Calcutta High Court
Narendra Kumar Berlia vs Om Prakash Berlia & Ors on 18 April, 2011
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 1138 of 2011
CS No. 79 of 2011
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
NARENDRA KUMAR BERLIA
Versus
OM PRAKASH BERLIA & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 18th April, 2011.
Appearance:
Mr. Abhrajit Mitra, Adv.
Mr. Sarvapriya Mukherjee, Adv.
Ms. Rekha Ghosh, Adv.
..For the plaintiff.
Ms. Debamitra Adhikari, Adv.
Mr. Subhankar Nag, Adv.
..for the defendant no.3 Mr. S. Talukdar, Sr. Adv.
Mr. S. R. Kakrania, Adv.
..for the defendant nos.1 & 2 Mr. S. N. Mookerji, Sr. Adv.
Mr. Tarun Aich, Adv.
..For the defendant no.6 Mr. Sakya Sen, Adv.
Mr. A. K. Dey, Adv.
..for the defendant no.7 Mr. Sabyasachi Chowhdury, Adv.
Mr. A. K. Dey, Adv.
..for the defendant no.14 The Court : The suit is for partition. The plaintiff claims to be a member of the Berlia family and says that all business and assets of 2 the family remain joint and they were set up by the father of the plaintiff, Gurdayal Berlia. Some of the individual defendants are the brothers of the plaintiff.
The defendant no.3 is represented and it is submitted that the defendant no.3 is in control of the defendant nos.15 and 16 companies and that such companies do not form part of the family assets.
The plaintiff instituted CS No.12 of 2009 against the same defendants with leave under Order I Rule 8 of the Code of Civil Procedure claiming that earlier action to be a derivative action for and on behalf of the shareholders of certain family companies. The plaintiff also sought partition of the family assets. In particular, reliefs
(a) to (e) and (o) of the previous plaint specified as such.
On an interlocutory application in the earlier suit being taken up for final hearing, it was noticed that the frame of the suit was as in a derivative action though the plaintiff had sought to sue on behalf of several of the defendants companies. A doubt was expressed in the judgment of April 6, 2011 as to whether several companies could be made the subject-matter of the same action in such a case. However, the judgment found that the plaintiff's claim of partition was incompatible with the form of the action and, as such, the subsisting order of injunction in that suit, which had all along been treated as a partition suit, was vacated.
3
The plaintiff says that the plaintiff is not desirous of pressing reliefs (a) to (e) and (o) of the previous plaint. The plaintiff says that an application in such regard has been filed. The defendant no.6 company, which has also been the principal contestant in the other suit, says that once a suit has been instituted with leave under Order I Rule 8 of the Code, no part of the claim can be abandoned without previous leave of Court. The defendant no.6 suggests that till such time that the plaintiff's application to abandon a part of the claim in the previous suit is allowed, the interlocutory orders sought in this subsequent suit should not be taken up.
The defendant no.6 also refers to paragraph 81 of the petition relating to the present application. There are two other paragraphs which have been referred to at paragraph 81: paragraphs 74 and 77. The nature and extent of the partition that has been sought is indicated in the two sub-paragraphs of paragraph 81. The defendant no.6 submits that it is only the shareholding of the Berlia family members over which the plaintiff has asserted any right and the plaintiff has also sought to claim that the properties standing in the names of the members of the Berlia family are joint and the plaintiff is entitled to a share therein. What the defendant no.6 says is that since it does not appear from the paragraph 81 of the petition that the assets and properties of the alleged family companies are also claimed 4 to be assets and properties of the Berlia family over which the plaintiff has some manner of right, the immediate order sought for restraining the defendant nos.6 to 18, which are the alleged family companies, from dealing with their assets, should not be entertained.
It would be evident from the orders passed in the previous suit that the order of injunction in respect of the properties - or, at any rate, in respect of the valuable Thane property which is owned by the defendant no.6 herein - continued for a substantial period. Such order of injunction was vacated not on an assessment of the plaintiff's substantive claim relating thereto but merely on the ground that the claim for partition made in a derivative action was anathema to the form of the action.
The substantive defence taken by the defendant no.6 can be considered at a later stage. Since the earlier order of injunction continued for nearly two years, there will be an order of injunction restraining the defendant nos.6 to 18 from transferring or alienating or otherwise encumbering any of their fixed assets without previous leave of Court. The defendant nos.6 to 18 are also restrained from changing the shareholding composition therein without previous leave of Court.
The plaintiff is also restrained from dealing with or disposing of or alienating any of the properties standing in the plaintiff's name or those otherwise under the control of the plaintiff. 5
Affidavit-in-opposition be filed within a fortnight from date; reply thereto, if any, may be filed within a fortnight thereafter. The matter will appear as an adjourned motion in the monthly list of June, 2011.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) bp.
A.R(C.R)