Calcutta High Court (Appellete Side)
Indranil Mukherjee vs Jayeeta Mukherjee (Nee Bhattacherjee) ... on 21 December, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Hon'ble The Acting Chief Justice Jyotirmay Bhattacharya
And
Hon'ble Justice Sahidullah Munshi
F.M.A. No. 1291 of 2017
Indranil Mukherjee.
Vs.
Jayeeta Mukherjee (Nee Bhattacherjee) & Ors.
For the Appellant : Mr. Anindya Lahiri, Adv.
Mr. Samrat Dey Paul, Adv.
For the Respondent No.1 : Mr. Uday Sankar Bhattacharya, Adv.
Mr. Partha Sarathi Das, Adv.
For the Respondent no.12 : Ms. Pranati Das, Adv.
For the Respondent No.3 : Ms. Sayani Roy Chowdhury, Adv.
For the Respondent no. 5 : Mr. Dipanjan Datta, Adv.
To 9 Ms. Paromita Malakar Dutta, Adv.
Mr. Atanu Basu, Adv.
Ms. Reshma Chatterjee, Adv.
Heard on : 6.12.2017, 7.12.2017 and 14.12.2017
Judgment on : 21st December, 2017
Jyotirmay Bhattacharya, ACJ.:
This First Miscellaneous Appeal is directed against an order being No.15 dated 30th January, 2017 passed by the learned Civil Judge (Senior Division) 2nd 2 Court at Barasat in Title Suit No. 707 of 2016 at the instance of the plaintiff/appellant.
By the impugned order the plaintiff's application for temporary injunction was rejected by the learned Trial Judge. As such the instant appeal was filed.
This appeal was admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. It is now placed for hearing before this Court.
Let us now consider the merit of the instant appeal in the facts of the present case.
The parties are closely related to each other. The plaintiff is the husband of the defendant no.1 and the defendant no.2 is the father-in-law of the plaintiff. The marriage between the plaintiff and the defendant no.1 was solemnized on 7th July, 2003 as per Hindu Marriage Act, 1955 and their social marriage took place on 20th November, 2003. The plaintiff is a qualified Chartered Accountant. He had been serving at Haldia Petrochemicals Ltd. at the material time. He used to draw healthy amount as salary. He purchased one flat at New Town, described in Schedule B being item No.3 in the joint name of the plaintiff and the defendant no.1. The plaintiff has also invested some money for purchasing the share in Abahan Housing Cooperative Society Ltd. to the extent of proposed flat being no. 2D to be measured around 1200 sq.fts. in the name of his wife for the benefit of his son. He also invested some money in purchasing share in Abahan Housing Cooperative Society Ltd. to the extent of proposed flat bearing No.7D, to be measured around 1200 sq.fts. in the name of his father-in-law for the benefit of his daughter. To secure the future of the defendant no.1 and his future offspring 3 the plaintiff had invested substantial income from his salary in different types of accounts in various banks held by him jointly with his wife or father-in-law. The investments which are mentioned in Schedule AI of the plaint were made by the plaintiff to secure the future of his wife and his children. Some investments were also made by him in fixed deposit in the name of his wife in Union Bank of India with an idential idea of securing the future of his wife and children. Particulars of those deposits are mentioned in Schedule A2. He also invested some money either in fixed deposits or in savings bank account in Axis Bank in his own name along with his father-in-law, the defendant no.2. Particulars of those deposits are mentioned in Schedule A3.
It is alleged by the plaintiff that while the plaintiff was in jail custody from 7th July, 2015 to 17th July, 2015 in connection with GR Case No.610 of 2015 arising out of Bidhannagar (south) P.S. Case No. 102 of 2015 dated 7th July, 2015 huge amount of money was withdrawn by the defendant nos. 1 and 2 from the aforesaid bank accounts which were held by the plaintiff jointly either with his wife and/or with his father-in-law and most of such money withdrawn by the defendant no.1 (wife) was invested by her in fixed deposits in her own name. Details of such investments which were made by the defendant no.1 either in the savings bank account or in the fixed deposits after withdrawing the same from the joint account of the plaintiff and the defendant no.1 are mentioned in Schedule A5. Valuable articles including jewellary and ornaments of the deceased mother of the plaintiff as well as of the plaintiff which were kept in the locker in the joint name of the plaintiff and the defendant no.1 in Axis Bank were 4 also withdrawn by the defendant no.1 by operating the said bank locker herself. The plaintiff claims that all such investments either in the bank deposits or in the properties as mentioned above were made out of the income of the plaintiff and the defendant nos. 1 and 2 had no contribution in such investments. As such the plaintiff filed the instant suit praying for declaration of his absolute ownership in respect of the investments made by him in different accounts and also in the investments made by the defendant nos. 1 and 2 in their accounts with the money siphoned from the joint account of the parties. He has also prayed for decree for permanent injunction for restraining the defendants no. 1 and 2 from withdrawing any further amount from the joint accounts and/or single account as mentioned in the schedules of the plaint and also for restraining them from encashing any further money from the fixed deposits and/or other account lying jointly with the plaintiff or in single name of the defendant nos. 1 or 2 respectively and also for restraining them from transferring or alienating the property as mentioned in Schedule B to any third party. A Decree for mandatory injunction has also been prayed for against the defendants with a direction upon them to refund the entire amount which the defendants no.1 and 2 had already withdrawn from the joint accounts held with the plaintiff and also lying in the account standing in the single name of the defendants no 1 or 2. Some other incidental reliefs have also been claimed by the plaintiff in the said suit.
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After filing the said suit, the plaintiff filed an application for injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure, inter alia, praying for temporary injunction against the defendants and for restraining the defendants no. 1 and 2 from withdrawing any further amount from the joint account and /or single account as mentioned in the Schedule of the injunction application and also for restraining them from withdrawing any further amount by encashing the fixed deposits as well as the other accounts either lying jointly with the plaintiff or lying in the single name of the defendants no. 1 or 2 and also for restraining the defendants no. 1 and 2 from transferring or alienating any of the B Schedule property in favour of the third party. Ad interim injunction in similar form was also prayed for by the plaintiff in the said application.
The plaintiff's prayer for ad interim injunction, having been rejected by the learned Trial Judge, the plaintiff earlier filed a miscellaneous appeal being FMAT No. 1008 of 2016 which was disposed of by the other Division Bench of this Court on 21st November, 2016 by restraining the defendant no.1 from operating the bank account and/or encashing the fixed deposit as mentioned in Schedule A2 and A5 of the injunction application till the disposal of the plaintiff's application for temporary injunction. The respondent no.1 was also restrained from dealing with the allotments of share in Abahan Housing Cooperative Society Ltd. in the plot of lands bearing no. CC-23, as mentioned in Sl. No.1 under Schedule B of the injunction application. The respondent no.2 was also restrained from dealing with the share in Abahan Housing Cooperative Society Ltd. in the plot of land bearing no. CC-23, Action Area- I, New Town, Calcutta till 6 the disposal of the plaintiff's application for temporary injunction. Time bound direction was given upon the parties to file their respective affidavits in connection with the injunction proceeding and the learned Trial Judge was requested to dispose of the plaintiff's application for temporary injunction within a time bound period.
Pursuant to such direction passed by this Court, the defendants no. 1 and 2 filed affidavit-in-opposition to the plaintiff's application for temporary injunction by denying the allegations made by the plaintiff in the application for injunction evasively. Excepting general denial of the plaintiff's allegations made in the injunction application, no positive case was made out by the defendants to assert that they had independent income of their own and out of their own independent income they invested the money either in the fixed deposit or in the savings bank account in their own name.
The learned Trial Judge dismissed the plaintiff's said application for temporary injunction by holding, inter alia, that the plaintiff has failed to establish that the defendant no.1 withdrew huge amount of money from the salary account of the plaintiff which was held jointly by the plaintiff and the defendant no.1, during the period when he was in jail custody from 7th July, 2015 to 17th July, 2015. The learned Trial Judge also held that the plaintiff has failed to establish that the investments which were made by the defendants no.1 and 2 either in their independent account or in fixed deposits, were made by siphoning the money from the joint account of the plaintiff which he held either with the defendant no.1 or with the defendant no.2. It was also held that the 7 plaintiff has also failed to establish any cogent document in respect of his title over Schedule A6 and Schedule B of the injunction application. The learned Trial Judge, thus, held that the plaintiff has failed to prove that the property mentioned in Schedule A and Schedule B belonged to the plaintiff. Considering the balance of convenience and inconvenience of the parties, the learned Trial Judge expressed his opinion that if at this stage defendants no. 1 and 2 are restrained from operating their own account, it may cause inconvenience to them and they may also suffer irreparable loss and injury. Holding as such, the plaintiff's application for temporary injunction was rejected by the learned Trial Judge.
The instant First Miscellaneous Appeal is directed against the judgment and order passed by the learned Trial Judge. This appeal was admitted for hearing on 3rd April, 2017 and after the appeal was admitted an interim order was passed by restraining the defendant no.1 from operating bank account and encashing any further fixed deposit as mentioned in Schedules A2, A3 and A5 of the injunction application till the end of May, 2017 or until further orders whichever was earlier. The parties were also directed to maintain status quo with regard to their shares in the Abahan Housing Cooperative Societies Ltd. and or their interest in the property as mentioned in Schedule B or the injunction application till the end of May, 2017 or until further orders whichever was earlier. The said injunction was extended from time to time and the same is still in operation.
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Let us now consider as to how far the learned Trial Judge was justified in rejecting the plaintiff's application for temporary injunction in the facts as stated above.
On perusal of the pleadings of the parties as well as the documents annexed to the application for injunction, we have no hesitation to hold that the plaintiff was a salaried person having healthy income and his salary was deposited periodically in his savings bank account which he held jointly with his wife with the Axis Bank Ltd. Particulars of his salary account and other investment which he made in Axis Bank Ltd in various deposits jointly with his wife are mentioned in Schedule A1 of the injunction application. Investments of his money either in the fixed deposit or in the savings bank account with in the Axis Bank or with the Union Bank of India can very well be traced out from the personal income of the plaintiff. Withdrawal of huge amount of money by the defendant no.1 from the joint account of the plaintiff and the defendant no.1 during the period when the plaintiff was in jail custody is apparent from the banks documents itself. Investments of money by the defendant no.1 either in the fixed deposit or in the savings bank account in her own name can be traced out from the salary account of the plaintiff wherefrom she withdrew substantial amount of money, during the period when the plaintiff was in his jail custody. Withdrawal of money by the defendant no.2 from the joint account of the plaintiff which he held with the defendant no.2 during the relevant period, can also be detected from the bank account of the plaintiff. However, how he utilised such siphoned money cannot be traced out.
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Be that as it may, it is not the case of any of the defendants that they had independent income and they invested their self-earned money in their own name either in the fixed deposit or in the savings bank account. The defendant no.1 (wife) had no independent source of income. She claimed alimony for her own maintenance by filing an application under Section 125 of the Criminal Procedure Code against her husband, which itself will prove that the defendant no.1 had no independent income to invest.
Thus, if totality of these facts are taken into consideration then we have no hesitation to hold prima facie that the money lying in different accounts as mentioned in Schedule A of the injunction application are the investments of the plaintiff out of his salaried income credited to his salary account which he held jointly with his wife.
Mr. Bhattacharya, learned advocate appearing for the defendant, however, claims that since the plaintiff himself claimed that all the investments were made by the plaintiff to protect the future of the defendant no.1 and their children, the plaintiff is not entitled to get ultimate relief in the suit in view of the provision contained in Sections 3 and 4 of the Benami Transactions (Prohibition) Act 1988. He, thus, contended that if the ultimate relief which is claimed by the plaintiff in the suit cannot be granted to the plaintiff, no interim relief can be granted to the plaintiff in the said suit. He further argued that the plaintiff's claim for injunction is barred under Section 41(g) of the Specific Relief Act. He also submitted that an application for rejection of the plaint due to the bar in maintaining such suit under Sections 3 and 4 of the said Act has also been filed 10 by the defendant in the Trial Court and the said application is still pending for consideration before the Trial Judge.
To support his claim that the suit is not maintainable as the plaintiff himself claimed that all such investments were made by the plaintiff in the name of his wife for the benefit of his wife and his children, he relied upon the following decisions:
(i) In the case of Nand Kishore Mehara Vs. Sushil Mehara reported in (1996) 1 BLJR page 3.
(ii) And in the case of Shanthi and ors. Vs. M. Masanam reported in (2015) 4 Madras Law Journal page 268.
Relying upon the aforesaid decisions, he thus contended that since in the instant case it is admitted by the plaintiff that all such investments, either standing in the joint name of the plaintiff and the defendant no.1 or in the name of the plaintiff jointly with the defendant no.2, were made by the plaintiff for the benefit of his wife and his children, the instant suit is not maintainable due to bar created under Section 4 of the Benami Transactions( Prohibition) Act 1988.
We have given anxious consideration to the pleadings of the respective parties as well as the decision cited at the bar while deciding the merit of the instant appeal. Here is the case where we find that the investments mentioned in Schedule A1 were all made by the plaintiff out of his own income though such investments were made by him in his amount which he held jointly with his wife viz. the defendant no.1. Thus, the concept of benami trasanctions cannot be applied to such deposits as it is not a case where the plaintiff being the husband 11 invested such money in the name of his wife alone for her benefit only. The investments which are mentioned in Schedule A3 were also made by the plaintiff in joint account held by him with his father-in-law. These investments cannot be regarded as benami trasanction within the meaning of benami Trasanction as defined in the said Act, as these investments were not made in the name of his father-in-law exclusively. Had it been a case that such investments were made by the plaintiff in the exclusive name of his wife and/or his father-in-law being the beneficiaries thereof, the concept of benami trasanctions could have been imported. As such, prima facie we are of the view that the reliefs which the plaintiff has claimed for declaring his ownership in respect of such deposits cannot be hit by the provision of Section 4 of the Benami Trasanctions (Prohibition) Act, 1988.
However, we find that some deposits are lying in the name of the defendant no.1 or in the name of the defendant no.2. The deposits in the name of the defendant no.1 are mentioned in Schedule A2 and A5 of the injunction application. It is alleged by the plaintiff that those deposits were all made by the defendant no.1 after withdrawing the money lying in the joint account of the plaintiff which he held with the defendant no.1. The defendant has failed to show that the said defendant has any independent income. The said defendant has also failed to prove that such investments were made by her in her own name with her own money. Siphoning of the money from the joint account of the plaintiff which he held with the defendant no.1 and investments thereof by the defendant no.1 in her name can very much be detected from the bank 12 statements annexed to the injunction application. Thus, this is not a case where the plaintiff invested such money in the name of the defendant no. 1 for her benefit and thereby the bar in filing a suit created under Section 4 of the Benami Trasanctions (Prohibition) Act, 1988 can be attracted. The decisions cited by Mr. Bhattacharya are distinguishable on facts as those were the cases where the real owner invested money in the name of his wife exclusively for her own benefit, unlike the present case where we find that the plaintiff invested huge money in different schemes with various banks in the joint name of the plaintiff and his wife and/or his father-in-law and such deposits were made with an idea of protecting the future of the wife and his children and not for the benefit of the wife alone.
We, thus, cannot accept the submission of the learned advocate appearing for the defendant/respondent that the reliefs which the plaintiff has claimed in the said suit is barred by the provision contained in Section 4 of the said Act and as such the interim relief cannot be granted in the said suit.
The money which is lying in the joint account held by the plaintiff along with the defendant no.2 as mentioned in Schedule A3 is not claimed by the defendant no.2 as his investments made out of his own income. The salary account of the plaintiff which he held with his wife clearly indicates that the investments which were made by the plaintiff in his name along with his father- in-law as mentioned in Schedule A3 were all made out of the savings available in the joint account of the plaintiff which he held along with his wife. As such, this Court has no hesitation to hold that the plaintiff has proved prima facie that the 13 money which is available in different account either in the nature of fixed deposit or in the savings bank account as mentioned in Schedules A1, A2, A3 and A5 were all invested by the plaintiff from his own money in which the defendants had no contribution. The concept of benami trasanction cannot be imported in the facts of the present case.
While disposing of the plaintiff's application for temporary injunction the learned Trial Judge did not consider at all the plaintiff's claim for title over the investments as mentioned in Schedule A1, A2, A3 and A5 of the injunction application.
We, however, agree with the learned Trial Judge that the plaintiff has failed to submit any cogent document in respect of the title over the articles and other valuable ornaments jewellaries as mentioned in Schedule A6 of the injunction application.
With regard to the properties mentioned in Schedule 'B' we find that plaintiff claimed to have purchased the share and/or interest in the housing for purchasing two proposed flats; one in the name of his wife and another in the name of his father-in-law. These investments were made for acquiring two flats, one of which he intends to give to his son and the other one, he intends to give to his daughter. Thus, the defendant nos.1 & 2 are held as mere trustees who will hold these flats for the benefit of the plaintiff's children.
Admittedly the flat being Sl. No. 3 in B Schedule property was purchased by the plaintiff in the joint name of the plaintiff and his wife. As such the concept of benami trasanction and/or maintainability of the suit due to bar 14 under Section 4 of the Benami Trasanctions (Prohibition) Act, 1988 relating to the properties mentioned in schedule 'B' cannot be attracted in the facts of the instant case.
We also cannot agree with the learned advocate appearing for the respondent that the reliefs which were claimed by the plaintiff is bar under Section 41(g) of the Specific Relief Act.
This Court thus hold, that not only strong prima facie case has been made out by the plaintiff but balance of convenience and inconvenience in wholly in favour of granting injunction inasmuch as if the money which the plaintiff has saved for protecting the future of his wife and children are either lost or misused, then the future of the wife and children will be at stake and/or unsecured.
We thus, hold that this is a fit case where injunction should have been passed by the learned Trial Judge so that the defendants are restrained from withdrawing and/or siphoning any amount of money lying in the various deposits of different descriptions either in the joint name of the plaintiff and his wife and/or in the joint of the plaintiff and his father-in-law or from withdrawing any money lying in the fixed deposit or savings bank account in the name of the defendant no.1 alone.
This Court thus disposes of this appeal by setting aside the impugned judgment and order and by restraining the defendant no.1 from operating the 15 bank account and encashing any fixed deposits mentioned in Schedule A1, A2 and A5 of the injunction application till the disposal of the suit. The respondent no.2 is also restrained from operating the bank account as mentioned in Schedule A3 of the injunction application till disposal of the suit. The parties are also directed to maintain status quo with regard to their share in Abahan Cooperative Housing Society Ltd. and/or their interest in the property as mentioned in Schedule B of the injunction application till the disposal of the suit.
The appeal and/or applications filed in connection therewith are all disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, ACJ.) I agree.
(Sahidullah Munshi, J.)