Delhi District Court
S. Inderpreet Singh Kohli vs S. Surjit Singh Kohli on 2 April, 2018
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET COURTS,
NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No. 11145/16
In the matter of :
1. S. Inderpreet Singh Kohli
S/o S. Surjit Singh Kohli,
R/o S301, Greater Kailash - I,
New Delhi. .....Plaintiff.
Vs.
1. S. Surjit Singh Kohli,
S/o Late S. Avtar Singh Kohli,
R/o S301, Greater Kailash - I,
New Delhi.
2. S. Surjit Singh Kohli HUF,
Through Karta S. Surjit Kohli,
R/o S301, Greater Kailash - I,
New Delhi.
3. S. Swaranjit Singh Kohli, HUF, through
S. Swaranjit Singh Kohli, Karta
S/o Late Sh. Avtar Singh Kohli,
R/o B11, Greater Kailash - I,
New Delhi.
4. S. Iqbal Singh Kohli, HUF, through
S. Iqbal Singh Kohli, Karta,
(Deceased Through LR's)
(i) Manjeet Singh Kohli
S/o Late S. Iqbal Singh Kohli
R/o R73, Greater KailashI, New Delhi.
(ii) Amarjeet Singh Kohli,
S/o Late S. Iqbal Singh Kohli,
R/o R73, Greater KailashI, New Delhi.
(iii) Mrs. Neelam Dhingra
D/o Late S. Iqbal Singh Kohli
R/o Farm no: 7, Mulberry Avenue,
DLF, Chattarpur Farms,
Mehrauli, New Delhi110074
(iv) Mrs. Gurmeet Kaur Nirh
D/o Late S. Iqbal Singh Kohli
R/o 5/6/9, Bhagwant Niwas,
Gurdwara Road, Usmanpur,
Aurangabad, A.P.
5. S. Jagmohan Singh Kohli, HUF, through
S. Jagmohan Singh Kohli, Karta
S/o Late S. Avtar Singh Kohli
R/o B11, Greater Kailash - I,
New Delhi.
6. Bhagat Industrial Corporation Ltd; 54,
Janpath, New Delhi through Sh. Ripu Daman
Bhagat.
7. Shri Girdhari Lal
S/o Shri Diwan Chand,
R/o Connaught Place,
New Delhi.
8. Shri Suraj Bhan Mehta,
S/o Shri Daryai Lal,
R/o D196, Defence Colony,
New Delhi.
9. Sh. Ashwani Mehta,
S/o Sh. Suraj Bhan Mehta,
R/o D196, Defence Colony,
New Delhi.
10. Shri Suraj Bhan Mehta Trustee Mehta Family Trust
through Sh. Suraj Bhan Mehta,
R/o D196, Defence Colony,
New Delhi.
11. Shri Ripu Daman Bhagat,
S/o Sh. Brij Bhushan Bhagat,
R/o 9, Link Road, Jangpura Extension,
New Delhi.
12. Sh. Manjit Singh Kohli,
S/o S. Iqbal Singh Kohli,
R/o R73, Greater Kailash - I,
New Delhi.
13. Smt. Harbinder Kaur,
W/o S. Iqbal Singh Kohli,
R/o R73, Greater Kailash - I,
New Delhi.
14. Mrs. Vibha Mehta,
W/o Ashwani Mehta,
R/o D196, Defence Colony,
New Delhi.
15. Shri Sat Pal Sardana,
S/o Sh. Dittu Ram,
R/o D196, Defence Colony,
New Delhi. ......Defendants.
Date of institution : 06.02.2002
Date on which order was reserved : 23.01.2018
Date of pronouncement of the order : 02.04.2018
JUDGMENT
Vide this judgment, I shall decide the present suit for declaration and rendition of accounts.
1. The suit of the plaintiff is for declaration to the effect that the Dissolution Deed dated 15.05.1981 is invalid, illegal, inoperative and as a consequence thereof the partnership firm under the name and style of M/s Hotel Marina continues to exist in law and the defendant no. 2 continues to be a partner in the said partnership firm and also for rendition of accounts of the partnership business under the name and style of M/s Hotel Marina from 15.05.1981 till date. The plaintiff is son of defendant no. 1. Defendant nos. 3, 4 and 5 as Kartas of their respective HUF's are brothers of defendant no. 1. The plaintiff contends that as defendant no. 1 is karta of defendant no. 2 thus plaintiff is coparcener of defendant no. 2. That the plaintiff became major i.e. 18 years of age on 20.12.1998 (date of birth 21.12.1980) and he will become 21 years of age on 20.12.2001. The family tree from the great grandfather late S. Rocha Singh is given as follows: Late S. Rocha Singh (Great grandfather) | S. Avtar Singh Kohli (grandfather)
1. S. Iqbal Singh Kohli (Defendant no. 4) (Uncle)
2. S. Tarlochan Singh Kohli (not impleaded) (Uncle)
3. S. Swaranjit Singh Kohli (Defendant no. 3) (Uncle)
4. S. Surjit Singh Kohli (Defendant no. 1) (father)
5. S. Jagmohan Singh Kohli (Defendant no. 5) (Uncle) It is contended that late S. Rocha Singh, great grandfather of the plaintiff with S. Avtar Singh, grandfather of the plaintiff started business in Pakistan and after migration in 1951 to India, S. Avtar Singh and his sons (namely defendants no. 1, 3 to 5) carried on business under the name and style of M/s R.S. Avtar Singh & Co. This firm prospered in due course of time and made different units at different places in India. Funds of all these units of business owned their nucleus to the ancestral funds and estate of late S. Rocha Singh. That defendant no. 2 through its karta defendant no. 1, M/s Swaranjit Singh Kohli HUF through its karta S. Swaranjit Singh defendant no. 3, M/s Jagmohan Singh Kohli HUF through its karta S. Jagmohan Singh Kohli defendant no. 5 and M/s Iqbal Singh Kohli HUF through its karta S. Iqbal Singh Kohli defendant no. 4 entered into partnership with other persons (namely defendants no. 6-16) vide partnership deed dated 01.04.1980 for the purposes of joining the business of 'Hotel Marina' as a going concern in partnership. The defendant no. 2 paid a sum of Rs. 7,700/- towards capital contribution of Rs. 49,500/- and a sum of Rs. 37,250/- towards goodwill amount of Rs. 2,42,000/- to the existing partners namely M/s Bhagat Industrial Corporation Ltd. / defendant no. 6. The ratio of sharing of profits and losses of the partnership business in favour of defendant no. 2 was fixed at 7 % and for other partners at different percentage. That clause 12 of the partnership deed dated 1.4.1980, provided that the premises of the Hotel Marina were held on lease as per registered lease deed dated 3.7.1941, modified from time to time. Suit for ejection was pending. M/s Bhagat Industrial Corporation Ltd. (defendant no. 6) and Mr. Girdhari Lal (defendant no. 7) had informed the other partners including defendant no. 2, M/s Surjit Singh Kohli HUF through its karta S. Surjit Singh Kohli (defendant no. 1) M/s Swaranjit Singh Kohli through its karta S. Swaranjit Singh (defendant no. 3), M/s Jagmohan Singh Kohli HUF through its karta S. Jagmohan Singh Kohli (defendant no. 5), and M/s Iqbal Singh Kohli through its karta S. Iqbal Singh Kohli (defendant no. 4), that they were trying to settle the matter with the landlords and that if any settlement is arrived at, the benefit thereof shall be availed by all the parties proportionately. That clause 16 of the partnership deed provided that in the event of dissolution of the firm, the value of goodwill, tenancy rights, furniture and fixtures and all the articles of the hotel premises shall be decided by mutual bid and the party paying the highest price shall be entitled to take over the business as a going concern. That defendant no. 1 and 3 to 5 were members of the HUF which provided the finances to M/s R.S. Avtar Singh & Co., a partnership firm of all the said defendants. It was in existence before the partition of the country in 1947. It shifted to Delhi in 1951 and started the business under the same name and style of M/s R.S. Avtar Singh & Co. at 1/1, Rohtak Road, Delhi. This property at Rohtak Road was acquired out of the claim passed in favour of late S. Avtar Singh, grandfather of the plaintiff. This firm with the finance provided by the Joint Hindu Undivided Family purchased number of properties in Delhi and Bombay and shifted its office at 19, Deepak, 13, Nehru Place, New Delhi. The firm amassed assets worth more than Rs. 200 Crores. All the properties such as R-73, Greater Kailash - I, New Delhi, B-11, Greater Kailash - I, New Delhi were purchased from the ancestral funds of the HUF by the said M/s R.S. Avtar Singh & Co. and from the funds received after the sale of the plot no. 1/1, Rohtak Road, Delhi. That due to flourishing business, the firm M/s R.S. Avtar Singh & CO. for its betterment and due administration, inducted some partners such as Shri S.B. Mehta, Smt. Leela Wanti and other defendants in its different units. The firm had units M/s R.S. Avtar & Co. (Perli Unit), M/s R.S. Avtar Singh & Co. (Delhi Unit) and M/s R.S. Avtar Singh & Co. (Bhusawal Unit). That in course of time, the defendant no. 1 became addicted to liquor, rather defendant no. 3 with malafide intentions and ulterior motive used to encourage his younger brother / defendant no. 1 to drink like a fish and soon, as expected, defendant no. 1 became hopelessly addicted to drinking. On 10.9.1980, the defendant no. 3 with the help of antisocial elements turned out defendant no. 1, his family members and threw out his goods/belongings from house no. R-73, Greater Kailash - I, New Delhi. The crest-fallen defendant no. 1 started residing in H. No. B-256, Greater Kailash - I, New Delhi as tenant. That the defendant no. 1 with defendant nos. 3 to 5 being co-parceners of M/s R.S. Avtar Singh & Co., a Joint Hindu Undivided Family Firm, created by late S. Avtar Singh Kohli, grandfather of plaintiff inherited all the estate and assets of the said HUF Firm and also the assets & estate of their father and their grandfather. The plaintiff being the son of defendant no. 1 and being co-parcener of M/s Avtar Singh & Co. HUF had share in the assets, properties and estate of that firm by operation of law. Later on, the defendant no. 3 manipulated the records by stating that M/s Avtar Singh & Co. was a partnership firm only. That the defendant no. 3 had evil designs on defendant no. 2 and wanted to grab his share because defendant no. 1 was semi-educated, rustic and addicted to drinking and hence weak and vulnerable. The defendant no. 3 took advantage of this. He obtained signatures of defendant no. 1 on blank papers in course of time, while entertaining him to drinks and showing off his so-called brotherly affection and love. That with passage of time, the defendant no. 1 realized the game plan of the defendant no. 3. He found that he was being deprived of the profits from the business of Hotel Marina & other units. He filed a suit for rendition of accounts, dissolution of partnership firm and for partition of the properties, bearing suit no. 710/1981 in the High Court of Delhi. During the pendency of the suit, the defendant no. 3 was ordered to supply photocopies of all documents relating to the business of the HUF. The defendant no. 1 was shocked to find that the partnership deed executed on 1.4.1980 stood dissolved vide dissolution deed dated 15.5.1981. He found that the defendant no. 3 had signed the said dissolution deed as attorney for defendant no. 1. All this was done without his knowledge, consent and communication to him. He was residing in Delhi throughout this period, hale, hearty and active. That the defendant no. 1 also found that the defendant no. 3, 4 and 5 had entered into another partnership deed dated 29.5.81 in which the name of the defendant nos. 1 and 2 were missing and the family members of the other defendants 3, 4 and 5 had been added as partners. Thus, the name of defendant no. 2 was deleted from the business of 'Hotel Marina' by this hat-trick, manipulated, master-minded & executed by defendant no. 3 with the help of defendants no. 4 and 5, and the share of 7 % of defendant no. 2 was taken over by defendant no. 3 in his favour. That there was no alternative for the defendant no. 1 except to file 'suit for declaration and for rendition of accounts' in the High Court of Delhi bearing suit no. 820/1982 titled as Surjit Singh Kohli vs. Swaranjit Singh Kohli & Ors. That this Hon'ble Court was pleased to grant ex-parte ad-interim order restraining the defendants no. 3-15 as prayed in the stay application vide order dated 28.5.1982 in I.A. No. 2252/82 in Suit No. 820/82. That in course of time, this Hon'ble Court was pleased to pass an order dated 25.6.82 in I.A. No. 2293/82 thereby, permitting the defendants in that suit to let out a portion of the property of Marnia Hotel to New Bank of India on monthly rent of Rs. 2,50,768/- subject to the condition that they will deposit 7 % of the rent amount in the bank in a fixed deposit for 6 months, which in course of time grew to Rs. 17, 84, 700/- and after accounting, the share of defendant no. 2 came to Rs. 1, 91, 217-85 for the period from October 1981 to June 1982. That the defendants no. 3, 4 and 5 filed written statement in that suit denying the allegations contained in the plaint. Thereafter, the defendants no. 3 to 5 realized that they were involved in a very difficult situation and were unable to get out of the mess. They had disobeyed the stay order and the defendant no. 1 filed contempt application. They coaxed the defendant no. 1 to enter into a compromise with them. They also created emotional family scene, with sister & mother wailing and weeping, bothers threatening to stop eating and virtually gheraoed the defendant no. 1 & his family members. They also promised that they would pay to him Rs. 2 Crores in return. The defendant no. 1 who was a compulsive drunkard and had sentimental attachment with the family succumbed to the pressure tactics of defendants no. 3, 4 & 5 and other lady members, and family well-wishers and agreed to withdraw the suit, without any inkling as to the dubious and evil designs and tactics of defendants no. 3, 4 and 5. That accordingly, on 25.3.83, the defendant no. 1 gave the following statement in the Hon'ble High Court in Suit No. 820/82 : -
"Parties have arrived at a settlement. I want permission to withdraw the present suit as well as the other suits and proceedings filed by me".
The Hon'ble High Court dismissed the suit as withdrawn vide order dated 25.3.83. That the defendants no. 3, 4 and 5 did not fulfill the promise made by them to defendant no. 1 for withdrawing the suit. The defendant no. 3 and other defendants did not pay any money to defendant no. 1. The defendant no. 1 was left alone, without any benefits despite having been so near to success in the suit. He became introvert and turned to religion. He started going to Gurudwara daily, where he used to remain for long hours and continues to do so even today. He was shocked by the deception and tricks of defendants no. 3, 4 and 5. That the plaintiff was brought up by defendant no. 1, who had very meager resources and was unable to provide decent life style to his family members. The plaintiff had wanted to study abroad but the defendant no. 1 was unable to send him abroad. On the other hand, the defendants no. 3 to 5 led lavish style of living and had too much money & resources for meeting any expenses, big or small. That the plaintiff became major i.e. 18 yrs of age on 20.12.1998 and he was told all this bitter family history by his mother. He requested defendant no. 1 to let him know the entire reality but defendant no. 1 refused to cooperate. He was in extreme tension and never opened his mouth on this subject. During this period of 3 years between 20.12.1998 till date, the plaintiff came to know a few more facts whenever defendant no. 1 was talking with the mother of the plaintiff or with his own brothers and he came to know that the defendant no. 3 to 5 had promised to defendant no. 1 that if he withdraws the suit, they will pay to him a sum of Rs. 2 Crores in 20 installments i.e. @ Rs. 10 Lakhs per annum, and that they will pay him sufficient money for taking a big house on rent and later on, help him buy a new house in his own name, and that the condition was that he must withdraw the suit without any condition. That the defendant no. 3 to 5 never fulfilled the promises made to defendant no. 1, as a result of which, he (defendant no. 1) became disillusioned, disgruntled and frustrated. He felt that he had committed a sin against his wife and children. That the plaintiff sought legal opinion and was advised that he has share in the estate and properties of M/s Avtar Singh and Co. HUF and also in the business of 'Hotel Marina', which was business under the partnership firm by various HUFs as described above, deriving their nucleus from the assets & estate of M/s R.S. Avtar Singh & Co. H.U.F. Firm. The plaintiff is entitled to the income and profits from the said hotel and accordingly he is filing this suit. That the plaintiff being the grandson of late Sardar Avtar Singh is entitled to his share in the assets and estate of M/s R.S. Avtar Singh, HUF Firm. As stated above, that the business units of the said HUF, including the business of Hotel Marina, the HUF of defendant no. 1, 3, 4 and 5 owed their funds to the nucleus of M/s R.S. Avtar Singh HUF and therefore, the plaintiff has a share and right in the profits / earnings of the said business establishments. That the defendant no. 1 as karta of defendant no. 2 owed its liquid capital source to the nucleus of M/s R.S. Avtar Singh & Co. HUF Firm, from which defendant no. 1 contributed Rs. 7,700/- towards capital and Rs. 37,250/- towards goodwill way back in 1980 for joining the business of Hotel Marina. There would be no reason and justification for him to agree for retirement of defendant no. 2 from the said business of Hotel Marina by the dissolution deed dated 15.5.81, after a gap of just 1 year & 2 months. That it is important to note that while executing the Dissolution Deed dated 15.5.81 thereby retiring the defendant no. 2 from the partnership business, the terms of the partnership deed dated 1.4.1980 were not taken into consideration. The defendant no. 3 served his own interest to his utmost advantage by taking to himself 7% profit sharing ratio. The outgoing partner (defendant no. 2) was allegedly given a cheque of Rs. 42,000/- dated 16.6.81, (stated by defendant no. 3 in his written statement) which was factually incorrect. The question is why should defendant no. 1 agree to the ouster or retirement of defendant no. 2 from the partnership by taking away a meagre sum of Rs. 42,000 (having already contributed a sum of Rs. 44,000/-). Secondly, defendant no. 1 had no right to agree to ouster of defendant no. 2 from the said business as plaintiff was already there as a minor co-parcener. That similarly, the defendant no. 3 took a peculiar defence in the said written statement that defendant no. 1 himself had wanted to sever all family ties for a sum of Rs. 45, 346/- vide Family Settlement Deed dated 23.8.80 and a Power of Attorney dated 23.8.80. That the defendant no. 3 could not and did not explain as to why the partnership deed dated 1.4.1980 was signed by all the partners including defendant no. 1 on behalf of defendant no. 2 but why the dissolution deed dated 15.5.1981 was not signed by him and why by defendant no. 3 as his attorney. Also, why the defendant no. 2 was made to retire by this dissolution deed for unspecified amount and give up tenancy rights, share in goodwill, right of profit etc. That at the time of defendant no. 1 withdrawing the suit no. 820/1982 and thereafter the said defendants no. 3 to 5 did not make payment of the promised amount to him. It is relevant to mention that the Hotel Marina had earned rental income of Rs. 17,84,700/- from October 1981 to June 1982 and after deducting 25% thereof, the defendant no. 1 was entitled to Rs. 1,91,217/- i.e. 7% of balance amount of Rs. 13,38,525/-. The defendant no. 1 had filed an affidavit dated 23.8.1982 in the above stated suit. There is no mention on this aspect also in the suit and there is complete silence by all the concerned parties regarding the assets/estates of M/s R.S. Avtar Singh & Co. HUF, regarding the disposal of the properties of defendant no. 2, as to why the said suit was withdrawn so secretly and collusively and regarding the disposal of the assets/profits/share of defendant no. 2. That the plaintiff is advised to limit his claim to the current issue of his legal rights arising from the terms of the partnership deed dated 1.4.1980 and then to the dissolution deed dated 15.5.81 resulting in the retirement of the defendant no. 2 in ugly haste with sinister consequences for the plaintiff and other family members of the defendant no. 1 and from the withdrawal of suit no. 820/1982 on 25.3.1983 in the most bizarre manner resulting in desperate financial resources, legal consequences for the plaintiff, defendant no. 1 and his other family members. That the plaintiff was minor as on 25.3.1983 being born on 21.12.1980 and became aware of these facts after he became major. He went on probing these facts from defendant no. 1 and other family members. Since, there was not much assistance from defendant no. 1, hence this suit for declaration. The plaintiff understands that defendant no. 1 is under undue influence of defendant no. 3. Similarly, other defendants no. 4 and 5 are also under undue influence of defendant no. 3 as he has the practice of obtaining General Power of Attorney from both of them (as from the defendant no. 1) which he uses to exploit others. That the partnership firm of defendants no. 3 to 15 under the name and style of Hotel Marina has acquired/ built new hotels namely Hotel Marina at Ferozpur Road, Ludhiana and Hotel Marina (Holiday Inn.) Sanjay Palace, Commercial Complex, M.G. Road, Agra. These hotels have been built from the profits from this business of Hotel Marina. That the plaintiff is entitled to decree of declaration to the effect that dissolution deed executed on 15.5.81 is invalid, inoperative and of no legal consequence and accordingly, the partnership deed dated 1.4.1980 is fully operational, meaning thereby that defendant no. 2 continues to be a partner of the partnership firm M/s Hotel Marina and is entitled to the profit as per the profit sharing ratio of 7% w.e.f. 16.5.81 till date and the plaintiff being a co-parcener in the defendant no. 2 is entitled to his equal share in the profits earned by the said defendant no. 2 from the partnership business of Hotel Marina. The plaintiff is also entitled to rendition of accounts from the said partnership firm M/s Hotel Marina from 16.5.81 till date. That the cause of action arose in favour of the plaintiff on 1.4.1980 when the defendant no. 2 joined the partnership business of 'Hotel Marina' and on 25.3.83, when defendant no. 1 withdraw the suit no. 820/82. The cause of action again arose on 20.12.98 when the plaintiff became major i.e. 18 years of age. That the properties in the suit are situated in Delhi and the parties to this suit reside and work for gain in Delhi. Hence, this Hon'ble Court has jurisdiction to entertain and try this suit. That the value of the suit for the purpose of Court fee / jurisdiction is as under:-
i) four Court Fee
for declaration Rs. 200/-
ii) for the purpose of
Rendition of Accounts
for jurisdiction: Rs. 200/-
iii) For the purpose of rendition
of accounts as required under
Order 7 Rule 2 CPC Rs. 1 Crore approx.
Total 1,00,00,400/- approx.
The Court fee of Rs. 40/- is affixed.
The exact amount of profits cannot be ascertained at this stage and whatever amount is found due after the decree for rendition of accounts is passed and local commissioner submits report, the plaintiff undertakes to pay the Court fee on the amount which is so determined.
2. Defendant no: 3 has filed written statement raising the preliminary objection that the present suit of the plaintiff is wholly misconceived and untenable both in the facts of the present case. That the suit of the plaintiff is a collusive suit having been filed in collusion between the plaintiff and defendant no: 1 and 2. That the suit has been filed malafide for oblique purposes. That the defendant no: 1 and 2 having settled all their claims / dues from and against the Kohli Family, including their share in the firm Hotel Marina and having all along enjoyed all the fruits, benefits and advantages of the Family Settlement dated 23.08.1980 are now again, trying to partly reopne the same, after a period of more than 22 years, by abusing / misusing the process of law. That the suit of the plaintiff is bad for nonjoinder of necessary parties. That there are other legal heirs namely Mrs. Chandrika Walia, w/o Mr. Ravinder Singh Walia and Miss Tanya Kohli, Mr. Surjit Singh Kohli as well as S. Surjit Singh Kohli (HUF), the defendant no: 2 herein. That to effectively and conclusively decide and adjudicagte upon the controversies, it is imperative that the other legal heris of defendant no: 1 and 2 be also brought on record. The plaintiff has malafide not made them a partly to the present proceedings so as to subsequently use them for yet another round for litigation. That the suit of the plaintiff has not been properly valued for the purposes of court fee. That the requisite amount of Court fee has also not been paid. That the suit therefore needs to be dismissed forthwith. That the plaint has not been properly verified in accordance with the provisions of order VI Rule 15 of Code of Civil Procedure, 1908. That there is therefore, no proper plaint before this Court warranting any consideration at all. That the plaintiff is guilty of suppressio vari and suggestio falsi. On merits it is contended that the defendant no: 3, 4 and 5 are not private individual but HUF's. That they can not be termed as brother's of defendant no: 1. That the family tree does not depict the true and complete picture of the family of late S. Rocha Singh. That there other members / heirs / lineal descendants which have not been disclosed by the plaintiff. That all the legal heris of S. Avtar Singh ought to have been impleaded as party defendant to the present proceedings. That the suit is bad for nonjoinder of necessary and proper parties. It is denied that S. Avtar Singh and his sons carried on business under the name and style of M/s R.S. Avtar Singh and Co. It is stated that defendants no: 3, 4 and 5 are not private individuals but HUFs, having separate legal entity, juristic personality and existence. That they can not be termed as sons of late S. Avtar Singh Kohli. Further more, the said HUFs came into being only sometime in the year 1980
81. Hence, the question of their doing business with late S. Avtar Singh Kohli in the year 1951, or thereabout does not arise. That the pleas and contentions of the plaintiff are wholly erroneous and incorrect. Late S. Avtar singh was never a partner of the firm of M/s R.S. Avtar Singh & Co. That the firm M/s R.S. Avtar Singh & co. was constituted and came into existence vide a partnership deed dated May 06, 1975. S. Avtar Singh, the grand father of the plaintiff, had died as early as in December, 1968. Consequently, the question of S. Avtar Singh being a partner of the firm M/s R.S. Avtar Singh & co. in the year 1975, does not arise. That the said firm was dissolved on November, 30, 1976 and a new firm of the same name, i.e. M/s R.S. Avtar Singh & Co. was constituted on December 06, 1975. That the said firm was also dissolved by a Deed dated 04th,June, 1980 and yet another firm, in the same name and style, was constituted by a fresh partnership deed dated 04 th June 1980. That the defendant nos: 1 and 2 are / were not a partner to the said Deed dated 04 th June, 1980. That the firm M/s R.S. Avtar singh and co. has nothing to do with the firm in respect of which relief is sought in the present suit. That the averments and allegations in respect of the firm M/s R.S. Avtar Singh & co. are wholly irrelevant and do not concern the suit in question. The execution of a partnership deed dated April 1, 1980 is admitted. It is contended that the said partnership had only the management rights in respect of hotel Marina. That the said partnership deed was executed for the purposes of Management of hotel Marina in copartnership and it comprises of following partners:
1. Bhagat Industrial Corporation Ltd.
2. Mr. Girdhari Lal.
3. M/s Iqbal Singh Kohli, HUF
4. M/s Swarnjeet Singh Kohli, HUF
5. M/s Surjeet Singh Kohli, HUF
6. Jagmohan Singh Kohli, HUF
7. Mr. Suraj Bhan Mehta
8. Mr. Ashwini Mehta
10. M/s Mehta Family Trust It is submitted that defendants no: 2 to 5 HUF's were formed at that time only. That the said defendants, accordingly, came into existence only in the year 1980 for the purposes of running the Management of hotel Marina in partnership. Apart from the above persons / entities, there were no other partners to the said partnership Deed dated 01.04.1980. That the defendants no: 11, 12, 13, 14 and 15 were not the partners in the partnership Deed dated 01.04.1980. That there is no defendant no: 16 in the memo of parties / plaint. That respective shares of the partners in the profits and losses of the partnership firm as also the contributions made by the partners towards capital and goodwill etc. are all matter of records and duly reflected in the partnership deed dated 01.04.1980. That the pleas, submissions and contentions of the plaintiff, contrary thereto, are strongly refuted. That the clause 2 of the partnership Deed dated 01.04.1980 is a matter of record. It is stated that clause 12 also provided that all expenses and dues for settlement shall be borne by all the partners as per their proportionate / ratio of sharing the profits / losses. That the plaintiff has very conveniently over looked the same and has malafide made no mention thereof. That due effect was given to the said provisions of the partnership deed. That clause 16 of the partnership Deed dated 01.04.1980, is also a matter of record. That due effect was given to the said provisions of the partnership deed. That before arising of the suitable occasion for giving effect to the said clause 16 of the partnership deed, the defendant no: 2 had already entered into a written family settlement dated August 23, 1980 by virtue whereof, the said defendant had severed all its connections with the aforesaid partnership of M/s Hotel Marina w.e.f. 23.08.1980 for a specified agreed amount. That the partnership deed dated 01.04.1980 was dissolved much later i.e. only in May, 1981. The occasion for giving effect to clauses 12 and 16 of the said Deed arose much after the defendant no: 2 having severed all his connections from the partnership of M/s Hotel Marina. Accordingly, the defendant no: 2 had no reason to raise any grievance in this regard. That the plaintiff claiming under defendant no: 2 has no right or cause of action to raise any grievance in this regard and / or to this effect. That at the relevant time due effect was given to all the clauses of the said deed. It is denied that the said alleged HUF provided the finances to M/s R.S. Avtar Singh and co and that the defendant no: 2 to 5 were partners of M/s R.S. Avtar Singh and co. even prior to the partition to the country in the year 1947. That the plaintiff has placed no such alleged partnership deed on records. That M/s R. S. Avtar Singh and Co. was a partnership firm. That it was never a HUF firm. That there were many members of the family, hereinafter referred to as the Kohli Family, who were not partners of M/s R.S. Avtar Singh and co. That the firm M/s R.S. Avtar Singh and co. had several other partners who were not even members of the Kohli Family. It is denied that M/s R.S. Avtar Singh and co was in existence before the partition of the country or that it shifted to Delhi after 1951 as alleged. It is contended that the firm in the name and style of M/s R.S. Avtar Singh and co. was constituted by a partnership deed dated 06.05.1975. That the firm was dissolved by a deed dated 30.11.1976. That another firm, in the same name and style, was constituted by another partnership deed dated 06.12.1976, with effect from 30.11.1976. That firm was also dissolved by a deed dated 04.06.1980 and yet another firm, in the name and style of M/s R.S. Avtar Singh and co. was constituted by a fresh partnerhsip deed dated 04 th, June, 1980. It is denied that the firm M/s R.S. Avtar Singh and co. was in existence before the partition of the country in the year 1947 or that it shifted to Delhi in the year 1951 and started the business under the name and style of M/s R.S. Avtar Singh and co. at 1/1, Rohtak Road, Delhi. It is denied that any HUF provided any finance to the firm M/s R.S. Avtar Singh and co. it is submitted that the property at 1/1, Rohtak Road, Delhi was never the property of M/s R.S. Avtar Singh and co. It is contended that the said built up property was in the joint name of Smt Sant Kaur, w/o late S. Avtar Singh and one S. Surinder Singh Bindra. Both the said coowners had 50% share therein. That the properties at R73, Greater KailashI, New Delhi and B11, Greater KailashI, New Delhi are not properties of M/s R.S. Avtar Singh and co. nor were they acquired and / or constructed with the funds of the firm M/s R.S. Avtar Singh and co. That the property at B11, Greater Kailash is a self acquired property of Mrs. Gurtej Kohli, wife of S. S. Kohli and Smt Sant Kaur, w/o late S. Avtar Singh Kohli. That it was constructed with their own funds and had been duly reflected in the Wealth Tax Returns of Mrs. Gutrej Kohli. That the property R73, Greater Kailash is also a self acquired property in the name of Smt Harbinder Kaur and S. Swaranjit Singh Kohli, S/o Late Avtar Singh Kohli. It is denied that the said properties were purchased from the ancestral funds of the alleged unnamed HUF or by the firm M/s R.S. Avtar Singh and co. or from the funds received after the sale of the plot no: 1/1, Rohtak Road, Delhi. That Rohtak Road property was sold much after the purchase of B11, Greater KailashI, New Delhi. It is submitted that Smt Sant Kaur had by her Will bequeathed her 50% share in property no: B11, Greater KailashI to Mr. Jagmohan Singh Kohli. That the defendant no: 1 accepted the said Will. That the said Will was duly probated in the High Court of Delhi and the said property (portion) devolved upon Mr. J.S. Kohli who is enjoying the same. That the plaintiff by making ambiguous, unspecified and unsubstantiated allegations and averments is resorting to fishing and roving enquiry to create some semblance of a case in his favour. It is alleged that the plaintiff is purposely intermixing two distinct partnerships, having different partners and constitution, only with a view to create unwarranted confusion and malady. That no relief whatsoever has been sought by the plaintiff in respect of the working, assets etc, of M/s R.S. Avtar Singh and co. Hence, any reference to the same besides being incorrect, is also wholly unwarranted and unnecessary. It is denied that the firm M/s R.S. Avtar Singh and co. had different units. It is contended That all the said so called units were different partnership firms having different partners, though some of the partners were common to all the firms. That each of the said firms had different business and was separately assessed to income tax. It is submitted that the defendant no: 3 had no role in defendant no: 1 developing drinking habit. That as a younger member of the family, the said defendant was showered with all the love and affection by the defendant no: 3 as well as other elder members of the family. The vices he developed were his own misdoings, for which he himself is/was to be blamed in as much as though younger in the family, he was not a minor or imbecile so as not to be able to understand his own well being. It is denied that on 10.09.1980, the answering defendant allegedly with the help of certain anti social elements turned out the defendant no: 1 and his family members from house no: R 73, Greater KailashI, New Delhi and / or threw out his goods / belongings from the said house. It is submitted that the defendant no: 1 wanted to start his own business for which he had asked for separation and after due deliberations and discussions amongst the elders and the members of the family, including the said defendant, a settlement could be arrived at amongst them which was reduced into writing and termed as a Deed of Family Settlement. The same was signed and executed on August 23, 1980. The wife of defendant no: 1, who is an educated and qualified lady was also a signatory to the said Family Settlement. The defendant no: 1 moved out of the house no: R73, Greater Kailashh, New Delhi, only in terms of and pursuant to the said Family Settlement. The said Family Settlement was given due effect and was duly acted upon by all concerned. That the moving out of defendant no: 1 and his family from R73, Greater Kailash to B246, Greater Kailash, New Delhi was not at all a sudden or a well planned act, but was having the consent and approval of all other members of Kohli Family, to give effect to the Family Settlement, otherwise how could the said defendant get a ready tenanted accommodation on the same day itself and if the said defendant, his family and belongings were forcibly thrown out of the house no: R73, as being alleged, then why no police complaint was filed by him against the answering defendant. That the various partners in which the defendant no: 1 and / or his wife had a trading interest along with some of the other dissolved on 4th June, 1980 with effect from 31st March, 1980. Reference to those transactions was also made in the Family Settlement recorded on 23 rd, August, 1980. Thereafter, the defendant no: 1 looked for and got on hire house no: B256, Greater KailashI, New Delhi and he himself shifted with bag and baggage, to live in that house. Not only did the defendant no: 1 shifted his house, but he also got a shop in 'M' block in Greater KailashI, New Delhi after paying hefty premium and started carrying on his own separate business in the name and style of 'Gifts Galore'. It is denied that M/s R.S. Avtar Singh & Co. was a joint Hindu Family firm or that it was created by late S. Avtar Singh Kohli. It is denied that the firm M/s R.S. Avtar Singh & Co. is / was a Joint Hindu Undivided Family firm created by late S. Avtar Singh Kohli, the grand father of the plaintiff and that there is / was any firm or concern in the name of M/s R.S. Avtar Singh & Co. (HUF). It is denied that defendant no: 3 to 5 were / are coparceners of the firm M/s R.S. Avtar Singh & Co. HUF. It is denied that there is / was any partnership firm in the name and style of M/s R.S. Avtar Singh & Co. or that there was any HUF in the name and style of M/s R.S. Avtar Singh & Co. HUF or that answering defendant no: 3 manipulated the records by stating that M/s Avtar Singh & Co. was a partnership firm only. It is contended that partnership firm dealing with Marina Hotel is altogether different from and has nothing to do with the firm M/s R.S. Avtar Singh and Co. That a family settlement had taken place amongst various members of Kohli family, which was reduced into writing on August 23, 1980. That reference to the partnership firm relating to Marina Hotel was also specifically made in that Family Settlement. That the defendant no: 1 in his capacity as Karta of M/s Surjit Singh Kohli (HUF), had desired to severe his connections against payment of a specified sum of money. That he assured the other members of the Kohli Family who were also partners in the firm, of noninterference is the said business. That the defendant no: 1 executed and gave an irrevocable power of attorney to S. Swaranjit Singh Kohli. That power of attorney was also executed on 23rd, August, 1980. That the agreed / settled amount of Rs. 42,000/ was paid to defendant no: 1 by a cheque no: 930537 dated 16 th June 1981 drawn on the New Bank of India in favour of M/s S. Surjit Singh Kohli (HUF) in consideration of their severing connections with the firm. That the defendant no: 1 deposited that cheque in the saving bank accounts of M/s Surjit Singh Kohli (HUF) in the New Bank of India on or about 17th June 1981 and got is duly encashed. That in consideration of the specified agreed / settled amount to be paid and actually paid and various other properties falling in his share under the said Family Settlement, defendant no: 1 as Karta of the defendant no: 2 had thus severed all his connections from the said partnership of M/s Hotel Marina, which, at that time, was having only the management rights of Marina Hotel. That on the same day, namely on August 23, 1980, defendant no: 1 in his capacity as Karta of defendant no: 2 executed a General Power of Attorney in favor of S. Swaranjit Singh Kohli authorising him to, represent the said defendant in the firm M/s Marina Hotel in connection with its business and all affairs and also to sign Dissolution Deed of the firm or any winding up papers or abandonment of the Family's share or closure thereof. That the defendant no: 1 had full knowledge of the same and he was kept absolutely abreast from time to time. That the family settlement was fully acted upon and given the due effect. That the deed of family settlement was never challanged and or questioned by defendant no: 1 or any other person whomsoever at any stage whatsoever. That the said defendants had received and enjoyed all the pecuniary advantages and benefits accruing to it / them under the family settlement. That it is, therefore, denied that the dissolution of the partnership firm was without the knowledge, consent or communication to the defendant no: 1. That the present suit has been filed for oblique purposes. That the defendant no: 1 is using his son, the plaintiff herein, as a front to achieve his nefarious designs. That in suit no: 710 of 1981, filed by defendant no: 1 herein, the hon'ble Court of Delhi had vide its order dated 30.11.1982, while dismissing IA No:
2505/81 and 2504/81 filed by defendant no: 1 herein, held that there was no proof or evidence of HUF business. That there was no prima facie case made out by the plaintiff (defendant no: 1), and had subsequently withdrawn the said suit, and after about two decades, the defendant no: 1 is again racking up the same issue in the form of the present suit being filed in the name of his son. It is denied that there was any alleged 'game plan' of the answering defendant no: 3 against defendant no: 1 or that defendant no: 1 was ever deprived of any lawful entitlement for a share in the profits from the business of M/s Hotel Marina. It is denied that M/s R.S. Avtar Singh and Co. was a partnership firm. It is denied that there were many members of the Kohli Family who were not partners of M/s R.S. Avtar Singh and Co and who were not even members of the Kohli Family. That filing of suit no: 710 of 1981 by the defendant no: 1 before this court is not disputed. That the said suit was absolutely false, misconceived, frivolous and based on fictitious grounds and pleas. That this Court vide its order dated November 30, 1982 was pleased to dismiss the application for the plaintiff for interim reliefs. No restraint orders were passed and the plaintiffs request for appointment of Receiver was also declined. Since the plaintiff in the said suit could not secure any relief, it subsequently withdrew the said suit. It is pertinent to note that though the plaintiff had mentioned about the filing of the suit no 710 of 1981 by defendant no: 1 before this court, the said plaintiff has purposely not disclosed the proceeding that took place therein and / or the fate thereof. It is denied that the name of theh defendant no: 2 was deleted from the partnership of M/s hotel Marina, by defendant no: 3, 4 and 5 or that 7% share of defendant no: 2 in the said firm was taken over by the answering defendant no: 3. That the 7% share of defendant no: 2 in the said firm was taken over by Smt Harbinder Kaur, wife of Iqbal Singh Kohli who also paid the Goodwill amount of Rs. 42,000/ to M/s S. Surjit Singh Kohli. That the said amount was paid by the cheque. That Mr. Girdhari Lal having 10% share was taken over by Mr. R.D. Bhagat and S. Swaranjit Singh Kohli. Further the 7% share of M/s S, Iqbal Singh Kohli was taken over by S. Manjit Singh Kohli, son of S. Iqbal Singh Kohli (3%) and Mehta's (4%). Further more 2% share of Mehta's was taken over / acquired over by S. Swaranjit Singh Kohli. Thus the share of S. Swaranjit Singh Kohi became 14% (7% +5% +2%). It is therefore absolutely incorrect for the plaintiff to state, allege and contend that the answering defendant no: 3 had taken over the 7% share of defendant no: 2. That the suit no: 820 of 1982 before this court by defendant no: 1 is a matter of record, however, even the said suit was absolutely misconceived, ill advised and untenble. That the contents and contentions thereof are strongly refuted and denied by the answering defendant. That S. Swaranjit Singh Kohli who was impleaded as defendant in his personal capacity as also the other defendants, had filed their replies and written statements to the said suit of the defendant no: 1 herein bringing on record the true and correct facts of the case. Confronted with harsh factual realities staring at the face of the plaintiff, the defendant no: 1 realized the meritlessness of his case and withdrew the same on 25.03.1983. That the order dated May 28, 1982 as passed by this court in suit no: 820 of 1982 is matter of record. That the defendant no: 1 was able to obtain exparte adinterim order by misleading and misrepresenting before this court. However, in due course the said suit was withdrawn. In reply to para 16 of the plaint it is submitted that the order dated june 25, 1982 as passed by the court is suit no: 820 of 1982 is a matter of record. That the said order was fully complied with at the relevant point of time. However, in due course the said suit was withdrawn. Subsequently, upon an application filed by the defendants in the said suit, including S. Swaranjit Singh Kohli of the answering defendant no: 3, the amount deposited in the court, pursuant to the aforesaid order datd 25.06.1982 was directed to be released to the applicants/ defendants. It is denied that the answering defendant no: 3 had disobeyed any order of this court. That the contempt petition, filed in suit no: 820 of 1982 by the defendant no: 1herein, is also the matter of record. That even the said petition was wholly misconceived and beref of any merits. That in its order dated 25.06.1982, the court has clearly indicated that there was no contempt of any order of the court. It is denied that defendant no: 1 was coaxed by the answering defendant no: 3 to enter into a compromise with them or that answering defendant no: 3 created any emotional family scenes with sisters and mothers and weeping brothers threatening to stop eating, or that the defendant no: 1 herein and his family was gheraoed. It is denied that the answering defendant no: 3 alongwith defendant no: 4 and 5 herein promised to pay Rs. 2 crores to defendant no: 1 or that defendant no: 1succumbed to the alleged pressure of the answering defendant no: 3 and defendant no: 4 and 5 herein, and agreed to withdraw the suit or that there was any evil design or tactics of defendant no: 3 and / or defendant no: 4 and 5. That answering defendant no: 3 gave no promises of any nature whatsoever, much less as alleged. In fact looking into falsity of its own case, the defendant no: 1 had moved an application under order XXIII rule 1 of the code of civil procedure, 1908 for withdrawal of the suit. Neither in the application nor in the affidaavit filed in support thereof, any averment as to the alleged compromise, settlement and promise etc is referred to. That in case there was any such settlement, it ought to have been recorded in the court proceedings. It is not wholly uncommon for the parties to settle the matter on mutually acceptable / agreed terms which are reduced into writing and a joint application is filed in the court for recording of agreement between the parties and disposal of the case / suit in terms thereof. That the code of civil procedure, 1908 expressly provides for such eventualities. Admittedly, nothing of the sort had been done in the present case. That this by itself falsifies the baseless and frivolous contentions and arguments being advanced by the plaintiff as to the alleged assurances / promises etc and withdrawal of the suit by defendant no: 1 in view of such alleged promises of the answering defendant no: 3 and / or defendant no: 4 and 5. Further it is rather intriguing to note that in case there were any such promises made, which the answering defendant no: 3 did not fulfill then why no further legal action was taken / initiated by the defendant no: 1. It is denied that the answering defendant no: 3 made any promise to the defendant no: 1 for withdrawal of Suit no: 820 of 1982 by the said defendant or that the answering defendant did not fulfill its any such alleged promise or that the answering defendant no: 3 was to pay any money to defendant no: 1 which it did not pay. No such amount was payable and as such not paid. It is denied that defendant no: 1 became introvert or turned to religion. That the allegations and averments are mischievous, motivated and baseless. That the same does not contain even an iotta of truth in it. That defendant no: 1, in due course of time constructed a three storeyed luxurius house at S301, Greater Kailash1, New Delhi, which is fully furnished and is fitted with all the amenities of life that a person can wish for. He had been running a gift shop under the name and style of "Gifts Galore" which was later on converted to a restaurant under the name and style of "Lees Garden" which is a Chinese restaurant with Bar License. He has regularly been filing his income tax and wealth tax returns, and had been dealing and personally attending to a large number of court cases particularly the case with regard to the change of misuse in respect of the property wherefrom he had been running his restaurant. It is, therefore, wholly wrong and incorrect for the plaintiff to state the defendant no: 1 had become introvert or turned to religion. It is emphatically denied that the defendant no: 1 had very meager resources or was unable to provide decent life style to his family. The plaintiff is being ungrateful to his parents as well as the Almighty. The the defendant no: 1 had all funds and resources available to bring up his family in a decent manner. They have the best of the education and attention. That the elder daughter of defendant no:
1 did her schooling from "the Convent of Jesus and Marry", New Delhi, which is one of the best schools of the country. Later on she did her graduation from Jesus & Mary College, which is also one of the best colleges in India. She is married to Mr. Ravinder Walia and is now permanently settled in USA. That the second daughter of the defendant no: 1 also did her graduation from Delhi University. She is now pursuing her higher studies in Australia. That the son of the defendant no: 1 did his schooling form the St. Columbas Schoool, New Delhi, which is one of the best schools of the country. That after doing his graduation from Delhi University, he is now pursuing his higher studies in Australia. There of course, is no end to a man's greed. Further, comparisons between two families in the manner as being suggested by the plaintiff is wholly unwarranted and in fact a meaningless exercise. It is denied for want of knowledge that the plaintiff became major only on 20.12.1998 or that he was told all bitter family history by his mother. It is denied that the defendant no: 1 did not tell him anything or refused to disclose anything, or that the said defendant had any bitterness for which he never opened his mouth. It is denied that during the period of three years between 20.12.1998, the plaintiff came to know of more facts. It is again denied that defendant no: 3 to 5 herein, had promised to pay defendant no: 1 Rs. 2 Crore in 20 installments of Rs. 10 lacs per annum. It is denied that the said defendants, particularly, the answering defendant had promised defendant no: 1 to pay him sufficient money for taking a big house on rent and later on help him buy a new house in his own name and that the above alleged promises were conditional to the defendant no: 1 withdrawing the suit from the court. It is denied that the defendant no: 3 to 5, particularly the answering defendant no: 3 made any promises to defendant no: 1. consequently, the question of nonfulfillment of the same does not arise. It is denied that the defendant no: 1 became disillusioned, disgruntled or frustrated. It is denied that defendant no: 1 had all along been enjoying his health and life in a perfect manner. Further in case there was any disillusionment etc on the part of the said defendant, the answering defendant had nothing to do with the same. It would not out of context to state and submit here that S. Swaranjit Singh Kohli, the karta of the answering defendant no: 3 had always loved and well treated defendant no: 1 being his real younger brother and extended him and his family all the love and affection due to them as such. It is denied that there is / was any partnership firm under the name and style of "M/s Avtar Singh & Co. (HUF)". It is denied that there is / was any partnership firm under the name and style of "M/s R.S. Avtar Singh & Co. (HUF)". It is also denied that the business of Hotel Marina was the business under the partnership firm of varius HUF deriving their nucleus from the assets and esttates of "M/s R.S. Avtar Singh & Co. (HUF)". It is denied that the plaintiff has any share in the so called estate and properties of the socalled "M/s R.S. Avtar Singh & Co. (HUF)" or M/s R.S. Avtar Singh & Co. (HUF)". It is again submitted that M/s R.S. Avtar Singh & Co. was a partnership firm. It was never a HUF firm. There were many members of the Kohli family who were not partners of the firm M/s R. S. Avtar Singh & co. similarly, the firm M/s R.S. Avtar Singh & Co had several partners and many of them were not even members of Kohli Family. The allegations and averments with regard to the firm M/s R.S. Avtar Singh & Co. are wholly irrelevant and do not concern the reliefs prayed for by the plaintiff in the suit, in question. It is absolutely wrong for the plaintiff to allege that either the firm M/s R.S. Avtar Singh & Co. or any of its properties were inherited by any of the members of the Kohli Family. That the partnership firm dealing with Marina Hotel is altogether different from and has nothing to do with the firm M/s R.S. Avtar Singh & Co. Reference made by the plaintiff to that firm "M/s R.S. Avtar Singh & Co." and also to his personal relationship with other member to the Kohli Family are wholly irrelavant for purposes of the present suit which relates to the partnership firm carrying on business of the hotel marina. It is quite apparent that the plaintiff was wrongly been advised or that the legal opinion has been obtained / rendered on erronous facts. It is further emphatically denied that the plaintiff is entitled to the income and / or profits of M/s Hotel Marina. The entire claim and suit of the plaintiff is misfunded, misconceived, baseless and untenable both in law as well as in the facts of the present case. The plaintiff is not entitled to any amount whatsoever and the suit is liable to be dismissed forthwith. It is denied that the plaintiff being the grandson of late Sardar Avtar Singh in entitled to any share in the assets or estate of "M/s R.S. Avtar Singh & Co. (HUF)" firm. It is submitted that there is / was no such firm. In any event, the present suit of the plaintiff pertains to the partnership firm of M/s Hotel marina and not that of the socalled M/s R.S. Avtar Singh HUF. It is further denied that the partnership firm of M/s Hotel Marina was a business unit of "M/s R.S. Avtar Singh & Co. (HUF)". That the firm of M/s Hotel Marina is / was an independent firm having separate constitution and was / is independently bein assessed to income tax. It had got nothing to do with the firm M/s R.S. Avtar Singh & Co. It is also denied that the answering defendant no: 3 was / is a business unit of "M/s R.S. Avtar Singh & Co. (HUF)" or that it owed all its fuunds to the nucleus of M/s R.S. Avtar singh (HUF). The allegations, averments and contentions are wholly baseless and are unfounded. There was no question of succession of the properties of the firm or otherwise as a member of HUF by the plaintiff and / or defendant no: 1. it is futher categorically denied that the business of Hotel Marina owed its funds to the nucleus of M/s R.S. Avtar Singh (HUF). It is denied that the defendant no: 2 owed its capital source to the nucleus of M/s R.S. Avtar Singh & co (HUF) firm. It is denied that the defendant no: 1 had made contributions, for joinning the business of hotel Marina, from the funds of "M/s R.S. Avtar Singh & Co. (HUF)" for which there was no reason or justification for defendant no: 1 to agree for retirement of defendant no: 2 from the business / partnership of hotel mairna by the dissolution deed dated may 15, 1981. It is contended that the said retirement was pursuant to and in view of the family settlement arrived at amongst the members of the kohli family on august, 23 1980. reference to the partnership firm relating to marina hotel was also specifically made in the said family settlement. The defendant no: 1 as karta of the defendant no: 2 desired to sever his connections against payment of a specified sum of money. He assured the other members of the kohli family who were partneres in the firm of noninterference in the said business. In furtherance of his said assurance he also executed and gave an irrevocable power of attorney to S. Swaranjit Singh Kohli. That power of attorney was also executed on 23, august, 1980. In pursuance of that settlement, a sum of Rs. 42,000/ was paid to the defendant no: 2 by cheque no: 930537 dated 16th June 1981 drawn on the New Bank of India in favor of M/s S. Surjit Singh Kohli (HUF) in consideration of their severing connections with the firm. The defendant no: 1 deposited that cheque in savings bank account of M/s S. Surjit Singh Kohli (HUF) in the New Bank of India on or about 17 th June, 1981 and got is duly encashed. The various partnership firms in which the defendant no: 1 and / or his wife had a trading interest along with some of the other members of the kohli family, except kolmet enterprises, were dissolved on 04 th June, 1980 w.e.f. 31st March 1980. Reference to those transactions was also made in the family settlement recorded on 23rd August, 1980. The mother of the plaintiff herein, who was also the partner in some of such partnership concerns had also signed the said family settlement. Thereafter, the defendant no: 1 looked for and got on rent, the house no: B256, Greater KailashI, New Delhi and he himself shifted with bag and baggage to live in that house. Not only defendant no: 1 shifted his residence, but he also got a shop in M Block in Greater KailashI, New Delhi and started his own separate business in the name and style of Gift Galore. It is denied that M/s RS Avtar Singh & Co was a joint hindu family firm, or that it was created by late S Avtar singh Kohli or by late S. Rocha Singh. The allegations that all the coparceners inherited all the assets of their father and grand father, including the firm or that all the alleged coparceneres being the sons of the late S. Avtar singh Kohli have got equal shares in the assets, properties, and the firm, are absolutely preposterous, misconceived, baseless, unfounded and are denied as such. It is contended that the firm M/s RS Avtar Singh & Co was not an HUF. There was no question of succession to the properties of the firm, or otherwise, as members of the HUF by any of the parties. In any case, there are / were other members of the kohli family who are / were not even in business. Further in the firm M/s RS Avtar Singh & Co there are / were several outsiders also as partners. It is absolutely wrong for the plaintiff to allege that M/s RS Avtar Singh & Co was an HUF firm. It is denied that either the firm M/s RS Avtar Singh & Co or any of its properties were inherited by any of the members of the kohli family. The defendant no: 1 and his wife has severed all their connections with the various partnership firms and arrived at a settlement of all their accounts and interest relating to those firms. That the defendant no: 2 executed a power of attorney on august 20, 1980 in favor of S. Swaranjit Singh, the karta of the answering defendant no: 3. It is attested by two witnesses, namely, Smt Surinder Chandok and Shri Trilochan Singh Kohli, who are the real sister and real brother respectively of defendant no: 1 herein. The said two witnesses had no business interest with any of the parties to the present case. Clause 6 of the power of attorney specifically authorises S. Swaranjit Singh Kohli to sign dissolution deed of the firm or any other winding up papers etc. Acting on his power of attorney S. Swaranjit singh kohhli signed on behalf of the defendant no: 2 the dissolution deed dated may 15, 1981 by which the partnership firm relating to Marina hotel, wherein the defendant no: 2 had 7% share, was dissolved. That S. Swaranjit Singh Kohli was legally competent and fully authorized to sign the said deed of dissolution. Further the said deed of dissolution was signed in pursuance of the family settlement dated 23.08.1980 already executed amongst the members of the kohli family. That neither the said family settlement nor the power of attorney had ever been challenged by any person till date. Both the said documents are legally and validly executed and are still binding on the parties concerned. It is denied that the terms of the partnership deed dated 01.04.1980 were not taken into consideration while executing the dissolution deed dated 15.05.1981 while retiring defendant no: 2 from the partnership business of the firm M/s Hotel Marina. It is denied that the answering defendant no: 3 had served his own interest to his utmost advantage by taking to himself 7% profit sharing ratio and or that the defendant no: 2 was not given the cheque for an amount of Rs. 42000/ dated 16.06.1981. That defendant no: 2 retired from the partnership of M/s Hotel Marina pursuant to and in terms of the family settlement dated august 23, 1980. The said family settlement was arrived at much prior to the birth of the plaintiff. Once, the defendant no: 2 has retired from the firm M/s Hotel Mairna, it really does not matter as to who has acquired his share in the firm. This is besides the fact that the answering defendant no: 3 did not acquire the seven percent share of defendant no: 2, the same was acquired by Smt. Harbinder kohli, wife of Sh. Iqbal Singh Kohli. It is rather intriguing to note the absolute silence on the part of the plaintiff, as regard the family settlement dated 23.08.1980 and the general power of attorney dated 23.08.1980 executed by defendant no: 1. It is denied that suit no: 820 of 01982 was withdrawn secretly and or collusively. Defendant no: 1 herein, realized the futility of his said legal action and as such moved an application under order XXIII Rule 1 of the Code of Civil Procedure, 1908 and withdrew its said suit.
That the defendant no: 1 herein as well as his counsel signed the said application. It is therefore incorrect for the plaintiff to state or contend that the suit was withdrawn secretly and / of collusively. It is denied that the plaintiff was never aware of the facts and details of the said transactions or that he became aware of the same only upon attaining the age of majority. The date of birth of the plaintiff is also denied for want of knowledge. It is denied that the plaintiff, after attaining the age of majority, went on probing the facts and details from the family members. The way the present suit has been filed exactly on the last date of limitation, shows that the suit has been filed malafidee and with an ulterior motive. That the plaintiff, in fact, had all along been aware of the entire facts and details. It is denied that the answering defendant no: 3 has influenced the defendant no: 4 and 5. It is also denied that the answering defendant no: 3 has obtained general power of attorney from defendant nos: 4 and 5 and is exploiting the said defendants. That the allegations are totally baseless and unfounded as well as motivated. Hence, the same are denied and the plaintiff be put to strict proof in respect thereof as well. It is submitted that the present suit has been filed for oblique purposes. That the defendant no: 1 is using his son, the plaintiff herein, as a front to achieve his nefarious designs. That the present suit is a gross abuse of the process of law and this Court. It is liable to be dismissed forthwith. It is denied that defendant nos: 3 to 15 are partners of the firm working under the name and style of M/s Hotel Marina. It is further denied that the said firm has acquired / built hotels/ properties at Ludiana and Agra from and out of the profits from the said business of M/s Hotel Marina. It is submitted that the partners of the firm M/s Hotel Marina had invested a huge amount of their personal time, funds and resources over the last about twenty years or so, which have resulted in the creation / acquisition of the properties and expansion of business thereof. The success of the said firm is attributable to the sheer hard work put in by its partners to which defendant no: 1 and 2 had no role or contribution. The plaintiff is greedly eyeing upon the properties of the answering defendant no: 3 and other partners of Hotel Marina, which they have created by their perseverance and hard work over the last two decades. It is denied that the plaintiff is entitled to any decree of declaration to the effect of declaring the deed of dissolution, dated 15.05.1981 as invalid, inoperative and / or no consequence. It is further denied that the partnership deed dated 01.04.1980 is fully operational or that defendant no: 2 continues to be a partner of the firm M/s Hotel Marina. That the plaintiff has very conveniently avoided to take into account that the said dissolution was in pursuance of the Family Settlement dated 23.09.1980 which had been acted upon and given full effect. That the defendant no: 1 and 2 received and enjoyed all the benefits accruing to them thereunder. It is further emphatically denied that the defendant no: 2 is entitled to profits of the said firm w.e.f. 16.05.1980 till date. It is also denied that the plaintiff is entitled to rendition of accounts from the said partnership firm of M/s Hotel Marina w.e.f. 16.05.1981 till date. Dismissal of the suit is prayed for.
3. The defendant no: 8 has filed a separate written statement raising the preliminary objection that the suit of the plaintiff is wholly misconceived and untenable both in facts, as well as in law. That the suit of the plaintiff is hopelessly barred by limitation. That the plaint does not disclose any cause of action. That the suit of the plaintiff has not been properly valued for the purpose of Court fee. In fact, the requisite amount of Court fees has also not been paid. That the plaint has not been properly verified in accordance with the provisions of Order VI Rule 15 of the Code of Civil Procedure, 1908. That the plaintiff is guilty of suppressio vari and suggestio falsi. The plaintiff has made willful suppression of the material facts, which were to his knowledge and has deliberately and purposely twisted and distorted the facts of the case to suit its own convenience and to invoke the jurisdiction of this Hon'ble Court. It is contended that the defendant no: 8 is neither a necessary nor a proper party to the present suit of the plaintiff. Further, no relief has been claimed against the answering defendant. Consequently, the suit is liable to be dismissed qua the answering defendant no. 8. That as against the value of the suit assessed and fixed by the plaintiff for the purposes of jurisdiction, no Court fee at all has been by the plaintiff. The total amount of Court fee paid is ridiculously low, as compared to the value of the suit fixed by the plaintiff, for the purposes of jurisdiction. It has been done with the sole intent of defrauding the exchequer of the due revenue. The suit therefore, needs to be dismissed forthwith for the said reason alone. On merits, the contentions of the plaintiff as raised in the plaint are denied & dismissal of the suit is prayed for.
4. Upon completion of pleadings the following issues were framed for adjudication on 11.08.2008.
1. Whether the suit is barred by limitation ? (OPD3).
2. Whether the suit is bad for nonjoinder of necessary parties and if so, to what effect? (OPD3).
3. Whether the suit is not properly valued for the purposes of Court fee? (OPD3).
4. Whether the suit is without any cause of action qua defendant no. 8 and if so, to what effect? (OPD8).
5. Whether defendants no. 3 to 5 made any promise to defendant no. 2 as alleged in para 19 of the plaint? (OPP).
6. Whether the defendant no. 3 to 5 defaulted in fulfilling the promises made to defendant no. 1 for withdrawing suit no. 820/1982 and if so, to what effect? (OPP).
7. Whether the plaintiff has share in the estate and properties of M/s Avtar Singh & Co. HUF and in the business of Hotel Marina and if so, to what effect? (OPP).
8. Whether the plaintiff left any share in the partnership firm of M/s Hotel Marina after the family settlement dated 23.8.1980? (OPP).
9. Whether the defendant no. 1 had no right to agree to ouster of defendant no. 2 from the business of M/s R.S. Avtar Singh & Co. HUF by dissolution deed dated 15.5.1981 against the interest of the plaintiff, a minor coparcener at that time and if so, to what effect? (OPP).
10. Whether the dissolution deed dated 15.5.1981 is invalid, illegal and inoperative with no legal consequence? (OPP).
11. Whether the dissolution dated 15.5.1981 was validly executed and Suit No. 802/1982 was not withdrawn against the financial interest and legal right of the plaintiff as a coparcener? (OPP).
12. Whether the partnership deed dated 1.4.1980 is fully operational and, if so, to what effect? (OPP).
13. Relief.
5. The plaintiff has stepped into the witness box as PW1 and besides the affidavit in evidence has relied in evidence upon CBSE certificate as Ex. PW1/1, certified copy of the plaint in suit no: 820/1982 as Ex. PW1/2, written statement by defendants no: 6 to 10. 13 & 14 in that suit as Ex. PW1/3, written statement by defendants no: 1, 3, 4, 11 & 12 as Ex. PW1/4; certified copy of partnership deed dated 01.04.1980 as Ex. PW1/5; certified copy of dissolution deed dated 15.05.1981 as Ex. PW1/6; certified copy of dissolution deed dated 15.05.1980 as Ex. PW1/7; Certified copy of GPA dated 23.08.1980 as Ex. PW1/8; certified copy of lease deed dated 15.05.1981 as Ex. PW1/11, certified copy of partnership deed dated 29.05.1981 as Ex. PW1/12, certified copy of partnership deed dated 06.05.1975 as Ex. PW1/13, certified copy of dissolution deed dated 30.11.1979 as Ex. PW1/14, certified copy of partnership deed dated 06.12.1976 as Ex. PW1/15, certified copy of dissolution deed dated 04.06.1980 as Ex. PW1/16, certified copy of partnership deed dated as Ex. PW1/17, certified copy of partnership deed dated 03.09.1976 as Ex. PW1/18, certified copy of form C dated 23.12.1981 as Ex. PW1/21, of form B, form C dated 23.12.1981 as Ex. PW1/21, of form B dated 16.05.1977 as Ex. PW1/22 of form A dated 16.05.1977 as Ex. PW1/23 of assessment order dated 31.03.1980 as Ex. PW1/24 of assessment order dated 12.10.1980 as Ex. PW1/25, certified copy of balance sheet with annexure dated 31.03.1980 as Ex. PW1/27, certified copy of application bearing IA No: 1347/83 as Ex. PW1/30, certified copy of IA No: 1982/83 as Ex. PW1/31. Certain documents were admitted by the defendant at the admission / denial of the documents and the said documents were exhibited as Ex. P1 to Ex. P13 vide order dated 03.10.07. Document tendered as Ex. PW1/2 is Ex. P3, documents tendered as Ex. PW1/11 to Ex. Pw1/17 are Ex. P4 to Ex. P8, documents tendered as Ex. PW1/18 to Ex. PW1/20 are Ex. P11 to Ex. P13 and documents tendered as Ex. PW1/121 and Ex. PW1/22 are Ex. P9 and Ex. P10, Ex. P1/24 is not on record.
6. Defendants no: 1, 2, 4, 5, 6, 7, 11, 12 & 13 have not lead any evidence and their evidence stood closed by order. Defendant no: 3 has stepped into the witness box as D3W1 on behalf of defendants no: 3, 8, 9 & 10. D3W1 has tendered his affidavit in evidence and relied upon the family settlement dated 23.09.1980 (Ex. P2), Certified copy of plaint as Ex PW1/D-1, certified copy of written statement by the defendant no. 2 to 8 as Ex PW1/D-2, certified copy of written statement by defendant no. 9 to 20 as Ex PW1/D-3, certified copy of order dt. 14.11.1982 as Ex PW1/D-4, certified copy of application u/O 22 Rule 1 as Ex PW1/D-5, certified copy of order dt. 25.05.1983 as Ex PW1/D-6, certified copy of plaint in suit no. 1820 of 1982 as Ex PW1/D-2, certified copy of application u/O 23 Rule 1 in CC no. 820/1982 as ExPW1/D-3, certified copy of order dt. 25.03.1983 as Ex PW PW1/D-8, certified copy of application u/s 151 CPC as Ex PW1/D-9, certified copy of order dt. 1815/1983 in CS no. 820/1982 as Ex PW1/D-10 and has also relied upon dissolution deed dt. 30.11.1976 Ex PW1/18, partnership deed dt. 06.05.1975 as Ex PW1/13, partnership deed dt. 05.12.1976 as Ex PW1/15, dissolution deed dt. 3.06.1980, Ex PW1/16, partnership deed dt. 14.06.1980 as Ex PW1/17; and has tendered in evidence partnership deed with signatures identified of all the partners dated 11.07.1977 as Ex D3W1/1, dissolution deed dated 04.06.1980 as Ex. D3W1/2; the witness has also relied upon partnership deed 03.09.1976, Ex.P-11, dissolution deed dated 04.06.1980, Ex. P-12; partnership deed dated 04.06.1980 as Ex. P-13, form-C, dated 23.12.1981 as Ex. P-9, form-B dated 16.05.1977 as Ex. P-10, form-A dated 16.05.1977 as Ex. PW1/23, assessment orders dated 12.10.1980 and 29.07.1981 as Ex. PW1/25 and Ex. PW1/26, balance sheet along with annexures dated 31.03.1980 as Ex. PW1/27; D3W1/3 has tendered into evidence partnership deed dated 06.12.1976 as Ex. D3W1/3, dissolution deed dated 04.06.1980 is tendered into evidence as Ex. D3W1/4; transfer of license dated 15.07.1983 is tendered into evidence as Ex. D3W1/5, transfer of license in respect of flat no: 1010, Kailash Apartment, KG Marg, New Delhi is tendered into evidence as Ex. D3W1/6; license deed dated 09.11.1975 is tendered into evidence as Ex. D3W1/7; and has relied upon partnership deed dated 13.05.1978 as Ex. PW1/D10, true copy of dissolution deed dated 04.06.1980 as Ex. PW1/D11, true copy of partnership deed dated 04.06.1980 as Ex. PW1/D12, certified copy of partnership deed dated 01.04.1980 as Ex. PW1/5, family settlement dated 23.08.1980 as Ex. PW1/7.
7. My Issue wise Findings are as under : I shall take up for discussion issues no: 1, 5 to 12 first, the issues being interconnected and interlinked and having consequential bearing on each other and the outcome of the proceedings. The plaintiff and the defendants 1 to 5 (in their capacity as Kartas of their respective HUF's are all lineal descendants of Late Sh. Avtar Singh, defendant no: 1 son of late Sh. Avtar Singh is the father of the plaintiff and the defendant no: 3 to 5 as Kartas of their respective HUF's are the brothers of defendant no: 1, all sons of late Sh. Avtar Singh. Late Sh. Avtar Singh died in the year 1968. Defendant no: 1, 3 to 5 are not the only sons of late Sh. Avtar Singh, however, as one son of the late Sh. Avtar Singh, namely Sh. Tarlochan Singh is not made a party to the present proceedings. Sh. Rocha Singh was the great grandfather of the plaintiff. Sh. Rocha Singh died in the year 1960. The plaintiff alludes to business started in Pakistan by the great Grandfather and Grandfather of the plaintiff. The plaint dwells no further on the nature of the business, the manner in which it was carried out, the name and style under which it was being run and as to whether besides Sh. Rocha Singh and S. Avtar Singh Kohli, there were any other siblings of Sh. Rocha Singh and progenies besides the grandfather of the plaintiff, that were engaged in the running of business. It is not borne out from the pedigree table as to whether S. Rocha Singh had only one son or other children also not referred to in the pedigree table as no right to relief is being claimed against them. The plaintiff further alleges that after 1951, S. Avtar Singh alongwith four of his sons excluding one son namely Sh. Tarlochan Singh Kohli, not arraigned as a party defendant, was running the business under the name and style of M/s R.S. Avtar Singh and Company and the funds for the establishment of the business run under the name and style of M/s R.S. Avtar Singh and Company were drawn from the nucleus of ancestral funds and estate of late S. Rocha Singh. The plaintiff does not venture to divulge any details and particulars of the "ancestral funds" and "estate" of late S. Rocha Singh. The plaintiff gives this brief backdrop however the relevance and significance the inferences that are sought to be drawn therefrom are lost on the Court, as the suit of the plaintiff is not for the partition of the estate of Sh. Rocha Singh or of Sh. Avtar Singh but impugns the Dissolution Deed dated 15.05.1981. I shall straightaway brace myself with the fact in issue. The Dissolution Deed is tendered into evidence as Ex.PW1/6. The Dissolution Deed is between the following parties:
"This Dissolution Deed made at New Delhi between M/s Bhagat Industrial Corporation Ltd., 54, Janpath, New Delhi party of the first part. Shri Girdhari Lal son of Shri Diwan Chand resident of Connaught Place New Delhi hereinafter called the party of second part. Sardar Iqbal Singh Karta of M/s Iqbal Singh Kohli HUF resident of R73, Greater KailashI, New Delhi, hereinafter called the party of the third part.
S. Swaranjit Singh Kohli Katra of M.s Swaranjit Singh Kohli HUF resident of R73, Greater KailashI, New Delhi hereinafter called the party of fourth part, S. Surjit Singh Kohli Karta of M/s Surjit Singh Kohli HUF resident of R73, Greater KailashI, New Delhi hereinafter called the party of the fifth party.
S. Jagmohan Singh Kohli Karta of M/s Jagmohan Singh Kohli HUF resident of R73, Greater KailashI, New Delhi, hereinafter called the party of sixth party.
Shri Suraj Bhan Mehta son of Shri Dayal Lal resident of D196, Defence Colony, New Delhi hereinafter called the party of the seventh party.
Shri Ashwani Bhan Mehta son of Shri Suraj Bhan Mehtta, resident of D196, Defence Colony, New Delhi, hereinafter called the party of the eight part.
Mrs. Kewali Bai Mehta wife of Shri Dayal Lal Mehra resident of D196, Defence Colony, New Delhi, hereinafter called the party of the ninth part.
Shri Suraj Bhan Mehta, trustee Mehta Family Trust hereinafter called the party of the tenth part."
8. There are ten parties to the Dissolution Deed. The Dissolution deed witnesses as follows:
"WITNESSTH AS FOLLOWS:
WHEREAS the ten parties have been carrying on business, co partnership under the name and style of HOTEL MARINA vide partnership deed dated Ist, April, 1980.
AND WHEREAS all the ten parties hereto except Shri Suraj Bhan Mehta, party of the seventh part as surviving and continuing partner of the business on the terms and conditions hereinafter appearing. THEREFORE it is hereby agreed, desired covenated and recorded by and between the parties hereto as follows:
1. That this deed of Dissolution Deed shall be deemed to be effective from the afternoon of 15th May, 1981.
2. That the surviving partner namely Shri Suraj Bhan Mehta of the seventh part holding 5% share in the erstwhile partnership business and the remaining nine partners holding 95% share have retired.
3. That L. Girdhari Lal Party of the second part who held 10% share in the above partnership business has been agreed to be paid Rs.
11,000/ towards his capital contribution in the partnership and Rs. 39,000/ towards his share of the good will. The aforesaid aggregate payment of Rs. 50,000/ has been agreed to be made to the counterpart is such the payment will be made to Shri Girdhari Lal Accordingly Shri Girdhari Lal, party to the second part declares and resolves that he had finally retired from the partnership business of Hotel Marina that he has no right, title or interest left in the said business.
4. That the remaining eight retired partners being the parties of first, third, fourth, fifth, sixth, eight, ninth and tenth part have also gone through the accounts finally and that they have received their due share of their investment in the partnership business as also their share of the goodwill of the business in full and final settlement from the surviving partner. As such the above mentioned retiring partners also agree, declare and record that they have now no subsisting right, title or interest in the Marina Hotel Business.
5. That all the nine retiring partners also agree, declare and record that they have no concern whatsoever with the tenancy of the Marina Hotel Business premises.
6. That this dissolution deed shall not cause any cessation of the business of Marin Hotel which has been taken over by party of seventh party alongwith other parties as a going concern. The said continuing partner has taken other partners in the business of Marina hotel to enable him to pay the dues of the nine retiring partners of this business.
9. That this deed of Dissolution has accordingly been executed by the continuing partner and the retiring partners at New Delhi on i.e. 15 day of May, 1981 in the presence of witnesses."
The dissolution deed is signed besides others by the defendants no: 3 to 5 as well as the defendant no: 1 through his power of attorney holder Swaranjit Singh Kohli.
9. It is the partnership that come into effect on 01.04.1980 that has come to an end with the retirement of 9 of its partners. It is Bhagat Industrial Corproation Ltd, Sh. Girdhari Lal, Sh. Iqbal Singh Karta of M/s Iqbal Singh Kohli HUF, S. Swaranjit Singh Kohli karta of M/s Swaranjit Singh Kohli HUF, Surjit Singh Kohli karta of M/s Surjit Singh Kohli, Jagmohna Singh Kohli karta of M/s Jagmohna Singh Kohli HUF, Sh. Suraj Bhan Mehta, Sh. Ashwani Mehta, Smt Kewali Bai Mehta, Sh. Suraj Bhan Mehta trustee Mehta Family trust, that had entered into a partnership for carrying on the business of Hotel Marina in partnership and had executed partnership deed dated 01.04.1980 in respect thereof. As per the terms of the deed of partnership, the existing partnership of Hotel Marina which was in the hands of Bhagat Industrial Corporation to the extent of 90% and Sh. Girdhari Lal to the extent of 10% was to form an intergral part of the partnership business and the defendants no: 2 to 5 along with others had joined the business of Hotel Marina as a on going concern and had paid to Bhagat Industrial Corporation a sum of Rs. 49,500/ towards capital contribution besides a sum of Rs. 2,42,000/ towards the goodwill of the business, proportionately to their respective shares in the capital of the business. The shares of the ten partners in the profits and losses of the business were laid down in clause 6 as follows:
First Party(Bhagat Industrial Corporation Limited) 45 % Second Party (Girdhari Lal) 10 % Third Party(Iqbal Singh karta of M/s Iqbal Singh Kohli (HUF) 7 % Fourth Party (S. Swaranjeet Singh Kohli, karta of M/s Swaranjeet Singh Kohli) (HUF) 7 % Fifth Party Surjeet Singh, karta of M/s Surjeet Singh Kohli (HUF) 7 % Sixth Party Jagmohan Singh, karta of M/s Jagmohan Kohli (HUF) 6 % Seventh Party Suraj Bhan Mehta 5 % Eight Party Aswani Mehta 5% Ninth Party Kewli Bai 4 % Tenth Party Suraj Bhan Mehta, Trustee Mehta Family Trust 4 %
10. Partnership is a contractual relationship and is defined in section 2 of the Indian Partnership Act, 1932 as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The persons who have entered into partnership with one another are individually referred to as partners and collectively they constitute the firm and the name under which the business is carried on is called the firm name. The relation of partnership arises per contract and not from status. Where no provision is made between the partners for the duration of their partnership or for the determination of their partnership the partnership is partnership at will. No person can be introduced as a partner into a firm without the consent of all the existing partners subject to the contract to the contrary between the partners. A partner may retire with the consent of all the other partners in accordance with an express agreement by the partners or where the partnership is at will by giving notice in writing to all the other partners of his intention to retire. The dissolution of partnership between all the partners of a firm is called the dissolution of the firm. A firm may be dissolved with the consent of all the partners or in accordance with the contract between the partners. Under certain exigencies a firm may be compulsorily dissolved as by the adjudication of all the partners or of all the partners but one as insolvent, or by the happening of any event which makes it unlawful for the business of the firm to be carried on or for the partners to carry it on in partnership. A firm may be dissolved by the Court at the suit of a partner and the grounds thereof are enumerated under section 44 of the Partnership Act. A firm may be dissolved on the happening of certain contingencies as laid down under section 42 of the Partnership Act.
11. The plaintiff impugns the dissolution deed and the retirement of one of the partners on the ground that there was no reason or justification for the defendant no: 1 as Karta of defendant no: 2 to retire from the partnership of Hotel Marina which was entered into on 01.04.1980 itself and when the defendant no: 1 had paid a sum of Rs. 7,700/ towards capital and Rs. 37,250/ towards goodwill. The plaintiff alleges that the Dissolution Deed is not executed of the own Volition and independent will of the defendant no: 1 primarily because there was no reason / circumstance compelling him to do so and that too after accepting a meager sum of Rs.
42,000/ when the defendant no: 1 had paid / invested a sum of Rs. 44,000/ a year and a half back, for being inducted as a partner.
The defendants on the other hand allege that the partnership of hotel marina is dissolved vide the Dissolution Deed dated 15.05.1981 in accordance with and in pursuance to a family settlement arrived at between the brothers i.e. defendant no: 1, defendants no: 3 to 5 impleaded as Karta's of their respective HUF's and other family members including the mother of the plaintiff. The family settlement reduced into a Deed of Family Settlement dated 23.08.1980 is tendered into evidence as Ex. PW1/7. The settlement is entered into between the following family members:
"THIS DEED OF FAMILY SETTLEMENT is made this 23 rd Day of August, 1980, between:
1. S. Iqbal Singh Kohli son of late Sardar Avtar Singh resident of R73, Greater KailashI, New Delhi (which expression unless repugnant to the context shall mean and include his legal heirs and successors) hereinafter referred to as party of the first part;
2. S. Swaranjit Singh Kohli son of late S. Avtar Singh resident of R73, Greater KailashI, New Delhi (which expression unless repugnant to the context shall mean and include his legal heirs and successors) hereinafter referred to as party of the second part;
3. Shir Jagmohan Singh Kohli son of late S. Avtar Singh, resident of R73, Greater KailashI, New Delhi (which expression unless repugnant to the context shall mean and include his legal heirs and successors) hereinafter referred to as party of the third part;
4. Smt. Sant Kaur wife of late S. Avtar Singh Kohli, resident of R73, Greater KailashI, New Delhi (which expression unless repugnant to the context shall mean and include his legal heirs and successors) hereinafter referred to as party of the fourth part;
5. S. Surjit Singh Kohli, son of late S. Avtar Singh Kohli, resident of R73, Greater KailashI, New Delhi (which expression unless repugnant to the context shall mean and include his legal heirs and successors) hereinafter referred to as party of the fifth part;
6. Smt. Baljeet Kaur wife of S. Surjit Singh, resident of R73, Greater KailashI, New Delhi (which expression unless repugnant to the context shall mean and include his legal heirs and successors) hereinafter referred to as party of the sixth part;
12. The events preceding the entering into of the family settlement are also recounted as follows:
WHEREAS S. Surjit Singh, party of the fifth part, alongwith his spouse Smt. Baljit Kaur, party of sixth part, have decided to retire from all family concerns, except to the limited extent provided hereinafter, having settled all their claims, liens and rights in all business concerns, joint properties and assets held individually and severally.
AND WHEREAS the severance of connection from family businesses is not only in individual capacity but also on behalf of his / HUF as Karta as well as Trustee of the Sant Kaur Family Trust wherever they had interest in such business and properties in that capacity.
The relevant portion of the deed of family settlement impinging upon the rights and entitlement of the father and mother of the plaintiff, the father in his capacity as Karta of the HUF also are extracted hereunder:
AND NOW THEREFORE THIS DEED OF FAMILY SETTLEMENT WITNESSETH AS UNDER:
2. That Shri Surjit Singh party of fifth part has retired from the firm M/s R.S. Avtar Singh & Co., w.e.f. 31.03.1980 having settled his account and the firm has been taken over by continuing partners as a going concern who are at liberty to reconstitute the same in any manner agreed among them to which the party of the fifth part has no objection.
3. That the party of fifth part has retired from the firm M/s R.S. Avtar Singh and Company (Unit no: 1) after having settled his account as on 31.03.1980 and all assets and properties including the built DDA plot admeasuring 666 sq. yards. bearing no: 4, Ware housing Scheme, Furniture Block, at Kirti Nagar, New Delhi and the party of fifth part has no objection to the reconstitution of the firm among the continuing partners, namely, S. Iqbal singh, S. Swaranjit Singh has no right, lien, or any interest left in the said change over and removal of his name from the record of DDA or any other concerned authority.
...............
7. That the party of fifth part who is Trustee of Sant Kaur Family Trust having 14% share as partner in the firm M/s Kolmet Enterprises, carrying on the business of restaurant keepers under the business name of HOST RESTAURANT and in this firm alone party of fifth part shall continue to have 14% share and interest in his personal capacity. However, a General Power of Attorney for looking after his business, the party of fifth part has executed a General Power of Attorney favoring Shri Jagmohan Singh Kohli, party of third part, who shall represent him in every manner in the firm and has been given specific authority to use such attorney for cessation of his interest in the event of his any untoward interference in the dayto day working of the said firm.
8. That Shri Surjit Singh as Karta of Sarjit Singh HUF is partner in the firm having the management rights of Marina Hotel for which the party of fifth part of said family against which a payment of Rs. 45,346/ is yet to be made by the said firm to him. He has no lien, right or claim and his interest is limited to the extent of said investment and the moment the said sum is paid to him, he shall have no right or claim in the said firm. However, on his request, the interest shall continue to be paid on the borrowings for the purpose of investment which shall be adjusted against his share till the time the amount is not paid to him. He has assured of noninterference in the said business and has given an irrevocable General Power of Attorney to S. Swaranjit Singh.
..........
11. The party of fifth part hereby relinquishes all his rights, liens and interest in the family properties including the properties of his mother Smt. Sant Kaur, who shall be making her Will excluding him from property belonging to her to which he has no objection."
13. The settlement is arrived at before the birth of the plaintiff. The dissolution of the partnership of M/s Hotel Marina is a step in the execution of acting upon, giving effect to the family settlement. The plaintiff impugns the Dissolution Deed executed in furtherance of the family settlement, however, sets up no challenge to the family settlement. The mother of the plaintiff is also a signatory to the family settlement. It is clause 8 of the family settlement that explicitly pertains to the partnership rights of the defendant no: 2 in the Hotel Marina. It is capitulated that the defendant no: 2 shall retire from the said partnership and shall be paid a sum of Rs. 45,346 and for the purposes, he shall execute a GPA in favour of his brother Sh. S.S. Kohli. As a matter of fact the defendant no: 1 acting as karta of defendant no: 2 had executed a GPA dated 23.08.1980 in favor of Sh. S.S. Kohli, his brother. The GPA dated 23.08.1980 is also tendered as Ex. PW1/8 by the plaintiff desposing as PW1. I have extracted below the authorization in favor of the defendant no: 3, the brother of the defendant no: 1 impleaded as karta of his HUF which is to the following effect:
"KNOW ALL MEN by these presents that I, Surjit Singh Kohli, son of late S. Avtar Singh, resident of B73, Greater KailashI, for Delhi in capacity of Karta of M/s Surjit Singh HUF a joint Hindu Famiily comprising of myself my spouse and minor children do hereby nominate, constitute and appoint my brother S. Swaranjeet Singh Kohli son of S. Avtar Singh resident of R73, Greater KailashI, New Delhi, as my true and Lawful attorney, for the family in family name and on family behalf to do and execute and perform or cause to b done, executed and performed all or any of the following acts, deeds and things.
1. To represent me as Karta of Surjit Singh, HUF who is partner in the firm M/s Marina Hotel in connection with its business and all affairs ancillary and incidental thereto and to sign all contracts and orders and other documents, letters and receipts, papers and writing wheresoever and deals as my set and deed.
2. To ask for, demand, recover, receive and collect all moneys due and payable to the family from the said firm M/s Marina hotel and to give good vaid receipts and discharge therefore.
3. To appear for an represent me as partner of the said firm before all authorities and courts having civil, criminal, original or appellats, revisional or special jurisdiction, before any Tribunal of Arbitration or other Tribunal or judicial authorities and in all other Government or SemiGovernment offices and departments.
4. To seek, dispose of or transfer my share in M/s Marina Hotel represented as goods and stock intrade for cash or credit as be considers proper.
5. To settle, compromise or compound any debt or claim pertaining to family share in favor of against the firm.
6. To sign dissolution deed of the firm or any other winding up papers or abandonment of family's share or closure thereof.
And generally to do all acts, deeds and things as may be necessary to fully represent family's share in the said firm to all intents and purpose as be considers proper without resulting into a direct loss to me.
7. That this Power of Attorney shall be irrevocable and shall remain as and for all time to come.
IN WITNESS to bind myself, any heirs and successors, I have hereto set and subscribed any hand on this 23rd day of August, 1980 is presence of witness.
14. The authorization in favor of Sh. S.S. Kohi to execute Dissolution Deed on behalf of defendant no: 2 is explicit and unambiguous. The Dissolution Deed is questioned as it is signed by the defendant no: 3 (impleaded as Karta), namely Sh. Swaranjit Singh Kohli as PoA holder of the defendant no: 1. The plaintiff contends that there was no occasion for the defendant no: 1 to have executed a PoA in favor of the brother S. Swaranjeet Singh Kohli as he was hale and hearty and very much present in Delhi on the date of the execution of the Dissolution Deed. The plaintiff, however, does not carry the assertion forward and allege that the document tendered as Ex. PW1/8 is a forged and fabricated document nor claims any relief of cancellation / declaration in respect thereof. The court cannot surmise that the defendant no: 1 did not need to execute any POA and therefore, has not infact executed a POA when the document has been produced before the court and the plaintiff beyond conjectures raises no effective grounds of challenge to the document. There is no illegality in defendant no: 1 Karta of defendant no: 2 acting though the defendant no: 3, his brother as his duly constituted attorney to have dissolved the partnership of Hotel Marina vide Dissolution Deed dated 15.05.1981.
15. Partnership being a creation of contract can also be put to an end by contract entered into of the free consent of the parties. The plaintiff alleges that the consent of the father of the plaintiff to the dissolution of the partnership as endorsed on his behalf under the deed of dissolution dated 15.05.1981 is not voluntary and therefore the agreement bringing an end to the partnership is a voidable contract at the instance of the plaintiff. Where a party alleges that consent is obtained by force, fraud, coercion, misrepresentation, undue influence or is vitiated as its suffers from a mistake of fact, it is for the party so asserting to establish the allegation of facts in respect of the fraud, force, coercion or misrepresentations. The averments set up by the plaintiffs do not cull out for the plaintiff the precise ground on which the consent of the defendant no: 1 acting as the karta of the defendant no: 2 is alleged to be vitiated, whether it is on account of fraud or misrepresentation or undue influence or coercion. What emerges as the admitted case of the parties is that the execution of the dissolution deed is perceded by a family settlement and execution of aGPA. The defendant no: 1 is a party along with his wife to the family settlement, and a GPA is executed by the defendant no: 1 as defendant no: 2 in favor of the defendant no: 3 impleaded as karta of his respective HUF. The execution of the dissolution deed is not a solitary disconnected act, it follows a chain of sequence of events leading up to the execution of the dissolution deed dated 15.05.1981, involving execution of documents by the defendant no: 1 and his wife, none of which have been seriously questioned by the plaintiff.
16. What is also pertinent is that the Defendant no: 1 in the year 1982 had instituted a civil suit titled as Surjit singh kohli Vs Swaranjit Singh, registered as CS (OS) No: 820/1982. The said suit was for the same reliefs as are being sought by the plaintiff, the son of the defendant no: 1 under the present suit. The plaint in CS (OS) no: 820/1982 is tendered as Ex. PW1/D2. The reliefs claimed is CS (OS) no:
820/1982 are reproduced here under:
"Prayer It is proved that the dissolution deed dated 15th May 1981 be declared null and void. The same may be treated as cancelled and the partnership deed dated 28th May, 1981 be also declared the result of fraud and is not binding on the plaintiff. The same has no effect. It may also be declared that the partnership deed dated 1 st April, 1980 is in existence.
Further, the defendants be declared to render the accounts of the partnership."
The said suit for the relief as reproduced above instituted by the father of the plaintiff in the year 1982 was disposed of on 25.03.1983 on the statement of the father of the plaintiff which is reproduced by the plaintiff himself in para 20 of the affidavit in evidence and is to the following effect : "Parties have arrived at a settlement. I want to withdraw the present suit as well as the other suits and proceedings filed by me."
Though the plaintiff has reproduced the statement of the father of the plaintiff, however, the plaintiff alleges that this statement was made again as a result of fraud, misrepresentation and undue influence as the defendants no: 3, 4 & 5 had promised the father of the plaintiff that if he withdraws the suit, they will pay to him a sum of Rs. 2 Crores in 20 installments i.e. @ Rs. 10 Lakhs per annum, and that they will pay him sufficient money for taking a big house on rent and later on, help him buy a new house in his own name, and that the condition was that he must withdraw the suit without any condition, however the defendant no. 3 to 5 never fulfilled the promises made to defendant no. 1, and backtracked on their solemn problems. The application under order 23 rule 1 filed by the father of the plaintiff in the course of CS No: 820 of 1982 is tendered on the record as Ex. PW1/D3. The contents thereof read as follows:
"Respectfully Showeth:
1. The above suit is pending in this Hon'ble Court.
2. The plaintiff does not wish to proceed further with the suit and the other connected proceedings. The plaintiff my be permitted to withdraw the suit and all allied proceedings, leaving the parties to bear their respective costs.
PRAYER It is, therefore, respectfully prayed that this Hon'ble Court may permit the plaintiff to leave parties to bear their respective costs and pass such other or further orders as may be deemed to be fit and proper in circumstances of the present case."
The father of plaintiff with the mother of the present plaintiff, as a co plaintiffs had also instituted CS (OS) No. 710/1981 against his brothers for rendition of accounts of dissolution of the partnership under the name and style of M/s R. S. Avtar Singh and Company. This suit was also withdrawn on a statement made by the father and the mother of the plaintiffs, to the effect that there has been a settlement and they do not wish to proceed with the proceedings further. In neither of the two litigations initiated by the father of the plaintiff who is alleged by the plaintiff to have been promised by his brothers an amount of Rs. 1 Crore towards full and final settlement of his claim raised against his brothers, did the father of the plaintiff make any kind of exposition of the assurance as alleged by the plaintiff herein. It is highly improbable conduct of a reasonable man of ordinary prudence that he would withdraw the litigation without incorporating such a material term of settlement in writing. Statement of the father of plaintiff was recorded in both the suits, and alongwith the application which is signed by the Advocate representing him, affidavit in support of the father of plaintiff is also filed. Even in the statement, the father of plaintiffs did not volunteer to refer to any such terms as alleged by the plaintiffs. The suits are withdrawn after recording express statement of the father of plaintiff. In case there was infact any such terms of settlement arrived at between the parties, what prevented the defendant no. 1 from getting the same recorded is not forthcoming. The suit is withdrawn as settled. No such terms of settlement as alleged by the plaintiffs finds mention either in the application under Order 23 or in the statement recorded in the Court.
17. The plaintiff has stepped into the witness box as PW1, in support of the allegations raised. The plaintiff has not examined any other witness, his father or his mother nor has led any documentary evidence in respect of the alleged terms of settlement where oral evidence is led in support of postive assertion of fact raised by the party asserting the existence thereof oral evidence under all circumstances is mandated under chapter 4 of the Indian Evidene Act to be direct. All facts except contents of documents may be proved by oral evidence, however, oral evidence must in all cases whatever be direct that is to say if it referes to a fact which could be seen it must be the evidence of a witness who says he saw and it refers to a fact which could be heard it must be the evidence of a witness who says he heard it and if it refers to a fact which could b perceived by any other sense or any other manner it must be the evidence of the witness who says he perceived it by that sense or in that manner and if it refers to an opinion or two grounds on which that opinion is held it must be the evidence of the person who holds that opinion on both grounds. PW1 admits to the following:
"My relation with my father are not cordial since 20 years. My knowledge of the facts of this case are based upon my own speculation. It is correct that all facts pertaining to the period alleged by me prior to my birth. Obviously did not happen in my presence and thus not to my personal knowledge. These are based on my understanding and reading the records.
I learnt about filing of this case from the records on my own, (Speculation) and from my counsel as well as family members which includes my mother and father and entire Kohli Family. My mother did not tell me about this case. Ques No. 3: Have you in any proceedings challenged the family settlement Ex. PW1/7?
Ans: I have never challenged. The S. Surjeet Singh Kohli, (HUF) defendant no. 2, defendant no. 3 (HUF) and defendant no. 4 (HUF),were created for the first time on 01.04.1980. It is a matter of record that partnership dated 01.04.1980 was executed in this regard. The same is Ex.PW1/5. It is also correct that the said partnership was dissolved vide dissolution deed dated 15.05.1981. The same is Ex. PW1/6. As per records it is correct that the defendant no. 7 was paid a sum of Rs. 42,000/ vide cheque no. 930537 dated 16.06.1981. It is correct that the said cheque was deposited in HUF Account No. of defendant no. 2. it is correct that thereafter a fresh partnership dated 29.05.1981 was executed where in defendant no. 1 and defendant no. 2 was not partner. The same is Ex. PW1/ 12 and also P5. I am not aware as to what was the claim of my father in the suit bearing no. 820/1982 (Voltd.). I cannot say in this regard unless I see the plaint. It is a matter of record that Ex. PW1/ 8 POA was executed by my father. The entire evidence of the plaintiff is hearsay. The plaintiff has not produced the best evidence by examining his father and his mother. Even if his relations are allegedly estranged with his father however there is no explanation forthcoming as to why the mother of the plaintiffs, as signatory to the family settlement and a coplaintiff to CS (OS) 710/1981 is not examined in evidence. As a consequence of the discussion above, I come to a conclusion that the defendants 3 to 5 had made no such promises as alleged by the plaintiff in para 19 of the plaint and therefore there is no question of the defendants 3 to 5 defaulting on their promises for withdrawing of suit no: 820/1982 by the defendant no: 1. Issue no: 5 to 6 are decided against the plaintiff and in favor of the defendants.
18. The plaintiff contends that the rights of the plaintiff coparcenor a minor at the time of the dissolution of the Partnership of Hotel Marina could not have been taken away by the defendant no. 1 acting as Karta of defendant no. 2. It is defendant no. 2 that is inducted as the partner vide Partnership Deed dated 01.04.1980 to the Partnership of Hotel Marina. The plaintiff was a Coparcenor of defendant no. 2, minor at the relevant time. The defendant no. 1 as Karta has sought retirement of the HUF of which he is the Karta from the Partnership of Hotel Marina. There are no malafides alleged against the karta. The defendant no. 1, the Karta of defendant no. 2 had entered into the Partnership of Hotel Marina and thereafter retired therefrom. The defendants allege that defendant no. 1 wanted to start a separate business and had entered into a family settlement and alongwith his wife had retired from all the family concerns as he wanted to start a business of his own. As no malafides are alleged against the Karta, the Karta had taken the decision in the best interest of the management of the HUF and administration of the HUF properties, partnership being a matter of contract if any partner does not wish to continue as partner, cannot be forced to continue as a partner. The defendant no. 2 had come into existence in 1980 itself for the purposes of joining the business of Hotel Marina as Partner. The defendant no. 1 as Kanta of defendant no. 2 entered into a family settlement and authorized the defendant no. 3 also impleaded as Karta of his HUF to execute dissolution deeds on behalf of defendant no. 1 as Karta of defendant no. 2 and the Partnership of Hotel Marina in which defendant no. 2 was a partner is dissolved vide Dissolution Deed Dated 15.05.1982. The Karta was well within his rights to agree to a dissolution of the Partnership of Hotel Marina. The plaintiff has no rights as in the partnership of Hotel Marina as a coparcenor of defendant no: 2, HUF, once the HUF ceased to be a partner. The plaintiff has no interest, right to any claim in the partnership of Hotel Marina even if the Partnership is reconstituted subsequently so long as the HUF of which the plaintiff is a copancenor is not inducted/ joined as a partner. It is therefore held that the plaintiff is left with no share in the partnership firm of M/s Hotel Marina after the family settlement dated 23.08.1980 and the defendant no: 1 acting as Karta of defendant no: 2 has through his duly constituted power of attorney retired from the partnership of Hotel Marina and the partnership of Hotel Marina stood dissolved by virute of Dissolution Deed dated 15.05.1981 of the free consent and volition of the defendant no: 1 acting as Karta of defendant no: 2 and the defendant no: 1 acted in pursuance of family settlement dated 23.08.1980 and not in any manner with mala fide to defeat the interest of the plaintiff coparcenor in defendant no: 2 HUF of which he was the Karta, and therefore, the Dissolution Deed dated 15.05.1981 is valid and binding on all the coparcenrors of defendant no:
2 HUF. Issues no: 8, 9, 10, 11 & 12 are decided against the plaintiff and in favor of the defendants.
19. It is the case set up by the plaintiff that defendants no. 1, 3 and 5 were the members of the HUF which provided the funds and resources laying down the financial foundation for M/s R.S. Avtar Singh & Company, a partnership firm of defendant no. 1, 3 and 5 which came into existence before the partition of the country and shifted to Delhi in 1951 whence the business was being run from 1/1, Rohtak Road, Delhi and M/s R.S. Avtar Singh & Company went on to purchase number of properties in Delhi and Mumbai and subsequently shifted its office at 19, Deepak 13, Nehru Place, New Delhi and amassed assets worth more than Rs. 200 Crores and all the properties such as bearing no. R73, Greater KailashI, New Delhi and B11, Greater KailashI, New Delhi were purchased from the ancestral funds by the said firm as also from the funds received after the sale of Plot No. 1/1, Rohtak Road, Delhi. The plaintiff claims entitlement to all the estates and assets of the said firm namely M/s R.S. Avtar Singh & Company, the firm being HUF firm having being created by the grandfather of the plaintiff, however, the suit of the plaintiff is not for declaration of any right, title or interest in the properties acquired by M/s R.S. Avtar Singh & Company or in the said firm as a coparcener of the HUF. The plaintiff, however, also volunteers to admit that for the betterment and due administration persons strangers to the HUF were inducted as partners in M/s R.S. Avtar Singh & Company, as is the defence raised by the defendant that M/s R. S. Avtar Singh and Company is a partnership constituted and reconstituted several times and it is not a HUF Form as not all the members of Kohli Family were not partnership in the firm and there were several partners who had no connection with the Kohli Family. The plaintiff has not claimed any relief in respect of the estate and properties of M/s RS Avtar Singh & Co, and it has not been established by the plaintiff that M/s R.S. Avtar Singh & Co. is a HUF firm. Issue no: 7 is accordingly decided against the plaintiff and in favor of the defendants.
20. The father of the plaintiff had instituted a suit for rendition of accounts / dissolution of the said partnership firm and for partition of properties bearing Suit No. 710/1981 in the High Court of Delhi. The plaintiff alleges that it was in the course of the proceedings of the said suit that the defendant no. 1 acquired the knowledge to his utter shock and dismay that the partnership has been dissolved vide dissolution deed dated 15.05.1981 and that the defendant no. 3 had signed the said Dissolution Deed as attorney of defendant no. 1. I fathom the reason for the plaintiff to introduce the elaborate backdrop in respect of M/s R.S. Avtar Singh & Company without setting up any cause for relief in respect thereof was the introduction of the allegation of fact imputing knowledge for the first time in respect of the impugned document which constitutes the subject matter of the present suit. The plaintiff alleges that at this shocking revelation the defendant no. 1 instituted the suit for declaration challenging the dissolution deed dated 15.05.1981 as also for rendition of accounts. This suit ended in a compromise / consent decree and the suit was withdrawn by the father of the plaintiff. This suit was registered as CS(OS) 820 of 1982 and was disposed of on 25.03.1983 on the statement of the father of the plaintiff. After 25.03.1983 when the father of the plaintiff had settled the dispute in respect of the Dissolution Deed dated 15.05.1981 vide which the partnership firm M/s Hotel Marina stood dissolved, the present suit setting up a challenge to the said dissolution deed is filed by the son of the plaintiff in CS (OS) 820 of 1982 by presenting the plaint in the registry of the Hon'ble High Court of Delhi on 03.01.2002. It is pertinent that no challenge of any manner whatsoever is set up to the withdrawal of the suit by the father of the plaintiff in terms of a compromise between the father of the plaintiff and defendants 3 to 5. The son of the plaintiff institutes the present suit impugning the dissolution deed dated 15.05.1981 on 03.01.2002 contending that as on 15.05.1981 the plaintiff was a minor and has attained majority on 20.12.1998 and has thereafter instituted the suit within the period of limitation. A suit for declaration of any nature is to be instituted within 03 years of the accrual of the cause of action. Minority, however, is a circumstance that arrests the running of time as a minor is under a legal disability to commence the proceedings. It is Section 6 of the Limitation Act that is relevant and is reproduced herein : "(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be recknoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefore in the third column of the schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has cased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as wold otherwise have been allowed form the time so specified.
(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the applicaton within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in subsection (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in subsections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceased but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died."
21. The deed of dissolution that the plaintiff impugns is dated 15.05.1981. There are several gronds of challenge set against the deed of dissolution dated 15.05.1981 which have been adverted to at the relevant stages in the discussion. It is pertinent that the suit challenging the dissolution deed dated 15.05.1980 is instituted by presentation of the plaint before the registry of the Hon'ble High Court of Delhi on 03.01.2002. The plaintiff at the time of the execution of the Deed of Dissolution was a minor, his date of birth being 20.12.1980. In terms of section 6 of the Limitation Act at the time of the accrual of the cause of action, the plaintiffs was under a legal disability. As per the own assertion of the plaintiff, the plaintiff attained majority on 20.12.1998. Section 8 of the Limitation Act provides that even where the person in whose favour a cause of action has accrued is under a legal disability, the suit for the said relief is to be brought within three years of cessation of legal disability. The statue provides as follows:
"8. Special exceptions. Nothing in section 6 or in section 7 applies to suits to enforce rights of preemption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application."
22. The suit was to be instituted by the plaintiff having attained majority on 20.12.1998 on 20.12.2001 whereas the suit is instituted on 03.01.2002. The plaintiff does not even bother to volunteer an explanation as to how the suit instituted on 03.01.2002 is within the prescribed period of limitation when the plaintiff attained majority on 20.12.1998. Once time begins to run no subsequent inability or disability stops the running of time. Even if, the suit is instituted one day after the running of the prescribed period of Limitation, the suit is necessarily time barred unless the plaintiff sets up exclusion and extension of time in terms of the several provisions of the Limitation Act.
23. The laws of limitation are founded primarily on public policy. In Halsbury's Law of England the policy of Limitation Act is laid down as follows "The court have expressed at least three different reasons supporting the existence of statutes of limitation namely (I) that long dormant claims have more of cruelty than justice in them (ii) that a defendant might have lost the evidence to dispute the stated claim (iii) that person with good causes of action should pursue them with reasonable diligence".
The doctrine of Limitation is based on two broad considerations, the first is that there is a presumption that the right not exercised for a long time is non existent. The second consideration on which principles of limitation and prescription is based is that it is necessary that the rights in property and rights in general should not be in a state of constant uncertainty, doubt and suspense. The statutes of limitation are known as statutes of repose or peace. The Hon. Supreme Court of India in various judicial pronouncement (Balkrishnana Vs. MA Krishna Murti 1998 Vol.7SCC123) has reiterated the object of fixing time limit for litigation and it is observed that the rules of limitation are not meant to destroy the rights of the parties but are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly because idea is that every legal remedy must be alive for a legislatively fixed period of time and law of limitation fixes a life span for legal injury suffered and it is for the general welfare that a period be put to litigation. It is the duty of the court to decide the question of limitation even if no such plea is raised by the defendant and so far as the case at hand is concerned, the defendant has raised a preliminary objection to the maintainability of the suit on the ground that the suit is time barred. The Limitation Act is intended to provide a time limit for all conceivable types of suits and all such suits have to be instituted within the period prescribed therein unless there is any ground for extension as is provided in the Act itself. The limitation Act is self contained and exhaustive and effect must be given to the provisions of the Act unhampered by the questions of expediency and the like. The principal of equity cannot be invoked to enlarge the period of limitation. There is no law of limitation outside the limitation Act except specific provisions contained under Limitation Act. As it is an exhaustive code, the court cannot travel beyond its provisions to add to or supplement them. The court has no general discretion outside the limits of Act to dispense with its provisions or to relieve a suitor from the operations of the Act on the ground of hardship or mistake.
Section 3 of the Limitation Act casts a duty upon the court to ensure that no suit, appeal petition is filed beyond the period of limitation prescribed and reads as under: "3. Bar of limitation (1) Subject to provisions contained in section 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2)For the purposes of this Act
(a) a suit is instituted • (I) in an ordinary case, when the plaint is presented to the proper officer; • (ii) in the case of pauper, when his application for leave to sue as a pauper is made; and • (iii) in the case of claim against the company which is beling wound up by the court when the claimant firs sends in his claim to the official liquidator;
b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted • I) in the case of set off, on the same date as the suit in which the set off is pleaded;
• ii) in the case of a counter claim, or the date on which the counter claim is made in the court;
(c) an application by notice of motion in a high Court is made when the application is presented to the proper officer of the court.
The onus is therefore cast upon the court to ensure that the suit, appeal, petition, application is instituted within the time frame provided under the limitation Act and parties cannot by agreement extend the period of limitation and it is immaterial whether an objection in this regard is taken by the opposite party or not. Section 3 of the limitation act enjoins upon the court to dismiss a suit that is instituted beyond the prescribed period of limitation subject to provisions contained in section 4 to 24 of the Limitation Act. Beyond the legal disability provided for under section 6 of the Limitation Act, the plaintiff has not invoked the shelter of any other provision of the Limitation Act. The plaintiff having attained majority on 20.12.1998 was required to have instituted the present suit within three years, in terms of section 8 of the Limitation Act, of his attaining majority, i.e. on or before 20.12.2001 whereas the suit of the plaintiff has come to be instituted on 03.01.2002. The suit of the plaintiff is therefore clearly time barred and liable to be dismissed as such. Issue no. 1 is, therefore, decided against the plaintiff.
24. Issue no. 2:
Whether the suit is bad for nonjoinder of necessary parties and if so, to what effect? (OPD3).
The plaintiff being the master of his own case the dominus litus may determine the reliefs premised upon specific cause of actions being claimed against one or several defendants. It is the prerogative of the plaintiff to join such causes of actions and party defendants against whom right to relief is being claimed in a suit provided that the plaintiff has included all the reliefs he has become entitled to claim against such defendants premised upon such causes of actions. The defendant no. 3 alleges that the plaintiff ought to have included all the members of the Kohli Family as party defendant however the defendant no. 3 has failed to demonstrate as to how the unnamed members of the Kohli Family are also necessary and proper parties. Onus being on defendant no. 3 in respect of Issue No. 2, it is decided against the defendant no. 3 and in favour of the plaintiff.
25. Issue no. 3:
Whether the suit is not properly valued for the purposes of Court fee? (OPD3).
The suit of the plaintiff is for declaration and rendition of accounts. Relief of declaration is to be valued at the discretion of the plaintiff and fixed Court Fees is payable as per Article 17 of the Schedule to the Court Fees Act where relief of possession is not being claimed. So far as rendition of accounts is concerned, the valuation was tentative and the plaintiff had undertaken to pay the Court Fees on the accounts rendered as per his share. In terms of the findings returned on issues no: 1, 5 to 12, the plaintiff is not entitled to any relief of declaration or rendition of accounts as claimed. No accounts are to be rendered and apportioned there is no infirmity in the valuation carried out by the plaintiff. Issue No. 3 is accordingly decided in favour of plaintiff and against defendant no. 3.
26. Issue no. 4:
Whether the suit is without any cause of action qua defendant no. 8 and if so, to what effect? (OPD8).
The defendant no. 8 is impleaded as party defendant as the defendant no. 8 was the signatory as partner to the impugned dissolution deed. It is therefore cannot be said that the suit of the plaintiff for setting aside of the dissolution deed is without any cause of action against defendant no. 8. This issue is decided against the defendant no. 8 and in favour of the plaintiff.
27. Relief In view of the discussion above and as a consequence of the issue wise findings returned it is held that the plaintiff is not entitled to a decree of declaration as prayed for or to a decree of rendition of accounts in respect of the Partnership of Hotel Marina. The suit of the plaintiff for declaration and rendition of accounts is also held to be timebarred. The suit of the plaintiff is accordingly dismissed with costs awarded in favour of defendants no. 3 and 8.
Decree sheet be prepared accordingly.
File be consigned to RecordRoom.
Pronounced in the open Court (Neelofer Abida Perveen)
nd
on the 02 , April 2018. Addl. District Judge04,
SouthEast, Saket Court,
New Delhi.
The judgment contains 60 pages all checked and signed by me.