendant no.-1. It is denied that the amount standing at the credit of M/s Chhotey Lal Sharad Kumar was transferred to the account of M/s Chhotey Lal Jaipal Mal without consideration. It was transferred to facilitate remittance of the same to plaintiff no.-1 outside Delhi. Plaintiff no.-1 was merely a name lender. Since plaintiff no.-1 was a benami owner and name lender of the business therefore Income Tax Returns were in her name but actually defendant no.-3 was carrying on the business under the said name as sole proprietor.
11. According to defendant no.-3 & 4, there was no conspiracy between them, defendant no.-1 and defendant no.-7 to take illegal possession of the shop as alleged. Plaintiff no.-1 required money for treatment of her husband in USA. Plaintiff no.-1 approahced defendant no.-1 for a sum of Rs.1 lac. Defendant no.-1 arranged for transfer of funds to her to the tune of Rs.1 lac in the bank account of M/s Chottey Lal Jaipal Mal. Plaintiff no.-1 withdrew the said amount by purchase of foreign exchange draft in favour of Texas Heart Institute, Houston.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 48/9012. According to defendants no.-3 & 4, plaintiff no.-2 had directly come out of college and started working at the shop of defendant no.-3. In order to create interest in him, defendant no.-3 started paying a stipend of Rs.300/- per month to plaintiff no..-2 which was later on enhanced to Rs.500/- per month to give encouragement to plaintiff no.-2. Plaintiff no.-2 had been working only as a trainee at the shop of defendant no.-3.
13. In their written statement, defendant no.-3 & 4 denied that plaintiff no.-1 entered into a partnership with plaintiff no.-2. Existence of partnership deed dated 24.01.1984 is also denied. According to defendants no.-3 & 4, even if the alleged partnership deed dated 24.01.1984 exists the same is a sham document and it was never acted upon as there was no occasion to act upon the same. The alleged registration of alleged partnership deed is also collusive and malafide and must have been got done with ulterior motives. Plaintiff no.-1 never disclosed about the alleged partnership to defendants no.-3 & 4 nor gave any information about it to the banks where M/s Chhotey Lal Jaipal Mal had an account. Even income tax, sales tax as well as shop and establishment authorities were not informed about the same.
14. Defendants no.-3 & 4 in their written statement have denied that they as well as defendant no.-1 had misappropriated the funds of M/s Chhotey Lal Jaipal Mal. All the funds that were invested in business of M/s Chhotey Lal Jaipal Mal were provided and arranged for or by defendant no.-3 only.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 49/9015. Defendants no.-3 & 4 have also denied that any new or material information came to knowledge of Smt. Usha Gupta on 03.04.1984 as alleged. Copy of assessment order was already with plaintiff no.-1 on 21.03.1984. Copy of said order was also filed in bank on 21.03.1984. It is admitted that while completing the assessment for the assessment year 1983-84, the income tax officer had held that the business appeared to be carried on in partnership of Smt Usha Gupta(plaintiff no.-1) and M/s Arya Shyam Lal Jaipal Mal. Defendant no.-3 asked plaintiff no.-1 to file an appeal against the said assessment order which was filed by her and the same was ultimately accepted by Appellate Authority.
16. Defendants no.-3 & 4 have denied that there was any manipulation in the books of accounts for the assessment year 1983-84 or for the earlier periods as alleged. It is further stated that account books reflected the transactions of the business conducted by defendant no.-3 as sole proprietor. Value of tenancy premises was periodically assessed and the same was also recorded in the books of account and the same used to be divided in the account books between plaintiff no.-1 and defendant no.-1 as per their entitlement. Existence of any dispute between plaintiffs, defendant no.-1 and defendant no.-3 till 06.06.1984 is denied. Even the factum of negotiation between parties in first week of April 1984 has been denied.
17. Defendants no.-3 & 4 have denied that entire amount lying to the credit of M/s Chhotey Lal Jaipal Mal was transferred to defendant no.-8 and there was no balance left in the account as alleged. It is also denied Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 50/90 that defendants no.-1 to 4 and 7 had played fraud on the plaintiffs. According to defendant no.-3 & 4, in order to increase the sales and also for purposes of investment, defendant no.-8 was approached. Defendant no.-8 expressed its willingness to enter into arrangement as mentioned in para 30 A, B, C, D, E, F, G, H of written statement filed by defendant no.-3 & 4.
18. According to defendant no.-3 & 4, no fraud was played upon plaintiffs as alleged. The events and transactions mentioned in plaint were bonafide transactions taking place in course of business and in implementation of arrangements agreed between plaintiff no.-1, defendant no.-1, defendant no.-3 and defendant no.-8. According to defendants no.-3 & 4, the same would be clear from the contents/facts mentioned in para 31 A, B,C and D of their written statement.
19. In their written statement, defendants no.-3 & 4 have denied that delivery of even a single item was not taken by defendant no.-8. According to defendants no.-3 & 4, as soon as the sale was made and bill was issued, delivery was taken by defendant no.-2 for and on behalf of defendant no.-8 who in confirmation thereof affixed his signatures on the bill no.-638 dated 30.04.1984. It is further stated that from 01.05.1984 onwards all purchases of goods needed for running the business by defendant no.-3 were made by and in the name and in the account of defendant no.-8 only. All these goods were delivered by the suppliers and received by defendant no.-8 at the shop through its representative i.e. Sh. Vinod Joshi who was appointed by defendant no.-8. This system was Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 51/90 followed from 01.05.1984 right upto 06.06.1984 and during this period plaintiff no.-2 had bee regularly attending the shop and was in full knowledge of the aforesaid facts. After the entire stock in trade was sold a board was also displayed in the shop by defendant no.-8 declaring its ownership in all the goods stored in shop in dispute. It is admitted that no cash memo or bill was issued from the shop by defendant no.-8 in respect of the sales conducted from there by defendant no.-3 for obvious reason i.e. avoiding of eviction proceedings by defendant no.-5. It is also admitted that all the sales from 01.05.1984 till 05.06.1984 were made in the name of M/s Chhotey Lal Jaipal Mal in view of arrangement between plaintiff no.-1, defendant no.-1, defendant no.-3 and defendant no.-8. It is further stated that till 30.04.1984, the daily sale proceeds were used to be deposited without fail in the bank account on the next day. However, the sale proceeds realized from 01.05.1984 till 05.06.1984 were dealt with as mentioned in clause A, B,C of para 32 of written statement filed by defendants no.-3 & 4.
20. In their written statement, defendants no.-3 and 4 have stated that authority in their favour was cancelled as it had become redundant because all purchases were to be made and paid for by defendant no.-8 and all the creditors, the bank overdraft and the suppliers of the goods upto 30.04.1984 had been fully paid off. The daily sale proceeds were to be deposited 50:50 in the two accounts maintained in the name of M/s Chottey Lal Jaipal Mal (to be operated by plaintiff no.-1 as sole proprietor) and the other by defendant no.-1 as sole proprietor. From these accounts the sale proceeds after deducting 7% commission was to Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 52/90 be transferred to the account of defendant no.-8 from time to time as was settled between parties. Thus, only the commission amounts were to remain in the two accounts. Hence, there was no necessity for defendant no.-3 to control and monitor the operation of two accounts.
21. According to defendants no.-3 & 4, the old proprietorship account with Canara Bank continued. No new account was opened by plaintiff no.-1 and plaintiff no.-2. The authority to operate the old account was given to husband of plaintiff no.-1 and not to plaintiff no.-2 who claims to have become a partner with plaintiff no.-1. Defendant no.-3 carried on his business at the shop in question regularly upto 05.06.1984. Defendant no.-3 had been making purchases and sales as usual, collected the sale proceeds and deposited the same in the two accounts as per mutual arrangement. Plaintiff no.-1 operated the account regularly from 18.05.1984.
22. According to defendants no.-3 & 4, the plaintiffs did not care to find out why sale proceeds from 09.05.1984 to 21.05.1984 were not deposited in the old bank account and why only 50% sale proceeds were deposited in the old account from 22.05.1984 onwards. According to defendant no.-3 & 4 this clearly establishes that there is no truth or basis for the so called fraud and in fact no fraud was played on the plaintiffs as alleged.
23. In their written statement, defendants no.-3 & 4 have denied all the allegations leveled against them by plaintiffs and prayed for dismissal of Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 53/90 suit filed by plaintiffs.
E. CASE OF DEFENDANT NO.-5:-
1. Defendant no.-5 in its written statement has taken some preliminary objections i.e. the suit has been filed by plaintiffs without any cause of action and therefore the same is liable to be dismissed.
Plaintiffs have filed the present suit in collusion with the defendants in order to save themselves from the expected eviction. Plaintiffs have illegally and without legal justification have sublet, assigned or otherwise parted with possession of the whole or part of the tenanted premises with obtaining the consent in writing of defendant no.-5.
2. On merits, defendant no.-5 in its written statement has admitted that M/s Chhotey Lal Jaipal Mal were the tenants in the premises in dispute. M/s Chhotey Lal Jaipal Mal were the tenants even before defendant no.-5 had actually purchased shop in question from its earlier owners. Defendant no.-5 denied that the entire shop had only one opening towards Chawri Bazar Delhi and stated that it had an opening on the rear side of the shop as well.
3. Defendant no.-5 in its written statement admitted that since the delivery of keys, plaintiff no.-1 is in the possession of shop in question. According to defendant no.-5, it appears that plaintiff no.-1 had sublet, assigned or parted with possession of the tenanted premises to some others under the pretext of commission agency business etc. Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 54/90
4. Defendant no.-5 in its written statement has further stated that all allegations have been leveled only to defeat the provisions of Delhi Rent Control Act 1958 and to defraud defendant no.-5 as well as to save themselves from consequences of violating Section 14(1) (b) of Delhi Rent Control Act 1958. The tenants are trying to take advantage of their own wrongs and the same is not permissible in law.
5. According to defendant no.-5, M/s Chhotey Lal Jaipal Mal had no legal authority to take plaintiff no.-2 as a partner without its consent in writing. It is further stated that on their own showing, M/s Chhotey Lal Jaipal Mal a proprietorship firm of plaintiff no.-1 had sublet and parted with possession of tenanted premises to M/s Arya Shyam Lal Jaipal Mal a HUF concern of defendant no.-1. It appears plaintiff no.-1 having realized that she is liable to be evicted under the provisions of Delhi Rent Control Act 1958 she asked defendant no.-1 to help her and has sought a device to get out of this illegality committed by her. The allegations leveled in plaint have been concocted to save tenancy rights.
6. According to defendant no.-5, the present suit has been filed with a view to create some type of evidence which can be used as defence in the eviction petition which defendant no.-5 is likely to file. Plaintiff no.-1 is out of possession of shop in question because of her own acts of sub- letting and assignment. By filing the suit for declaration, plaintiff no.-1 intends to forestall the decision of learned Rent Controller/Additional Rent Controller who might be seized of the case to be filed by defendant no.-5 against tenants.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 55/907. According to defendant no.-5, the claim of defendant no.-1 of being a tenant of defendant no.-6, his having sublet the same to defendant no.-8 w.e.f. 01.05.1984 with the consent of landlord etc are the allegations which have been made to establish right of entry from the front for entering rear portion which has different municipal numbers. Entry to rear portion seems to have been closed either by the owner of the same or by the tenant or by the consent of both.
8. According to defendant no.-5, the suit filed by plaintiffs is collusive and has been filed with malafide intention. The same is liable to be dismissed with exemplary and special cost.
F. CASE OF DEFENDANT NO.-6:-
It is reiterated that defendant No.6 i.e. Smt. Kailash Wati expired before filing her written statement. Plaintiffs were granted exemption from bringing her LRs on record vide Order dated 19.02.1985. Hence, version/case of defendant no.-6 could not come on record.
G. CASE OF DEFENDANT NO.-7:-
1. Defendant no.-7 in his written statement has stated that no cause of action has arisen against him to file the present suit. The allegations of collusion are vague, lacking in material particulars and are in fact bald averments bereft of any statement of facts in support of said averments.
Plaint is liable to be rejected against defendant no.-7.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 56/902. On merits also, defendant no.-7 denied that he entered into a conspiracy with defendants no..-1,3 and 4 to take illegal possession of the shop in question. Defendant no.-7 admitted that as a Chartered Accountant he used to attend Income Tax proceedings alongwith defendant no.-3 for the last 7 to 8 years. Defendant no.-7 admitted that income tax returns of two firms i.e. M/s Chhotey Lal Sharad Kumar and M/s Chhotey Lal Jaipal Mal were signed by plaintiff no.-1 as sole proprietor.
3. In his written statement, defendant no.-7 denied the allegations that in conspiracy with defendants no.-1, 3 and 4, he manipulated or made entries in the books of accounts of M/s Chhotey Lal Jaipal Mal. The accounts of the firm were never maintained by him. Defendant no.-7 has further claimed that he only filed the income tax returns of the firm on the basis of balance sheets prepared by plaintiff no.-1 or got prepared by her. Defendant no.-7 has further stated that he is unaware as to who prepared the balance sheet of maintained accounts as the same is a matter of internal management of the firm. Apart from filing the income tax returns he also appeared before income tax authorities as and when required for the purpose of acceptance of the returns filed. Defendant no.-3 or some other employee of firm used to bring the necessary record and take it back.
4. According to defendant no.-7, the question of refusing to return any papers does not arise as the same were never kept by him. Defendant no.7 denied the allegations that he committed theft of records of Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 57/90 plaintiffs.
5. According to defendant no.-7, the balance sheet for assessment year 1983-84 was prepared and supplied to him by plaintiff no.-1 and he merely filed income tax return. In the said return, plaintiff no.-1 was shown as the proprietor. When the income tax officer issued notices before finalization of the returns and sought records in support of the return filed, it was revealed the plaintiff no.-1 is a partner with M/s Arya Shayam Lal Jaipal Mal. The order dated 02.03.1984 was thus passed based on the records maintained by the plaintiffs and produced by defendant no.-3 on behalf of plaintiff no.-1. According to defendant no.7, he was unaware of the accounts books of the firms before their production before Income Tax Officer. Defendant no.-7 has further claimed that being an outsider he is unable to make any submission regarding existence or non existence of any partnership. Defendant no.-7 has further claimed that if he had conspired with defendants no.-1, 3 and 4 he would have filed the returns showing the business to be the partnership business and not the sole proprietorship of plaintiff no.-1.
6. Defendant no.-7 in his written statement has denied that he by any claim or conduct has thrown a cloud on rights of the plaintiff. No cause of action has accrued against defendant no.-7 and therefore, the suit filed by plaintiffs is liable to be rejected with costs qua defendant no.-7.
H. REPLICATION Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 58/90 Plaintiffs have filed replication qua written statement filed by defendants reiterating therein contents of plaint and denying the version of defendants.
I. ISSUES After completion of pleadings, the following issues were framed on 23.01.1995 :-
(1)Whether plaintiff is the sole tenant of defendant no. 5 in the front portion of Shop No. 3670, Chawri Bazar, Delhi and of defendant no. 6 in back portion of the said shop? OPP (2)If issue no. 1 is decided against the plaintiff, whether M/s Chote Lal Jaipal Mal, partnership firm was the tenant in the premises in question? If so, who were the partners?OPD (3) Whether plaintiff no. 1 made arrangement for running the business M/s. Chote Lal Jaipal Mal on commission basis through M/s. Gayatri Enterprises, a concern of defendant no. 3? If so, its effect? OPP (4) Whether defendant no. 1 had any right, title or interest in the tenancy of shop where business of M/s. Chote Lal Jaipal Mal was carried out? OPD (5) Whether M/s. Chote Lal Jaipal Mal sold all their stock-in-trade to defendant no. 8? If so, when and to what effect? OPD (6) Whether plaintiff no. 1 never agreed to sell the stock-in-trade of M/s. Chote Lal Jaipal Mal or the surrender of tenancy rights in the shop to defendant no. 1 & defendant no. 8? OPP Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 59/90 (7) Whether plaintiff no. 1 or the plaintiffs jointly are owners of the business carried out in the shop under the name and style of M/s.
Chote Lal Jaipal Mal and / or M/s. Chote Lal Sharad Kumar? OPP (8) Whether the plaintiff is entitled to decree for rendition of account? If so, against whom? OPP (9) Whether the plaintiffs are entitled to relief of injunction as prayed for? If so against whom? OPP (10) Whether the plaintiffs are entitled to possession of premises no. 3670, Chawri Bazar, Delhi? OPP (11) Whether the suit in the present form is not maintainable in view of Section 34 of the Specific Relief Act? OPD (12) Whether Sh. Satya Sheel Gupta ever drew commission on the sale effected by M/s. Chote Lal Jaipal Mal? If so, its effect? OPD (13) Whether plaintiffs are entitled to the declaration prayed for? OPP (14) Whether the suit has not been property valued for the purpose of court fee and jurisdiction? OPD (15) Whether the suit is bad for mis-joinder of parties and cause of action? OPD (16) Whether the plaint does not disclose cause of action against defendants 5 & 7? OPD (17) To what relief, plaintiff is entitled?
J. EVIDENCE LED BY PLAINTIFFS:-
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 60/901. In support of their case, plaintiffs have produced and examined only one witness i.e PW-1. PW-1 is Sh. Sharad Gupta i.e. plaintiff no.2. Initially, statement/examination in chief of PW-1 was partly recorded in Hon'ble High Court on 15.11.1995, 16.11.1995 and 23.11.1995. Thereafter, due to enhancement of pecuniary jurisdiction of District Courts, matter was transferred to District Courts for trial. On 30.04.2007, PW-1 in addition to his statement recorded on 15.11.1995, 16.11.1995 and 23.11.1995 filed and tendered his evidence by way of affidavit i.e. A-1. Thereafter, examination in chief of PW-1 continued for several dates. Examination in chief of PW-1 was completed on 15.11.2011. PW- 1 also relied upon following documents i.e. Ex.PW-1/1 to Ex.PW-1/177:-
(1) Ex.PW-1/1 i.e. Site Plan.
(2) Ex.PW-1/2 i.e. Certified copy of partnership deed. (3) Ex.PW-1/3 i.e. Certified copy of GPA in favour of father of PW-1. (4) Ex.PW-1/4 i.e. Certificate of registration under The Shops and Establishment Act.
(5) Ex.PW-1/5 i.e. Certified copy of judgment in S.A.O. No. 19/68. (6) Ex.PW-1/6 i.e. Certified copy of eviction petition bearing S. No. 612/74.
(7) Ex.PW-1/7 i.e. Certified copy of judgment of Additional Rent Controller.
(8) Ex.PW-1/8 to Ex.PW-1/38 i.e. Rent receipts issued by Smt Kailashwati in favour of M/s Chhotey Lal Sharad Kumar. (9) Ex.PW-1/39 to Ex.PW-1/41 i.e. Three letters dated 10.08.1982, 10.03.1983 and 13.02.1984 written by plaintiff to Smt Kailashwati.
(10) Ex.PW-1/42 & Ex.PW-1/43 i.e. Postal Receipts and AD Cards qua Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 61/90 letter dated 10.03.1983.
(11) Ex.PW-1/44 i.e. Undelivered and returned envelope pertaining to said letter.
(12) Ex.PW-1/45 to Ex.PW-1/47 i.e. Postal Receipts etc in respect of Letter dated 10.08.1982.
(13) Ex.PW-1/48 & Ex.PW-1/49 i.e. Postal receipt etc in respect of letter dated 13.02.1984.
(14) Ex.PW-1/50 i.e. Returned Money Order.
(15) Ex.PW-1/51 & Ex.PW-1/52 i.e. Coupons showing receipt of two money orders by Smt Kailashwati.
(16) Ex.PW-1/53 to Ex.PW-1/56 i.e. Counterfoils of Money orders received by M/s Mani Lal(defendant no.-5).
(17) Ex.PW-1/57 & Ex.PW-1/58 i.e. Letters received by plaintiff from defendant no.-5.
(18) Ex.PW-1/59 to Ex.PW-1/74 i.e. Original deposit receipts vide which rent in favour of defendant no.-5 has been deposited under Section 27 of Delhi Rent Control Act.
(19) Ex.PW-1/75 to Ex.PW-1/92 i.e. Counterfoils of the Cheques issued by plaintiff to various parties.
(20) Ex.PW-1/93 i.e. Letter of authority dated 28.07.1981 given to Sh. Bhola Nath and Sh. Anil Bansal by plaintiff.
(21) Ex.PW-1/94 i.e. Signed copy of appeal filed on 01.05.1984 by mother of PW-1 against assessment order.
(22) Ex.PW-1/95 i.e. Certified copy of Order dated 14.09.1984 passed by Appellate Authority.
(23) Ex.PW-1/96 to Ex.PW-1/99 i.e. Copy of assessment order for the Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 62/90 assessment years 1974-75 to 1976-77.
(24) Ex.PW-1/100 i.e. Copy of Appellate Assistant Commissioner dated 18.01.1984 against the notice of demand dated 26.03.1980. (25) Ex.PW-1/101 to Ex.PW-1/105 i.e. Copy of assessment orders for the years 1978-79 to 1982-83.
(26) Ex.PW-1/106 to Ex.PW-1/117 i.e. Copy of returns and balance sheets signed by mother of PW-1 for the assessment years 1974-75 to 1979-80.
(27) Ex.PW-1/118 i.e. Copy of return for assessment year 1980-81. (28) Ex.PW-1/119 to Ex.PW-1/121 i.e. Copy of returns and balance sheets for the assessment year 1980-81 to 1981-82. (29) Ex.PW-1/122 i.e. Original notice of demand dated 17.03.1979. (30) Ex.PW-1/123 i.e. Original notice of demand dated 26.03.1980. (31) Ex.PW-1/124 i.e. Counterfoils of the income tax challans dated 28.01.1982.
(32) Ex.PW-1/125 i.e. Counterfoil of Income Tax Challan dated 02.03.1984.
(33) Ex.PW-1/126 & Ex.PW-1/127 i.e. Counterfoil of Income Tax Challan dated 14.07.1981 and 17.03.1982 respectively. (34) Ex.PW-1/128 & Ex.PW-1/129 i.e. Certificate for the commission paid to defendant no.-3 for the period 1974-75 and 1975-76. (35) Ex.PW-1/130 i.e. Copy of Power of Attorney Notarized at Houston (USA) on 29.08.1983.
(36) Ex.PW-1/131 i.e. One Letter.
(37) Ex.PW-1/132 i.e. Copy of Letter dated 10.08.1978 marked to defendant no.-1 and defendant no.-3.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 63/90(38) Ex.PW-1/133(Colly) i.e. Documents from Income Tax Department. (39) Ex.PW-1/134(Colly) i.e. Documents pertaining to Sales Tax Assessment.
(40) Ex.PW-1/136 i.e. Certified copy of partition deed. (41) Ex.PW-1/137 i.e. Copy of Intimation sent to Income Tax Department for registration of the firm M/s Chhotey Lal Jaipal Mal and Chhotey Lal Sharad Kumar having plaintiff no.-1 and plaintiff no.-2 as equal partners.
(42) Ex.PW-1/138 i.e. Original receipt no.-788831 dated 19.03.1984 issued by Income Tax Department with respect to Ex.PW-1/137 (43) Ex.PW-1/139 i.e. Original Receipt dated 05.09.1994 alongwith Circular dated 10.09.1994.
(44) Ex.PW-1/140 i.e. Certified copy of plaint with respect to eviction petition no.612 of 1972.
(45) Ex.PW-1/141 i.e. Marriage Card of plaintiff no.-2. (46) Ex.PW-1/141 i.e. Letter dated 03.05.1984 vide which Bank converted the OCC Limit Account to current account. (47) Ex.PW-1/142 i.e. Letter dated 09.05.1984 written by Bank. (48) Ex.PW-1/143 i.e. Copy of FIR registered against PW-1. (49) Ex.PW-1/144 i.e. The file pertaining to proceedings under Section 107/150 Cr.P.C.
(50) Ex.PW-1/145 I..e Certified copy of Statement of defendant no.-1 recorded by SDM.
(51) Ex.PW-1/146 i.e. File pertaining to proceedings under Section 145 Cr.P.C.
(52) Ex.PW-1/147 i.e. Complaint dated 29.06.1984 lodged by plaintiff Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 64/90 no.1 against defendants with SHO PS Hauz Qazi.
(53) Ex.PW-1/148 i.e. Letter dated 20.07.1984 written by plaintiffs to SHO PS Hauz Qazi.
(54) Ex.PW-1/149 i.e. Letter dated 11.07.1984 written by Chartered Bank.
(55) Ex.PW-1/150 i.e. Letter dated 09.07.1984.
(56) Ex.PW-1/151 i.e. File of Case filed in the Court of Ld. MM. (57) Ex.PW-1/152 i.e. Notice dated 21.08.1984 sent to defendant no.-6. (58) Ex.PW-1/153 i.e. Notice dated 21.08.1984 sent to defendant no.-1. (59) Ex.PW-1/154 to Ex.PW-1/156 i.e. Medical Certificates pertaining to plaintiff no.-1 as well as her husband.
(60) Ex.PW-1/157 i.e. Signed Copy of letter dated 10.07.1984 with postal receipts etc. (61) Ex.PW-1/158 i.e. MTNL Bill for Rs.304/- alongwith postal receipts dated 16.07.1984.
(62) Ex.PW-1/159 & Ex.PW-1/160 i.e. Letters dated 09.06.1984 and 18.06.1984.
(63) Ex.PW-1/161 & Ex.PW-1/162 i.e. 100 shares of defendant no.-8 purchased by Lala Chhotey Lal during his lifetime. (64) Ex.PW-1/163 i.e. Receipt dated 27.08.1965 confirming payment for said shares.
(65) Ex.PW-1/164 i.e. Letter dated 20.01.1966 addressed by defendant no.-8 to plaintiff no.-1.
(66) Ex.PW-1/165 i.e. Letter dated 18.03.1966 addressed to plaintiff no.1.
(67) Ex.PW-1/166 i.e. letter dated 07.05.1966 from defendant no.-8 to Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 65/90 plaintiff no.-1.
(68) Ex.PW-1/167 i.e. Letter dated 04.11.1971 addressed to Chhotey Lal Jaipal Mal, Chawri Bazar Delhi.
(69) Ex.PW-1/168 i.e. Letter dated 06.12.1974 from plaintiff no.-1 to defendant no.-8 regarding change of address.
(70) Ex.PW-1/169 i.e. Circular dated 08.01.1977 to all shareholders. (71) Ex.PW-1/170 i.e. Letter dated 04.05.1977 from plaintiff no.-1 in response to said circular.
(72)Ex.PW-1/171 to Ex.PW-1/173 i.e. Letters dated 18.04.1978 and 21.02.79 addressed to plaintiff no.-1 by defendant no.-8 with respect to transfer of 600 shares.
(73) Ex.PW-1/174 i.e. Letter pertaining to Sale of 600 shares by plaintiff no.-1 to sister of defendant no.-1.
(74) Ex.PW-1/175(Colly) i.e. Sales Tax Declaration forms issued to various creditors.
(75) Ex.PW-1/176 i.e. Documents Summoned from Canara Bank. (76) Ex.PW-1/177 i.e. Documents Summoned from National Grindlays Bank.
Apart from aforesaid exhibited documents PW-1 also relied upon various other documents i.e. Ex. P-1 to Ex.P-44. PW-1 also relied upon some other documents which have been marked in his testimony.
PW-1 was cross examined at length by/on behalf of defendant no.- 1,2,3 & 8. PW-1 was not cross examined by/on behalf of remaining defendants i.e. defendant no.-4,5,6 & 7.
No other witness has been produced/examined by plaintiffs in support of their case.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 66/90K. EVIDENCE LED BY DEFENDANT NO.-1:-
1. In support of his case, defendant no.-1 produced and examined two witnesses. DW-1 is defendant no.-1 himself. DW-1 filed and tendered his evidence by way of affidavit i.e. Ex. DW-1/A and relied upon documents i.e. Ex.DW-1/1 to Ex.DW-1/6, Ex.DW-1/9 to Ex.DW- 1/15 and Ex.DW-1/17 to Ex.DW-1/21.
2. DW-1 was partly cross examined by Ld. Counsel for plaintiffs on 15.05.2017 and thereafter on 30.05.2017. Remaining cross examination of DW-1 was deferred for 08.06.2017. On 08.06.2017, DW-1 failed to appear in Court, therefore, DW-1 could not be further cross examined. Remaining cross examination of DW-1 was deferred. On 11.07.2017 also, DW-1 failed to appear in Court on account of ill -health. Matter was again adjourned for remaining cross examination of DW-1. However, DW-1 failed to appear in Court for his remaining cross examination inspite of several opportunities for the same. Consequently, D.E. was closed vide order dated 14.07.2017. Thereafter, defendant no.-1/DW-1 moved an application seeking recalling of Order dated 14.07.2017 and seeking permission to lead evidence. The said application was also dismissed vide Order dated 02.08.2017 and even cost of Rs.10,000/- upon defendant no.-1. Aggrieved by Order dated 02.08.2017, defendant no.-1 filed a petition in Hon'ble High Court of Delhi against said Order i.e. dated 02.08.2017. Said petition was dismissed as withdrawn vide order dated 08.11.2017 as defendant no.-1/DW-1 expired on 20.10.2017. Hence, cross examination of DW-1 could not be completed/concluded.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 67/903. DW-2 is Sh. Anand Kumar, JJA, Record Room Civil, Tis Hazari Courts. DW-2 was summoned with file of Eviction case no. 911/61 titled as Mani Lal Vs. Chote Lal, decided on 02.08.1966 having goshwara no. 416/RC, Central. DW-2 in his statement recorded in Court stated that as per the register brought by him summoned record has been destroyed.
No other witness has been produced/examined by defendant no.-1 in support of his case.
L. EVIDENCE LED BY DEFENDANTS NO. 2 TO 8:-
No witness has been produced/examined by defendant no.-2 to 8 in support of their case/claims.
M. I had heard Ld. Counsel for the plaintiffs as well as Ld. Counsel(s) for legal heirs of defendant no.-1. I have perused the record carefully. I have also perused the written arguments filed on behalf of plaintiffs as well as legal heirs of defendant no.-1.
N. My findings on the issues are as under:-
Issue no.-2, 4, 5, 11, 12, 14, 15 and 16 are taken up first. Onus of proving said issues is upon defendants.
ISSUE NO.-(2):- If issue no. 1 is decided against the plaintiff, whether M/s Chote Lal Jaipal Mal, partnership firm was the tenant in the premises in question? If so, who were the partners?OPD ISSUE NO.-(4):- Whether defendant no. 1 had any right, title or interest in the tenancy of shop where business of M/s. Chote Lal Jaipal Mal was carried out? OPD Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 68/90 ISSUE NO.-(5):- Whether M/s. Chote Lal Jaipal Mal sold all their stock-in-trade to defendant no. 8? If so, when and to what effect? OPD ISSUE NO.-(11):- Whether the suit in the present form is not maintainable in view of Section 34 of the Specific Relief Act? OPD ISSUE NO.-(12):- Whether Sh. Satya Sheel Gupta ever drew commission on the sale effected by M/s. Chote Lal Jaipal Mal? If so, its effect? OPD ISSUE NO.-(14):- Whether the suit has not been property valued for the purpose of court fee and jurisdiction? OPD ISSUE NO.-(15):- Whether the suit is bad for mis-joinder of parties and cause of action? OPD ISSUE NO.-(16):- Whether the plaint does not disclose cause of action against defendants 5 & 7? OPD It is reiterated that onus of proving the aforesaid issues is on defendants.
It is a matter of record that no evidence has been led by defendants no.-2 to 8 in the present case. Defendant no.-2 had expired during trial and his legal heirs were proceeded exparte vide order dated 18.02.2017. Defendant no.-3 was deleted from array of parties vide order dated 25.02.2017. Defendant no.-4 had also expired and his name was also deleted from array of parties. Defendant no.-5 was proceeded exparte vide order dated 30.09.2004. Defendant no.-6 had also expired even before filing her written statement and plaintiffs were granted exemption from bringing her LRs on record. Defendant no.-7 and defendant no.-8 Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 69/90 were also proceeded exparte vide order dated 19.10.2006 and 18.02.2017 respectively.
It is also a matter of record that only defendant no.-1 has led evidence in support of his case/claim. Defendant no.-1/DW-1 i.e. Sh. Satyasheel Gupta filed and tendered his evidence by way of affidavit i.e. Ex.DW-1/A and relied upon documents i.e. Ex.DW-1/1 to Ex.DW-1/6, Ex.DW-1/9 to Ex.DW-1/15 and Ex.DW-1/17 to Ex.DW-1/21.
Perusal of record shows that DW-1 was partly cross examined by Ld. Counsel for plaintiffs on 15.05.2017 and thereafter on 30.05.2017. Remaining cross examination of DW-1 was deferred for 08.06.2017. On 08.06.2017, DW-1 failed to appear in Court, therefore, DW-1 could not be further cross examined. Remaining cross examination of DW-1 was deferred. On 11.07.2017 also, DW-1 failed to appear in Court on account of his ill-health. Matter was again adjourned for remaining cross examination of DW-1. However, DW-1 failed to appear in Court for his remaining cross examination inspite of several opportunities for the same. Consequently, D.E. was closed vide order dated 14.07.2017. Thereafter, defendant no.-1 moved an application seeking recalling of Order dated 14.07.2017 and seeking permission to lead evidence. The said application was also dismissed vide Order dated 02.08.2017 with cost of Rs.10,000/- upon defendant no.-1. Aggrieved by Order dated 02.08.2017, defendant no.-1 filed a petition in Hon'ble High Court of Delhi against said Order i.e. dated 02.08.2017. Said petition was dismissed as withdrawn vide order dated 08.11.2017 as defendant no.- 1/DW-1 expired on 20.10.2017. Hence, cross examination of DW-1 could not be completed/concluded.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 70/90The question which is to be answered at this stage is whether any reliance can be placed upon testimony of DW-1?
Answer to aforesaid question can be found in a case titled as Ripen Kumar Vs. Department of Customs: 2001 CRI.L.J. 1288 wherein Division Bench of Hon'ble High Court of Delhi held that "The words 'all statements' in Section 3 of Evidence Act (1872) include the examination in chief as well as the cross examination and subject to the permission re-examination also. It is only when the witness is permitted to be cross examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross examined fully. Only thereafter, the evidence given by a witness in judicial proceedings is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the evidence act, evidence means the examination in chief and cross examination. That statement alone will form evidence. In the present case, petitioner had been deprived to cross examine prosecution witness thereby dislodge his testimony. Hence, incomplete statement of prosecution witness in the absence of cross- examination could not be treated as evidence nor the same could be relied upon."
In the present case also, defendant no.-1/DW-1 was cross examined in part. Thereafter, defendant no.-1/DW-1 failed to appear in Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 71/90 Court for his remaining cross examination inspite of several opportunities for the same. Consequently, D.E. was closed by my Ld. Predecessor. Thereafter, an application filed by defendant no.-1/DW-1 for leading D.E. was also dismissed by my Ld. Predecessor. Aggrieved by said order, defendant no.-1/DW-1 filed a petition in Hon'ble High Court of Delhi. However, the said petition was also dismissed as withdrawn as defendant no.-1/DW-1 expired during its pendency. Perusal of record clearly shows that cross examination of DW-1/ defendant no.-1 could not be completed due to fault of DW-1/defendant no.-1 himself as he failed to appear in Court on several dates of hearing. Since cross-examination of DW-1 could not be completed, no reliance can be placed upon incomplete testimony of DW-1. Testimony of DW-2 is of formal nature as he merely stated that the summoned record has been destroyed.
The aforesaid facts, circumstances as well as discussion made hereinabove clearly shows that virtually no evidence has been led by defendant no.-1 in support of his case/claim. It is reiterated that no reliance can be placed upon testimony of defendant no.--1/DW-1 as the same is incomplete. Even defendant no.-2 to defendant no.-8 have also not led any evidence in support of their case/claims.
Onus of proving aforesaid issues was upon defendants. The defendants have failed to lead any evidence to prove the same in their favour.
Hence, issue no.-2, 4, 5, 11, 12, 14, 15 & 16 are hereby decided against defendants.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 72/902. Now issue no.-1, 3, 6, 7, 8, 9, 10, 13 and 17 are taken up. It is pertinent to mention that onus of proving said issues is upon plaintiffs.
Issue no.-1 & 7 are taken up together as they are interconnected and their decision requires common/identical discussion of the evidence as well as facts and circumstances of the case.
ISSUE NO.-(1):- Whether plaintiff is the sole tenant of defendant no. 5 in the front portion of Shop No. 3670, Chawri Bazar, Delhi and of defendant no. 6 in back portion of the said shop? OPP ISSUE NO.-(7):- Whether plaintiff no. 1 or the plaintiffs jointly are owners of the business carried out in the shop under the name and style of M/s. Chote Lal Jaipal Mal and / or M/s. Chote Lal Sharad Kumar? OPP Plaintiffs have filed the present suit inter alia for declaration to the effect that plaintiff no.-1 is the sole tenant of the front portion of shop No. 3670, Chawri Bazar, Delhi under defendant no.-5 and of the back portion under defendant no.-6 and also for declaration to the effect that plaintiff no.-1 or the plaintiffs jointly are the owners of the business carried out in said shop under the name and style of M/s Chhotey Lal Jaipal Mal and M/s Chhotey Lal Sharad Kumar.
In their plaint, plaintiffs have stated that Sh. Chhotey Lal(father of plaintiff no.-1) was a tenant in shop in question. Sh. Chhotey Lal was running his business of hardware under the name and style of M/s Chhotey Lal Jaipal Mal in the said shop. Sh. Chhotey Lal expired on 28.07.1955. Thereafter, Smt Bhagwan Devi i.e. mother of plaintiff no.1 began to manage the business through her employees. After some time Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 73/90 Smt Bhagwan Devi also expired and plaintiff no.1 being legal heir/legal representative carried on said business.
According to plaintiffs in April 1971, plaintiff no.-1 started business as a dealer of Cement Manufactured by Cement Corporation of India under the name and style of M/s Chhotey Lal Sharad Kumar which was sole proprietary business. This business continued till April 1973 when plaintiff no.1 had started her business as Cement Dealers under the name of M/s Chhotey Lal Sharad Kumar. She opened a bank account in that name and style with National and Grindlays Bank, Asif Ali Road and Union Bank of India, Chawri Bazar, Delhi. She alone was operating the said accounts. The business of sale of Cement was discontinued in end of April 1973. In July 1971, the business of sale of wire netting was started in said shop under the name of M/s Chhotey Lal Jaipal Mal of which plaintiff no.-1 was the sole proprietor.
Perusal of corresponding para of written statement filed by defendant no.-1 shows that in said para defendant no.-1 has stated that dealership of Cement Corporation of India was obtained under the name of M/s Chhotey Lal Sharad Kumar because defendant no.-1 was not interested in doing cement business and it was for this reason that the cement business was not done under the name of M/s Chhotey Lal Jaipal Mal. Defendant no.-1 has further stated that as far as issuance of rent receipt by Smt Kailashwati(defendant no.-6) in the name of M/s Chhotey Lal Sharad Kumar is concerned the same was arranged by defendant no.1 purely to accommodate and assist plaintiff no.-1 in her endeavor to obtain dealership of Cement. Perusal of written statement filed by defendant no.1 clearly shows that defendant no.1 has not claimed any Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 74/90 right, title or interest in the business being carried in the name of M/s Chhotey Lal Sharad Kumar. Other defendants have also not claimed any right, title or interest in said business.
Hence, as far as business in the name and style of M/s Chhotey Lal Sharad Kumar is concerned it is admitted even by the defendants that they have no concern with the same and the plaintiffs are the owners of the same.
The main dispute between parties is pertaining to business carried on the name & style of M/s Chhotey Lal Jaipal Mal. On the one hand, plaintiffs have claimed that plaintiff no.-1 was the sole proprietor of the same till 01.04.1983 on which date she took in her son i.e. plaintiff no.-2 as partner. On the other hand, defendant no.-1 has claimed that after partition of HUF of Lala Ram Dittal Mal, Lala Chhotey Lal and Lala Jaipal Mal retained the name and style of M/s Chhotey Lal Jaipal Mal and carried business from shop in question. The firm M/s Chhotey Lal Jaipal Mal and its proprietors i.e. Chhotey Lal & Jaipal Mal were tenants of shop in question. Other defendants except defendants no.-5 & 6 have also supported version of defendant no.-1 to some extent.
Perusal of record shows that it is not in dispute that defendant no.- 5 is the owner/landlord of front portion of said shop and defendant no.-6 is the owner/landlord of back portion of the said shop. It is a matter of record that defendant no.-6 expired before filing her written statement and plaintiffs were granted exemption from bringing LRs of defendant no.-6 on record. As far as defendant no.-5 is concerned, defendant no.-5 in his written statement has admitted that M/s Chhotey Lal Jaipal Mal is the tenant in said shop. Defendant no.-5 further admit that since the Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 75/90 delivery of keys plaintiff no.-1 is in possession of said shop.
It is reiterated that in order to prove his case, defendant no.-1 entered in witness box as DW-1 and filed his evidence by way of affidavit. DW-1 was partly cross examined but his cross examination could not be completed for the reasons mentioned above and hence no reliance can be placed upon incomplete testimony of DW-1/defendant no.-1. Other defendants have failed to lead any evidence in support of their claim.
In view of aforesaid facts and circumstances, the defendants have failed to prove their contention that Lala Chhotey Lal and Lala Jaipal Mal were proprietors/partners of firm i.e. M/s Chhotey Lal Jaipal Mal (tenant of shop in question).
On the other hand, PW-1/plaintiff no.-2 in his oral testimony as well as in his evidence by way of affidavit i.e. Ex.A-1 has reiterated their version as stated in plaint. In order to prove their case/claim, PW- 1/plaintiff no.-2 has relied upon various documents. Ex.PW-1/4 is registration certificate issued by Chief Inspector, Shops and Establishment Delhi stating therein the name of Establishment as M/s Chhotey Lal Jaipal Mal. In the column, pertaining to name of occupier/employer name of plaintiff no.-1 i.e. Smt Usha Gupta (@ Satyawati) only had been mentioned. The said certificate is pertaining to shop in question and by virtue of said certificate it has been certified that said Establishment has been registered as Shops on 29.11.1971. Perusal of Ex.PW-1/4 clearly shows that there is no mention of defendant no.-1 or any other person except Usha Gupta(plaintiff no.-1) in the same. The said document has been issued by a government authority and is Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 76/90 pertaining to period prior to filing of present suit. No explanation/reason has been given by defendant no.-1 as to why his name is not mentioned therein if he is a partner in M/s Chhotey Lal Jaipal Mal as claimed by him.
Ex.PW-1/5 is Certified copy of judgment dated 24.12.1970 passed by Hon'ble High Court of Delhi in S.A.O. No. 19 of 1968 titled as M/s Mani Lal & Brothers Vs. M/s Chhotey Lal Jaipal Mal & Ors. Perusal of judgment dated 24.12.1970 shows that the said appeal was filed by appellants(defendant no.-5 herein) against M/s Chhotey Lal Jaipal Mal i.e. tenant and also against Satywati @ Usha Gupta(plaintiff no.-1 herein) stating therein that M/s Chhotey Lal Jaipal Mal was the tenant in respect of shop in question and Sh Chhotey Lal was the proprietor of said concern. It is further stated that Sh. Chhotey Lal died on 28.07.1955 and thereafter, his widow i.e. Smt. Bhagwan Devi became proprietor of said concern. Thereafter, Bhagwan Devi also expired in 1964 and her daughter i.e. Satywati @ Usha Gupta(plaintiff no.-1) was substituted as respondent in place of her deceased mother. Perusal of Ex.PW-1/5 clearly shows that in Ex.PW-1/5 also there is no mention of defendant no.-1 or any other defendant. According to Ex.PW-1/5 also, M/s Chhotey Lal Jaipal Mal was the tenant in shop in question and Chhotey Lal was proprietor of said concern. After death of Sh. Chhotey Lal, tenancy rights devolved upon his widow and after her death Smt Satyawati @ Usha Gupta was substituted in her place. Said appeal was filed by defendant no.-5 herein. Ex.PW-1/5 also clearly shows that defendant no.-1 had no concern whatsoever with the tenant i.e. M/s Chhotey Lal Jaipal Mal. Even with regard to Ex.PW-1/5 no explanation has come from defendant Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 77/90 no.-1 as to why he was not arrayed as a party in the said petition if he was a partner in said concern.
Ex.PW-1/6 is certified copy of eviction petition bearing no.- 612/74. Perusal of Ex.PW-1/6 also shows that the same was filed by defendant no.-5 i.e. Landlord against M/s Chhotey Lal Jaipal Mal through its proprietress i.e. Smt Satyawati @ Usha Gupta (plaintiff no.-
1.) Plaintiff no.-1 was also arrayed as a party i.e. respondent no.-2 in said petition. Perusal of Ex.PW-1/6 also shows that M/s Chhotey Lal Jaipal Mal was the tenant in shop in question and plaintiff no.-1 is the proprietor of M/s Chhotey Lal Jaipal Mal. Ex.PW-1/6 also clearly shows that the landlord i.e. defendant no.-5 admitted that M/s Chhotey Lal Jaipal Mal is the tenant in the said shop and plaintiff no.-1 is its proprietor. It is settled proposition of law that facts admitted need not be proved. In Ex.PW-1/6 also there is no mention of defendant no.-1 or any other defendant. Defendant no.-1 even failed to specify/state as to what action was taken by him when he was not arrayed as a party in said proceedings.
Ex.PW-1/7 is certified copy of judgment dated 17.08.1977 passed by Ld. Additional Rent Controller. Perusal of Ex.PW-1/7 also shows that the said judgment was passed on a petition filed by defendant no.-5 herein for eviction of tenant under Section 14(1)(a)(b)&(j) of Delhi Rent Control Act 1958. The said petition was also filed against M/s Chhotey Lal Jaipal Mal i.e. tenant through its proprietress i.e. Smt Satywati @ Usha Gupta (plaintiff no.-1) Plaintiff no.-1 herein also impleaded as respondent no.-2 in said eviction petition. Even in Ex.PW-1/7, there is no mention of defendant no.-1 or any other defendant. Even with regard to Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 78/90 Ex.PW-1/7 no explanation has been offered by defendant no.-1 as to why his name is not mentioned in the same and also why he was not arrayed as a party in the said proceedings if he was a partner in M/s Chhotey Lal Jaipal Mal as claimed by him.
Apart from aforesaid documents plaintiffs have filed/relied upon as well as proved various other documents i.e. Ex.PW-1/8 to Ex.PW-1/38 i.e. Rent receipts issued by Smt Kailashwati(defendant no.-6) in favour of M/s Chhotey Lal Sharad Kumar. The said rent receipts were issued qua back portion of shop in question owned by defendant no.-6. It is a matter of record that defendant no.-1 has not claimed any right, title or interest in M/s Chhotey Lal Sharad Kumar and plaintiff no.-1 was the sole proprietor of said concern/business.
Ex.PW-1/59 to Ex.PW-1/74 are original deposit receipts vide which rent in favour of defendant no.-5 was deposited under Section 27 of Delhi Rent Control Act.
Ex.PW-1/94 is copy of appeal filed by plaintiff no.-1 on 01.05.1984. Ex.PW-1/95 is Certified copy of order dated 14.09.1984 passed by Ms Aruna Bhatia, AAC, H Range, New Delhi. Vide order dated 14.09.1984, it has been held as under:-
"In this background, it is difficult to understand the basis of the ITO's finding that the assessee is running the business in the capacity of partnership firm. I, therefore, hold that the ITO's remarks in para 2 of his order are not called for and that the correct status of the assessee is that of a proprietor of the concerned M/s Chhotey Lal Jaipal Mal. The appeal is allowed."
It is reiterated that said appeal was filed by plaintiff no.-1 i.e. Smt Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 79/90 Usha Gupta against findings of the ITO that assessee i.e. Smt Usha Gupta(plaintiff no.-1) is running the business in the capacity of partnership firm.
Ex.PW-1/96 to Ex.PW-1/99 are copy of assessment order for the assessment years i.e. 1974-75 to 1976-77. Perusal of Ex.PW-1/96 to Ex.PW-1/99 also clearly shows that Smt Usha Gupta(plaintiff no.-1) has been shown as proprietor of M/s Chhotey Lal Jaipal Mal and also M/s Chhotey Lal Sharad Kumar. Even in Ex.PW-1/100 to Ex.PW-1/105 state so.
Perusal of Ex.PW-1/106 to Ex.PW-1/121 i.e. copy of assessment orders, copy of returns as well as balance sheets for the period w.e.f 1978 to 1982 also shows that plaintiff no.-1 has been shown as a proprietor of the aforesaid two businesses. Even in Ex.PW-1/122 as well as other documents pertaining to Income Tax Department plaintiff no.-1 has been shown as proprietor of said businesses. Defendants and more particularly defendant no.-1 have repeatedly claimed that plaintiff no.-1 was merely the name lender. Defendants have admitted that plaintiff no.-1 has been shown as proprietor of said businesses but the same was done for the reasons mentioned by them in their written statement. However, it is a matter of record that the defendants have failed to prove that plaintiff no.-1 was merely a money lender and the aforesaid businesses were benam businesses.
PW-1 has also relied upon Ex.PW-1/136 i.e. Certified copy of partition deed. Perusal of Ex.PW-1/136 also shows that there is no mention of hardware business being carried from shop in question in said partition deed. Ex.PW-1/136 also proves the claim of plaintiffs that Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 80/90 the business being run from shop in question under the name and style of M/s Chhotey Lal Jaipal Mal was not the partnership business/HUF business. Ex.PW-1/140 is certified copy of eviction petition no.-612 of 1972. Perusal of Ex.PW-1/140 also shows that the said petition was filed by defendant no.-5 against plaintiff no.-1 i.e. Satywati Devi@ Usha Gupta, M/s Chhotey Lal Jaipal Mal and also M/s Chhotey Lal Sharad Kumar. Perusal of Ex.PW-1/140 also shows that in para 3 of Ex.PW- 1/140, it is stated by defendant no.-5(plaintiff therein) that Sh. Chhotey Lal was the sole proprietor of defendant no.-2 therein i.e. M/s Chhotey Lal Jaipal Mal. No explanation has come from defendants and more particularly defendant no.-1 as to why he was not impleaded as a party in the said suit if he was also the proprietor/partner of firm i.e. M/s Chhotey Lal Jaipal Mal.
PW-1 has also relied upon various letters written by plaintiff no.-1 to various banks and vice-versa and the said letters also acknowledge/support the claim of plaintiff no.-1 i.e. being the sole proprietor of M/s Chhotey Lal Sharad Kumar as well as M/s Chhotey Lal Jaipal Mal.
Ex.PW-1/145 is Statement of defendant no.-1 recorded on 30.07.1984 by Sh. S.S. Sodhi revenue assistant. Perusal of Ex.PW-1/145 shows that in his said statement, defendant no.-1 stated that he has no claim in said shop.
PW-1/Plaintiff no.-2 was cross examined at length by Ld. Counsel for defendant no.-1 as well as on behalf of some other defendants. Perusal of lengthy cross-examination of PW-1 shows that Ld. Counsel
(s) for defendants failed to shake the testimony of plaintiff no.-2/PW-1.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 81/90Though Ld. Counsel(s) for defendants were able to elicit some details from the mouth of PW-1/ plaintiff no.-2 which shows that testimony of PW-1 is not consistent on some aspects. However, those aspects are not very material and the said inconsistencies does not make the whole testimony of PW-1 unreliable. Even the doctrine i.e. falsus in uno, falsus in omnibus is not applicable in India. Even otherwise the whole edifice of the case of plaintiffs is not based upon oral testimony of PW- 1/plaintiff no.-2. Apart from oral testimony of PW-1/plaintiff no.-2 plaintiffs have placed number of documents which shows that plaintiff no.-1 being proprietor of M/s Chhotey Lal Jaipal Mal is the tenant in shop in question under defendant no.-5 and 6. Plaintiffs by leading overwhelming evidence in this regard have clinched the aforesaid issues in their favour. It is settled proposition of law that a Civil Case is to be decided on the basis of preponderance of probabilities and proof beyond reasonable doubt is not required in civil cases.
In view of aforesaid facts, circumstances as well as discussion made hereinabove, I am of the considered view that plaintiffs have duly proved that they are the tenants in shop in question as well as owners of the aforesaid businesses.
Hence, issue no.-1 & 7 are decided in favour of plaintiffs and against defendants.
ISSUE NO.-(3):- Whether plaintiff no. 1 made arrangement for running the business M/s. Chote Lal Jaipal Mal on commission basis through M/s. Gayatri Enterprises, a concern of defendant no. 3? If so, its effect? OPP Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 82/90 It is reiterated that defendant no.-3 was deleted from array of parties vide order dated 25.02.2017. It is also reiterated that relief/prayer regarding rendition accounts was deleted vide order dated 24.11.2018 against all defendants as requested by plaintiff no.-2 vide his statement dated 24.11.2018 recorded in Court.
Since defendant no.-3 was deleted from array of parties and even the relief/prayer regarding rendition of accounts was deleted, I am of the considered view that issue no.-3 has become inconsequential and it no longer survives and no judicial adjudication of the same is required.
Hence, issue no.-3 is hereby struck off.
ISSUE NO.-(6):- Whether plaintiff no. 1 never agreed to sell the stock-in-trade of M/s. Chote Lal Jaipal Mal or the surrender of tenancy rights in the shop to defendant no. 1 & defendant no. 8? OPP Perusal of record shows that even defendants have claimed that M/s Chhotey Lal Jaipal Mal sold all their stock in trade to defendant no.-8. Consequently, issue no.-5 was framed i.e. whether M/s Chhotey Lal Jaipal Mal sold all their stock in trade to defendant no.-8? If so, when and to what effect?.
As already discussed and held that defendants have failed to prove issue no.-5 in their favour as no evidence has been led by defendants in support of their case. It is reiterated that no reliance can be placed upon incomplete testimony of DW-1/defendant no.-1 due to reasons mentioned earlier. Consequently, defendants failed to prove that M/s Chhotey Lal Jaipal Mal sold all their stock in trade to defendant no.-8.
Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 83/90On the other hand, plaintiffs have claimed that plaintiff no.-1 never agreed to sell the entire stock in trade of M/s Chhotey Lal Jaipal Mal or surrender the tenancy rights in shop to defendant no.-1 and 8. In para 22 of plaint, plaintiffs have stated that from 30.04.1984 till 11.05.1984, not even a single item was taken delivery of by defendant no.-8 from the premises of M/s Chhotey Lal Jaipal Mal. No cash memo or any bill was raised from the shop mentioning the name of defendant no.-8. According to plaintiffs, all the sales made from the shop w.e.f. 01.05.1984 till 05.06.1984 were made on the cash memos of M/s Chhotey Lal Jaipal Mal. There was no sale by M/s Chhotey Lal Jaipal Mal to defendant no.- 8 under bill dated 30.04.1984. The payments allegedly made by cheques dated 03.04.1984 and 01.05.1984 were only made with a view to immediately withdraw the amount and only to get bank entries made. According to plaintiffs no actual payment was received. No ownership in goods passed. There was no sale. No sales tax was ever charged or paid. The alleged sale was not brought to the knowledge of plaintiff no.-1 or 2. There was no pressing necessity to liquidate the entire stocks and that too at the purchase price. Only a show of sale was made and false documents fabricated to provide false supporting evidence of an alleged sale. Alleged full consideration of Rs.4.5 lacs was not deposited. Plaintiff no.1 never availed of defendant no.-8 as her financiers. The documents prepared by defendants do not reflect any genuine sale at all. In subsequent paras of plaint also plaintiffs have reiterated that no such sale as alleged was made.
Defendant no.-2 and 8 in their common/joint written statement have stated that sale vide bill dated 30.04.1984 was a complete and valid Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 84/90 sale. The sale of goods by defendant no.-3 from shop in question under the trade name M/s Chhotey Lal Jaipal Mal was valid and complete and after symbolic delivery of the same was taken by defendant no.-8 ownership in goods vested in defendant no.-8. Defendant no.-2 & 8 have further stated that payments vide cheques dated 03.04.1984 and 01.05.1984 were made by the account payee cheques delivered to defendant no.-3 in presence of plaintiff and defendant no.-1.
Other defendants except defendant no.-5 and 6 have also stated on similar lines in their written statement.
However, it is a matter of record that the defendants have miserably failed to prove their aforesaid claim as no evidence has been led by them to prove the same. Issue no.-5 has been decided against defendants.
PW-1 in his evidence by way of affidavit reiterated that plaintiffs never agreed to sell the stock in trade of M/s Chhotey Lal Jaipal Mal or surrender the tenancy rights in the shop to defendants. Perusal of lengthy cross-examination of PW-1 clearly shows that Ld. Counsel(s) for the defendants failed to shake testimony of PW-1 in this regard. PW-1 denied all suggestions given to him in this regard.
On the one hand, defendants have failed to show that M/s Chhotey Lal Jaipal Mal sold all their stock in trade to defendant no.-8 and on the other hand, PW-1 has repeatedly reiterated that plaintiff no.-1 never agreed to sell the stock in trade of M/s Chhotey Lal Jaipal Mal or to surrender the tenancy rights in the shop to defendant no.-1 and defendant no.-8. Testimony of PW-1 in this regard remained unshaken and it inspires confidence. Thus, I am of the considered view that on the Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 85/90 scale/yardstick of preponderance of probabilities, plaintiffs have proved that they never agreed to sell the stock in trade of M/s Chhotey Lal Jaipal Mal to defendant no.-1 and 8 and never surrendered tenancy rights qua shop in question to them.
Hence, issue no.-6 is also decided in favour of plaintiffs and against defendants.
ISSUE NO.-(8):- Whether the plaintiff is entitled to decree for rendition of account? If so, against whom? OPP Perusal of record shows that plaintiff no.-2 i.e. Sharad Gupta vide his statement dated 24.11.2018 recorded in Court stated that relief of rendition of accounts is not pressed for against any of the defendants and the said relief be deleted. Consequently, vide order dated 24.11.2018, relief/prayer for rendition of accounts was deleted against all the defendants.
In view of aforesaid facts and circumstances, issue no.-8 no longer survives as the same stands deleted/struck off.
ISSUE NO.-(9):- Whether the plaintiffs are entitled to relief of injunction as prayed for? If so against whom? OPP While dealing with and deciding issue no.-1 & 7, it has been held that plaintiffs are sole tenant in shop in question and they are owners of businesses carried out in the shop in question under the name and style of M/s Chhotey Lal Jaipal Mal and also M/s Chhotey Lal Sharad Kumar.
Plaintiffs have also pleaded and proved that defendants and more particularly defendant no.-1 are disturbing the possession of the plaintiffs Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 86/90 of the said shop and are also interfering with their businesses.
It is a matter of record that defendant no.-3, defendant no.-4 and defendant no.-6 were deleted from array of parties. Defendant no.-2, 5, 7 & 8 were proceeded exparte. The main grievance of plaintiffs is against defendant no.-1 and not against the remaining defendants.
In view of my findings with respect to issue no.-1 and 7 and also in view of evidence led by plaintiffs regarding interference in their aforesaid businesses, I am of the considered view that plaintiffs are entitled to relief of injunction as prayed for against defendant no.-1.
Hence, issue no.-9 is decided in favour of plaintiff and against defendant no.-1.
ISSUE NO.-(10):- Whether the plaintiffs are entitled to possession of premises no. 3670, Chawri Bazar, Delhi? OPP It is a matter of record that possession of shop in question was handed over to M/s Chhotey Lal Jaipal Mal as well as plaintiff no.-1 by Hon'ble High Court of Delhi vide order/judgment dated 24.12.1970 in case titled as M/s Mani Lal & Brothers & Anr. Vs. M/s Chhotey Lal Jaipal Mal(Iron Merchants) & Ors. Copy of judgment dated 24.12.1970 is already on record and same is Ex.PW-1/5.
While dealing with and deciding issue no.-1 & 7, it has been held that plaintiffs are the owners of said businesses and also tenant of shop in question.
According to plaintiffs, plaintiff no.-1 is in continuous possession of shop in question as a tenant in her own right. According to plaintiffs, on 11.06.1984, SHO PS Hauz Qazi illegally and without any authority of Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 87/90 law seized one set of keys from plaintiff no.-2 after preparing seizure memo. The other set was similarly seized on 12.06.1984 from him. According to plaintiffs, the shop in question is in custodia legis and they are entitled for the possession of the same.
Perusal of record further shows that keys of shop in question were deposited with the registrar of Hon'ble High Court vide order dated 05.08.1985. Since plaintiffs have duly proved that they are the owners of said businesses as well as tenant of shop in question, I am of the considered view that plaintiffs are entitled to possession of shop in question.
Issue no.-10 is accordingly decided in favour of plaintiffs and against defendants.
ISSUE NO.-(13):- Whether plaintiffs are entitled to the declaration prayed for? OPP In the present case, plaintiffs have prayed for a decree of declaration in their favour to the effect that they are the owners of businesses known as M/s Chhotey Lal Jaipal Mal and M/s Chhotey Lal Sharad Kumar in shop no. 3670, Chawri Bazar, of which plaintiff no.-1 is the sole tenant of the front portion under defendant no.-5 and also of the back portion under defendant no.-6 and has a right to take/keep possession thereof.
Section 34 of The Specific Relief Act, 1963 postulates that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 88/90 therein a declaration that he is so entitled, and the plaintiff need not in such suit asked for any further relief. It further postulates that no court shall make any such declaration where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so.
In the present case, defendants and more particularly defendant no.-1 have claimed that plaintiffs are not the sole tenants in the shop in question and they are not the owners of said businesses. However, the defendants have miserably failed to prove their aforesaid contentions/ claims.
Perusal of plaint shows that plaintiffs have filed the present suit for declaration, injunction as well as for rendition of accounts. Plaintiffs have also prayed for possession of shop in question. Since the plaintiffs have prayed for consequential reliefs also, the present suit is not hit/barred by Section 34 of The Specific Relief Act 1963.
In view of my findings with respect to issue no.- 1 & 7 and also in view of discussion made hereinabove, I am of the considered view that plaintiffs are entitled to the declaration as prayed for.
Accordingly, issue no.-13 is also decided in favour of plaintiffs and against defendants.
ISSUE NO.-(17):- To what relief, plaintiff is entitled?
In view of my findings on the aforesaid issues, suit filed by plaintiffs is hereby decreed in their favour and against defendants as under:-
(A) A decree for declaration is passed in favour of plaintiffs thereby declaring that plaintiffs are tenant in shop no. 3670, Chawri Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 89/90 Bazar, Delhi.
(B) A decree for declaration is also passed in favour of plaintiffs thereby declaring that plaintiffs are owners of businesses known as M/s Chhotey Lal Jaipal Mal and M/s Chhotey Lal Sharad Kumar carried in shop no. 3670, Chawri Bazar, Delhi.
( C) A decree of permanent injunction is also passed in favour of plaintiffs and against defendant no.-1 thereby restraining defendant no.-1 from disturbing the possession of the plaintiffs of said shop and also from interfering with their aforesaid businesses. (D) Plaintiffs are also entitled for possession of shop in question and the keys of shop in question seized by police from plaintiff no.-2 be returned to him after expiry of statutory period for filing an appeal against present judgment.
(E) No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities. Digitally signed by DEEPAK DEEPAK DABAS DABAS Date:
2019.08.30 16:19:26 +0530 Announced in the open Court (DEEPAK DABAS) Dated :27th August 2019 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Usha Gupta & Anr. Vs. Satya Sheel Gupta & Ors. Page No. 90/90