Gauhati High Court
M/S H.B. Enterprises vs On The Deat Of Niranjan Dutta His Legal ... on 20 February, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010028862017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO 41/2017
1:M/S H.B. ENTERPRISES
A PROPRIETORSHIP FIRM REPRESENTED BY ITS AUTHORISED
REPRESENTATIVE MR. KAMAKHYA SAHA, S/O LATE HARIDAS SAHA, R/O
WARD NO. 3, P.O. and P.S. KHARUPETIA, DIST. DARRANG, ASSAM.
VERSUS
1:ON THE DEAT OF NIRANJAN DUTTA HIS LEGAL HEIRS and 5 ORS
S/O LATE MANMOHAN DUTTA, R/O VILL. NAUKAGHAT, P.O. and P.S.
KHARUPETIA, DIST. DARRAGN, ASSAM.
1.1:SIPRA DUTTA
W/O LATE NIRANJAN DUTTA
R/O VILLAGE NAUKAGHAT
P/O AND P/S KHARUPETIA
DIST. DARRANG
ASSAM
1.2:SIMANTA DUTTA
S/O LATE NIRANJAN DUTTA
R/O VILLAGE NAUKAGHAT
P/O AND P/S KHARUPETIA
DIST. DARRANG
ASSAM
1.3:JAYANTA DUTTA
S/O LATE NIRANJAN DUTTA
R/O VILLAGE NAUKAGHAT
Page No.# 2/11
P/O AND P/S KHARUPETIA
DIST. DARRANG
ASSAM
1.4:SOMA DUTTA
D/O LATE NIRANJAN DUTTA
R/O VILLAGE NAUKAGHAT
P/O AND P/S KHARUPETIA
DIST. DARRANG
ASSAM
2:UTPAL DUTTA
S/O LATE MANMOHAN DUTTA
R/O VILL. NAUKAGHAT
P.O. and P.S. KHARUPETIA
DIST. DARRANG
ASSAM.
3:ASHUTO DUTTA
S/O LATE MANMOHAN DUTTA
R/O VILL. NAUKAGHAT
P.O. and P.S. KHARUPETIA
DIST. DARRANG
ASSAM.
4:ALOK KUMAR BANTHIA
S/O SRI SHANRAJ BANTHIA
R/O WARD NO. 3
HARUPETIA
P.O. and P.S. KHARUPETIA
DIST. DARRANG
ASSAM.
5:UTTAM KUMAR SAHA
S/O JNANENDRA MOHAN SAHA
R/O WARD NO. 3
P.O. and P.S. KHARUPETIA
DIST. DARRANG
ASSAM.
6:OMAR DEY
S/O LATE UPEN DEY
Page No.# 3/11
C/O MIHIR GHOSH
R/O WARD NO. 3
KHARUPETIA TOWN
P.O. and P.S. KHARUPETIA
DIST. DARRANG
ASSAM
Advocate for the Petitioner : MS.A BARUAH
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 20.02.2020 Heard Mr. D.P. Chaliha, the learned senior counsel, assisted by Ms. M. Ray, the learned counsel for the appellant and Mr. C. Goswami, the learned counsel for the respondents.
2) By this appeal under Order XLIII Rule 1(r) CPC, the appellant has assailed the order dated 06.05.2017, passed by the learned Civil Judge, Darrang, Mangaldoi in Misc. (J) Case No. 3/2017, thereby refusing to grant ad interim injunction. The appellant herein is the plaintiff in T.S. 1/2017.
3) The case of the appellant in the injunction application filed under Order XXXIX Rules 1 and 2 read with Section 151 CPC is that he has a proprietorship concern under the name and style of M/s. H.B. Enterprise, doing trading in electrical machinery, rice, oil mill, high voltage transformer repairing, repairing of electrical motor generator, etc. The respondents No.1, 2 and 3 are the owners of the suit land described in Schedule of the said injunction application and the appellant had approached them on 08.08.2010 to purchase the said land and on oral agreement to sell the suit land to the appellant at the agreed sale consideration of Rs.12.00 lakh. Out of the said sale consideration, the appellant paid a sum of Page No.# 4/11 Rs.11,95,000/- vide five cheques for a total sum of Rs.11.90 lakh and a cash amount of Rs.5,000/- and on 02.01.2012, the respondents No.1, 2 and 3 had put the appellant in actual physical possession of the suit land. Thus, only a balance sale consideration of Rs.5,000/- remained to be paid. It is projected that on getting possession of the suit land, the appellant had done earth-filling and constructed boundary wall and he had also constructed a workshop shed with tin roof, staff-room- cum- office, storage-shed for scrap equipments, useless articles, etc., testing room. In the injunction application, the appellant has given a description of goods stored in the said suit land and its value. As the respondents No.1, 2 an 3 were delaying execution of the sale deed, the appellant requested the respondents No. 4, 5 and 6, who were his business associates having knowledge of the transaction of payment of money and getting delivery of possession of the suit land, to arrange for a joint sitting for finding a solution. Accordingly, a meeting was held in Mangaldoi Youth Club on 02.08.2014, where the appellant was asked to sign on a paper showing distribution of shares of business instead of obtaining solution and signatures of the respondents No.1, 2 and 3 for obtaining land sale permission for registering sale deed and in the said meeting it was disclosed by the respondents No.4, 5 and 6 that the suit land was sold to them by executing Sale Deed No. 226 dated 15.11.2011. Accordingly, after making the necessary enquiry, the suit was filed for specific performance of contract, for cancellation of sale deed, for cancellation of mutation, for confirmation of possession, etc. Along with the said suit, the appellant had also filed a separate application for ad- interim injunction under Order XXXIX Rule 1 and 2 read with Section 151 CPC, which was registered and numbered as Misc. Case No. 3/2017.
4) The respondents No.1 to 6 had filed their joint written statement in the suit and joint written objection in the Misc. Case. While denying that the appellant had made payment of any money towards purchase of the suit land, it was projected that the appellant and the respondent Nos.4 and 6 and the wife of respondent No.5, namely, Smt. Anjana Saha had started partnership business of M/s. H.B. Enterprise since 2006 in the rented house of one Kamakhya Poddar, who had died about 5-6 years back at the monthly rent of Rs.3,000/- p.m., and the said business was then shifted to another site. It is projected that the respondent No.5 was working as teacher in a school and that his wife was not impleaded as Page No.# 5/11 one of the defendants in the suit. It is also projected that the respondents No.4 to 6 purchased the suit land from the respondents No.1 to 3 by registered sale deed No. 226 dated 15.11.2011, and on delivery of possession, the suit land was mutated in their name. It is further projected that the sum of Rs.11,95,000/- was paid out of the share of respondents No.4 and 6 and wife of respondent No.5 in the partnership business, and that the said business was run in the name of the appellant, but the appellant cunningly did not change the status of proprietorship business into partnership business. It was also projected that the respondents No.4 and 6 and wife of respondent No.5 were earlier deprived of their share in the partnership business by the appellant, who had misappropriated the business profit by showing exorbitant cost of construction made out of partnership funds. It is projected that as the appellant had not paid the profit of the partnership business, a meeting was convened by the respondents No.4 to 5 in Mangaldoi Youth Club, where the appellant and the respondents No.4, 5 and 6 had agreed to share the partnership in the following ratio - appellant- 50%, respondent No.4- 20%, wife of respondent No.5- 20% and respondent No.6- 10%. It is also projected that the respondent No.6 had obtained permission to construct tin shed from Bihudia Gaon Panchayat on 09.12.2016. Hence, the respondents prayed for dismissal of the suit and the Misc. Case.
5) The learned trial Court, by order dated 06.05.2017, impugned herein, held that as the registered sale deed exists in favour of the respondents, they would suffer irreparable loss if injunction was granted and, as such, it was held that the case of the appellant had no merit and the Misc. Case was dismissed.
6) The learned senior counsel for the appellant has submitted that the appellant had filed documents like his bank statement to show that he had transferred a sum of Rs.11.95 lakh to the respondents No.1, 2 and 3. It was the pleaded case of the appellant that the said money was paid towards sale consideration for the suit land. It is also submitted that whatever business relationship that the parties had, was agreed to be divided as per the terms of the Deed of Declaration dated 02.08.2014, which had nothing to do with prior payment made by the appellant to the respondents No.1, 2 and 3 towards sale consideration Page No.# 6/11 for the suit land, inasmuch as, the said Deed of Declaration did not contain any statement regarding payment of money by the appellant to the respondents No.1, 2 and 3. It is also submitted that the appellant is having a work-shop shed in the suit premises and, even if it is assumed for the sake of argument but not admitting anything to the contrary that the appellant was a trespasser, even then the respondents cannot evict the appellant without due process of law. It is also submitted that there are three suits pending between the parties, viz., (i) the present suit filed by the appellant, being T.S. No.1/2017; (ii) T.S. No. 33/2017 for dissolution of partnership business; and (iii) T.S. No.8/2018 for eviction of the appellant from the suit premises, which was filed subsequent to the filing of this appeal. Thus, it is submitted that it is not in dispute that the firm of the appellant is having a work-shop shed in the suit premises and that the appellant be protected from eviction during the pendency of the suit. In support of his submissions, the learned senior counsel for the appellant has relied on the case of Kishore Kumar Khaitan & Anr. Vs. Praveen Kumar Singh, (2006) 3 SCC 312 .
7) Per contra, the learned counsel for the respondents has submitted that the respondents No.4 to 6 are title holders of the suit land, as such, there cannot be any injunction against the true owners. In this regard, he relies on the case of Mahadeo Savlaram Shelke Vs. Pune Municipal Corporation, (1995) 3 SCC 33 . It is also submitted that the respondents No.4 and 6 and the wife of the respondent No.5 also have interest in the partnership business till it is dissolved in TS 33/2017, as such, they cannot be prevented from entering into the partnership business. The learned counsel for the respondents has admitted regarding the pendency of three suits amongst the parties, as indicated herein before
8) The LCR had been called for by this Court. However, instead of sending only the records relating to Misc. Case No.3/2017, the learned trial Court has also sent the records of the suit, for which the disposal of the suit has been stalled for no good reasons at all. Seen the records of suit as well as Misc. Case.
9) On a perusal of Deed of Declaration dated 02.08.2014, it appears that the Page No.# 7/11 four parties therein are (i) appellant, (ii) respondent No.4, (iii) Anjana Saha, wife of respondent No.5, and (iv) respondent No.6. As per the said declaration, the parties thereto had relinquished their joint business and that some of the items mentioned therein was agreed to be shared between them as follows - (i) appellant- 50%, (ii) respondent No.4- 20%, (iii) wife of respondent No.5- 20%, and (iv) respondent No.6- 10%.
10) The learned counsel for the respondents could not show any clause contained in the said Deed of Declaration dated 02.08.2014 to the effect that the money paid by the appellant to the respondents No.1, 2 and 3 was made on behalf of the respondents No.4, wife of respondent No.5 and respondent No. 6 against their respective share of profit. Moreover, in the said Deed of Declaration dated 02.08.2014, there is no statement that when the joint business had commenced.
11) It is further seen that while the appellant is claiming that the sale consideration for the suit land was Rs.12.00 lakh and that after paying a sum of Rs.11.95 lakh, the appellant was put into possession of the suit land on 02.01.2012. However, by then the respondents No.1, 2 and 3 had sold the suit land to the respondents No.4, 5 and 6 vide Sale Deed No. 226 dated 15.11.2011 at a sale consideration of Rs.1.00 lakh only. Thus, on 02.01.2012, the respondents No.1, 2 and 3 did not have any right, title and interest to put the appellant into possession of the suit land. Yet, both the parties have admitted some sort of arrangement amongst the appellant, respondent No.4 and 6 and the wife of respondent No.5 by relying on the Deed of Declaration dated 02.08.2014. Thus, not only the entry of the appellant into the suit land appears to be admitted by both sides, but the existence of business under the name and style of M/s. H.B. Enterprise are admitted by both sides, which appears to be first proprietorship concern, then as a joint business of the appellant, respondent No.4 and 6 and the wife of respondent No.5, which the said parties had relinquished Deed of Declaration dated 02.08.2014. The learned senior counsel for the appellant and the learned counsel for the respondents are ad idem on the point that after the present suit had been filed, two subsequent suits between the parties are sub judice, being
(i) TS No. 33/2017 for dissolution of the firm, and (ii) TS No. 8/2018 for eviction of the Page No.# 8/11 appellant from the suit premises, as such, the preponderance of probability is that the said firm under the name and style of M/s. H.B. Enterprise is now being carried on as a proprietorial concern from the suit land.
12) Therefore, notwithstanding that the respondents No.4, 5 and 6 are stated to be the title- holders in respect of the suit land. From the pleadings on record, there appears to be no dispute between the appellant and the respondents that the appellant had paid money to the respondents No.1 to 3 which formed the sale consideration for sale of the suit land by the said respondents No.1 to 3 in favour of the respondents No.4 to 6, as such, only trial can unfold the truth if the appellant had paid the share of profit to the respondents No.4, 6 and the wife of respondent No.5, or if the transfer of money to the respondents No.1, 2 and 3 was towards sale consideration for the purchase of land by the petitioner.
13) Thus, once the respondents had admitted that the appellant was inducted on the suit land, the Court is of the considered opinion that the appellant has been able to establish the foundation for the possession claimed by him. Thus, there exists a prima facie case for trial.
14) In the case of Mahadeo Savlaram Shelke (supra), it has been held that there cannot be an injunction against the true owner at the instance of persons in unlawful possession. As indicated herein before, it is the admitted case of the parties that the appellant is in possession of the suit land, as such, at this stage, it cannot be said if the possession of the suit land by the appellant is unlawful possession. Therefore, if the entry of the appellant in the suit land is lawful, there appears to be balance of convenience in favour of the appellant and in favour of grant of ad interim injunction as prayed for as the appellant cannot be evicted without due process of law, for which the learned counsel for the respondents has admitted that the respondents No.4, 5 and 6 have already instituted another suit subsequently for eviction of the appellant from the suit land. Accordingly, on facts, the present case is distinguishable, as such, the said cited case of Mahadeo Savlaram Shelke Page No.# 9/11 (supra) does not help the respondents.
15) The appellant has pleaded that he has constructed the work-shop shed, office, storage room, etc. on the suit land and in their written objection, the respondents have specifically pleaded in paragraph 18 that the appellant had shown exorbitant amount of expenditure in construction and other related works for the said firm, which amounts to a categorical admission by the respondents that the constructions on the suit land was done at the cost incurred by the appellant. Thus, if the appellant is evicted from the suit premises without due process of law or if there is any disturbance by the respondents No.4 to 6 in the business of the firm, the appellant alone shall suffer irreparable loss and injury, which cannot be computed or compensated in terms of money. It is also not in dispute that subsequent to the institution of this suit, the respondents No.4, 6 and the wife of respondent No.5 have instituted another suit for dissolution of the firm, namely, M/s. H.B. Enterprise and that as per the Deed of Dissolution dated 02.08.2014, the parties therein have relinquished their share in the firm, as such, preponderance of probability tilts in favour of the presumption that the appellant alone is operating the said firm.
16) Thus, in view of the discussions above, all the three golden principles of grant of injunction is found available in favour of the appellant. However, the learned trial Court had merely relied on the existence of the registered sale deed in favour of the respondents and held that that the appellant lacks prima facie case and that the balance of convenience was in favour of the respondents and not in favour of the appellant and that the respondents would suffer irreparable loss if injunction was granted and, as such, it was held that the case of the appellant had no merit and the Misc. Case was dismissed. However, the learned trial Court did not make any endeavour to ascertain if the possession of the appellant over the suit land was that of a trespasser or that the appellant could demonstrate that he had lawfully entered into the suit land and made construction on the suit land.
17) It is well settled by the Supreme Court of India in the case of Wander Limited Page No.# 10/11 Vs. Antox India Private Limited, (1990) 1 SCC 727 that in appeal, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. It was also held that an appeal against exercise of discretion is said to be an appeal on principle and the appellate court will not re- assess the material and seek to reach a conclusion different from the one reached by the learned court below if the one reached by that court was reasonably plausible on the material available on record and that the appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. However, in the present case in hand, from the discussions above, the Court has no hesitation to hold that the learned trial Court had ignored the settled principle of law relating to grant of injunction because in the present case in hand, as the appellant had entered lawfully into the suit premises at the instance of the respondents No.4, 5 and 6, and the respondents had admitted that the petitioner was carrying on business from the suit land, previously jointly with the respondents No.4, 6 and the wife of respondent No.5 and then singly after the said respondents had relinquished the firm by Deed of Declaration dated 02.08.2014, the appellant had become entitled to protection from being dispossessed from the suit premises without due process of law and for protection from interference in the business by the respondents. The learned trial Court had not exercised its discretion in accordance with well settled principles of law.
18) Therefore, this appeal deserves to be and is, accordingly, allowed, but without cost. The impugned order dated 06.05.2017, passed by the learned Civil Judge, Darrang, Mangaldoi in Misc. (J) Case No. 3/2017, thereby refusing to grant ad interim injunction. Resultantly, in terms of the prayer made in the Misc. Case No. 3/2017, the respondents No.4, 5 and 6 are restrained from evicting the appellant from the suit land till the Page No.# 11/11 disposal of the T.S. No.1/2017.
19) Let the records be expeditiously returned back. 20) Before parting with the records, it is made clear that the observations made
herein are for the purpose of deciding this appeal and, as such, the learned trial Court shall not be influenced with any observations made herein while deciding the suit on its own merit.
21) The parties are represented by their counsel. Hence, they are directed to appear before the learned trial Court on 24.03.2020 without any further notice of appearance and by producing a copy of this order, seek further instructions from the said learned Court in connection with the suit.
JUDGE Comparing Assistant