Bangalore District Court
Sri.E.Krupashankar Rao vs M/S Bangalore Dress on 19 July, 2017
IN THE COURT OF THE XII ADDL. CITY CIVIL AND SESSIONS
JUDGE, AT BANGALORE
PRESENT:SRI.SHUBHAVEER.B, B.Com.,LL.B.,
XII ADDL.CITY SESSIONS JUDGE
(CCH.No.27), BANGALORE
DATED THIS THE 19TH DAY OF JULY, 2016
O.S.No.6591/2010
Plaintiff:- Sri.E.Krupashankar Rao,
Aged about 62 years,
S/o late Sri.K.S.Eshwar
Rao, R/at No.12/3,
Lalbagh Road, (No.22,
Mission Road),
Bangalore.
(By J.B.N, Advocate)
-VS-
Defendants:- 1. M/s Bangalore Dress
Manufacturing Co.Ltd.,
A Company incorporated
under the Companies
Act and having its office
at No.12, Lalbagh Road,
Bangalore-560 002.
Represented by its
Managing Director,
2. Mr.K.V.Chandramohan,
2 O.S.6591/2010
Aged about 66 years,
S/o Late Sri.K.S.Vittal
Rao, No.12, Lalbagh
Road, Bangalore-560
002.
(Defts.1&2 - Sri.HEH-
Advocate)
Date of Institution of the suit : 17-09-2010
Nature of the suit : Permanent Injunction
Date of commencement of
recording of the evidence : 09-08-2011
Date on which the Judgment was
pronounced : 19-07-2017
Total Duration Years Months Days
: 06 10 06
(SHUBHAVEER.B)
XII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The above suit is filed for the relief of permanent injunction restraining the defendants, or anyone claiming under, or through them; from interfering with plaintiff and his tenants from taking their vehicle into the schedule 'A' property and also parking their vehicles in the open space in the schedule 'A' property.
3 O.S.6591/2010
2. In order to avoid repetition, allegations made in plaint are reproduced as they are. M/s K.H. Shamarao & sons is a partnership firm of the family of late Sri.K.H.Shamarao, which initially consisted of five partners, namely-Sri.K.S.Najunda Rao, Sri.K.S.Eshwar Rao (father of the plaintiff), Sri.K.S.Hanumatha Rao, Sri.K.S.Vittal Rao and Sri.B.S.Bhuarmoji Rao, who is the son-in-law of Sri.K.H.Shama Rao. The partnership provided that in the event of death of any one of partners, then the firm shall be reconstituted taking male descendants of the deceased partner as partner of the firm. The said partner ship firm was constituted under a deed of partnership some where in the year 1944 and has been reconstituted on several occasions. That the Plaintiff was represented by his brother, Sri.lE.Hanumatha Rao (now deceased), till 1983 and as such, the reconstitution, if any, effected post 1983 does not bind the plaintiff, as the plaintiff has withdrawn the power which the plaintiff had given to his brother in 1983 and thereafter, the plaintiff has not signed any deed of Reconstitution of the said M/s K.H.Shamarao & sons and the reconstitution of the said firm post 1983 does not bind the plaintiff. 4 O.S.6591/2010 Thereafter for the alleged reconstitution effected by other partners of M/s K.H.Shama Rao & Sons, the plaintiff is not a party and as such, such reconstitution, if any, does not bind the plaintiff.
3. That M/s K.H.Shama Rao & sons, owned several immovable properties, including a vacant property, bearing No.12, Lalbag Road, Bangalore, measuring about 5 and ½ acres, which is described in the schedule "A" being the portion remaining after a portion of that property was sold by M/s K.H.Shama Rao & Sons to M/s Bharath Earth Movers Ltd. When a portion of property No.12, Mission Road Bangalore, was planned to be sold to BEML, the plaintiff objected to the same and at that point of time, to obtain consent of the plaintiff, the partners of M/s K.H.Shama Rao & Sons, who also happen to be directors of the first defendant, agreed to pay certain amounts to the plaintiff and also gi9ve certain amounts to the plaintiff and also give certain properties, vide Agreement, dated: 30-7-1986 and when the said Agreement was not complied with in its entirety, but only in part, the plaintiff herein filed O.S.No.4341/1989, on the file of this Court against all the signatories of the said Memorandum of Understanding 5 O.S.6591/2010 and the said suit was decreed in part, by a judgment and decree ,dated: 1-4-2010. In this suit, as held by this court the plaintiff has got a right in the assets of M/s K.H.Shama Rao & Sons and he cannot be excluded from the same.
4. That M/s K.H.Shama Rao & Sons had, under an Agreement of lease for building, dated: 31-5-1964, given on lease partition of the aforesaid property to the first defendant and as such, the first defendant is a tenant in respect of only the built up portions of the said schedule "A' property and the rest of the open space does not belong to and is not in the possession of the first defendant and same is for the common benefit and enjoyment of all the partners of M/s K.H.Shama Rao & Sons and their family members.
5. The portions of the schedule "A" property under several documents have been given to several members of the family of M/s K.H.Shama Rao & Sons and as such, the plaintiff is in possession of the portion, measuring 3416 Sq.ft, bearing No.12/3, Lalbag Road, Bangalore. (22, Mission Road, Bangalore) consisting of residential unit, so also non residential unit.
6 O.S.6591/2010
6. When things stood thus, the first defendant company of which, few of the partners of M/s K.H.Shama Rao & Sons, who are inimically disposed towards the plaintiff, are the directors, wanted to block the access to the plaintiff and to his tenants into the said premises which is through the gate of the schedule "A' property on its southern side, facing Mission Road and through the gate on the eastern side from Sampangiramangar side and also wanted to prevent the plaintiff and his tenants in parking their vehicles in the open space and for that purpose had filed O.S.No.15153/2001 on the file of this Court and sought for an order of injunction to restrain the plaintiff and his tenants from using the common passage and also from parking their vehicle. This court concluded that the first defendant has right only in so far as the built up portion as is identified in the sketch, annexed to the Deed of lease, dated.31-5-1964, being the schedule "B' property and the first defendant does not have any right over the remaining portions. This finding of this court, dated:21-3-2001, which was not challenged by the first defendant, has become final and is 7 O.S.6591/2010 binding. The first defendant ultimately having realized that it did not have any scope, withdrew the suit in O.S.No.15153/2001.
7. When things stood this, after judgment was passed in O.S.No.4341/1989, which was adverse to the directors of the first defendant and also adverse to the partners of M/s K.H.Shama Rao & Sons and in favour of the plaintiff, few of the directors of the first defendant, more so the second defendant, who are inimically disposed towards the plaintiff, have now decided to block the access to the plaintiff to his residential portion, illegally on 30-8-2010 and also access to his tenants and for that purpose, have instructed the security guards, engaged by the first defendant, to man the gates on the southern side and also on the eastern side of schedule 'A' property and not to allow selectively the vehicles of the plaintiff and his tenants into the schedule "A' property, through the gate on the southern side and the eastern side and also prevent them from parking their vehicles in the open space of the schedule 'A' property. Hence the suit.
8 O.S.6591/2010
8. In the written statement of defendants, except admitting that M/s K.H.Shama Rao & Sons is a registered partnership firm having its office No.12, Lalbaghh Road, Bangalore and the plaintiff is entitled for ingress and aggress to his property from southern gate (Lalbagh road) as well as the plaintiff and his tenant have been using the said gate for several years; denied all other allegations made in the plaint.
9. The defendants contend that M/s K.H.Shama Rao & Sons is a registered partnership firm having its office at No.12, lalbagh Road, Bangalore, which is the absolute owner of the suit schedule "A' property. The defendant No.1 and 2 are the partners of the said partnership firm. The first defendant is holding 40% share and the 2nd defendant is holding 4% share in the said partnership firm.
10. The first defendant is a private limited company incorporated under the Companies Act, 1956, having its office at No.12, Lalbag Road, Bangalore. The second defendant is the Managing Director of the first defendant company.
9 O.S.6591/2010
11. The first defendant is the lessee under the partnership firm M/s K.H.Shama Rao & Sons and is in possession of the suit schedule "A" property from the year 1964 by virtue of the lease deed entered into between the firm and the first defendant, under a registered lease deed, dated 31-5-1964.
12. The firm renewed the lease in respect of the suit schedule- A property from time to time under various lease deeds and the defendant No.1 has developed the same and have let it out to various tenants. Under the said lease deeds the defendant No.2 is in possession of the suit schedule-A property as a lessee and continues to be a lessee under the latest registered lease deed, dated 11-4-2007.
13. The plaintiff is just a share holder having 3 % share in M/s K.H.Shama Rao & Sons and not a partner which he falsely claims to be as. In fact the plaintiff herein when was called to attend the meeting, at the time of reconstituting M/s K.H.Shama Rao & Sons, failed to attend and also in spite of several request made by the other partners asking him to co-operate for the development of the firm he never co- 10 O.S.6591/2010 operated and always tried to create trouble to the other owners. Subsequently barring the plaintiff herein and setting aside his share of 3%, all the partners of the newly reconstituted firm leased the entire property with buildings and open land to the defendant No.1 herein.
14. The plaintiff being a very small minority, i.e. having 3% of the share in the firm, must adhere the laws, motion etc., passed by the defendant, who constitutes and holds the share of nearly 94% of the firm. So as to maintain peace and harmony and also as he is not a partner, nor a director, he must and should abide by the majority decision. In fact in O.S.No.3671/1988, while passing on order on I.A. filed by the plaintiff herein, the court had observed that "applicant is very much in minority compared to that of other defendants i.e., including the defendant No.1 and 2 herein and also great hardship will be caused.
15. That the lease of the suit schedule-A property is for a period of 5 years, commencing from 2.4.2007, with an option of the 11 O.S.6591/2010 defendant No.1 (Lessee) to renew for a further period by mutual consent of the parties to the lease deed. The said lease consists of open land and the building existing in the suit schedule-A property.
16. Under the lease deed all the partners of the firm are permitted to use the passage leading from the public road (Lalbag road) to the factory premises, in common with the residents and tenants, with intent to have ingress and egress to their respective properties.
17. The defendants submit that in order to facilitate free ingress and egress and also in order to ensure that the directors, their family members and the defendant No.1, company's tenants; are provided with parking space, the defendant has reserved exclusive parking space for them. It would not be out of place to mention that the directors of the defendant No.1 Company have their residential accommodation adjacent to the passage. The plaintiff is not a director in the defendant company, nor a partner in the lessor firm.
18. The plaintiff has ample parking space in his own property, bearing No.12/3 (New No.22), Mission Road and that he, along with his 12 O.S.6591/2010 personal tenants, cannot park their vehicles in the road, drive way, or anywhere, in the area leased to the defendant No.1
19. The plaintiff is the owner of the property, bearing No.12/3 (New No.22), Lalbagh Road, Bangalore and is entitled for ingress and egress to his property only from the southern gate (lalbagh road) to have access to his property. The plaintiff and his tenants have been using the said gate for several years.
20. The plaintiff, taking advantage of the ingress and egress provided to him to have access to his property attempted to park his vehicles and also induced his tenants to wrongfully park their vehicles in the passage/drive way, vacant land; adjacent to passage and drive way from the southern gate (Lalbagh road of the suit schedule-A property) without any right, or permission, given by the defendants. The said act of the plaintiff is causing great disturbance and inconvenience to the defendants and its sub lessees, who are using the passage and drive way of southern gate (Lalbag Road) to have access to their respective properties.
13 O.S.6591/201021 The plaintiff, or his tenants, do not have any manner of right whatsoever to park their vehicles in the passage, or drive way of the suit schedule -A property, which has been leased to the defendant No.1 by the Firm, except for using the drive way for ingress and egress to have access to their property.
22. The plaintiff also filed re-joinder denying the contentions taken by the defendants in their written statement.
23. From the pleadings the followings issues are framed.
ISSUES
1. Whether the plaintiff proves that he has a right in the assets of M/s K.H.Shama Rao & Sons and has a share in the assets of M/s K.H. Shama Rao and sons?
2. Whether the plaintiff proves that the defendants attempted to block the access to the plaintiff and his tenants.?
3. Whether the plaintiff is entitled to the reliefs claimed?
4. What order or decree?
.
24. On behalf of the plaintiff, the plaintiff himself got examined as P.W.-1, who deposes in accordance with the allegations 14 O.S.6591/2010 made in the plaint. Ex.P1 to P17 are marked. The director of the first defendant got examined as D.W.-1, who deposes in accordance with the contentions taken by the defendants in their written statement. Ex.D.1 to D.19 are marked. 2 documents are marked as Ex.D11.
25. Arguments Heard.
26. The answer to the above issues are-
Issue No.1: In the Negative
Issue No.2: In the Negative
Issue No.3: As per final order
Issue No.4: As per final order
for the following-
R E A S O N S
27. Issue No.1: The relief sought by the plaintiff is only
permanent injunction. In that event other rights of the plaintiff in the partnership, namely M/s K.H.Shama Rao & Sons as well with regard to his share in the assets of said M/s K.H.Shama Rao & Sons, need not be decided in this case.
28. Even though the plaintiff has deposed in accordance with the allegations made in the plaint and produced Ex.P1 interim orders passed on I.As 1 & 2 in O.S.15153/2001, Ex.P2 & 3 certified copies of 15 O.S.6591/2010 I.A. filed u/Or 39 Rule 1 & 2 of C.P.C. in O.S.No.15153/2001, Ex.P.1 to 3 cannot be considered, because the present case was filed in 2010, whereas the said documents are relating to subsequent to the date of filing of this suit.
29. Ex.P4 the judgment and decree passed in O.S.40556/89 and O.S.4056/89 and on perusal of issues framed in both said suites as well as the common judgment passed in the said suits, it cannot be said that as on the date of filing of the present suit in O.S.6591/2010, whether the plaintiff has right in the assets and shares in M/s K.H.Shama Rao & Sons. Ex.P5 to 8 and 14 copies of complaint and police endorsement; Ex.P11 to 13, photographs and Ex.P9, C.D; do not establish the contentions of the plaintiff. Ex.P4 to 17, receipts for payments made to the plaintiff by M/s K.H.Shama Rao & Sons; on 05- 02-2016, 31-03-2016, 27-05-2016 and 1-6-2016. They are relating to the subsequent dates of filing of this suit. Hence from these documents the plaintiff has failed to establish his contention.
30. The plaintiff has made contradictory allegations in the plaint. At one point, in para-2, it is alleged that the plaintiff has 16 O.S.6591/2010 withdrawn the power, which the plaintiff had given to his brother,. in 1983 and thereafter to the plaintiff has not signed in deed of reconstitution of the said M/s K.H.Shama Rao & Sons and reconstitution of said firm passed in 1983, does not bind the plaintiff. Further, in page No.20 of the cross examination of P.W.-1/plaintiff has clearly admitted " it is true that O.S.No.3038/2013 is pending on the file of CCH-14, I have asked for accounts from 1977 onwards and my share in respect of the property in the above case. The main family members are defendants in the above suit. It is true my rights are yet decided in O.S.38/2013" Further the plaintiff has not produced any document to show that he is the partner, or he has got any share M/s K.H.Shama Rao & Sons, as on the date of suit. Further Ex.D.5. unregistered deed of reconstitution of M/s K.H.Shama Rao & Sons, dated 13-08-2017, does not show the name of the plaintiff, as one of the partners. Hence viewed from any angle in the present set of facts the plaintiff has failed to establish his said contentions. Hence issue No.1 is answered in negative.
17 O.S.6591/2010
31. Issue No.2: it is the contention of the plaintiff that defendants are attempting to block the access to the plaintiff and his tenant. The plaintiff has shown the suit 'A' schedule property, which is- " all the peace and parcel of immovable property being a plot of land, measuring about 5 and ½ acres,. bearing No.12, Lalbagh road, Bangalore. with specific measurement and boundaries"
Whereas the plaintiff has also shown the suit 'B' schedule property as " all that piece and parcel of immovable property, being built up portions identified as showroom (23), Garage (8), godown (4), cycle stand (9), 8 Tailoring Halls, A to H spans (2 and 3), office Block, packing and stores department (1) together with the right to approach the road (24) and well at the coconut garden and earlier canteen premises, which forms part of the schedule 'A' property.
32. First of all to establish the right over an immovable property, the plaintiff should produce the property extract, to show the court that the property in which the plaintiff claims is in 18 O.S.6591/2010 existence. The plaintiff has not produced any property extract. in respect of suit property.
33. Secondly, it is argued on behalf of the plaintiff that the plaintiff is claiming his right in his individual capacity and not as a partner of M/s K.H.Shama Rao & Sons which owns immovable property including, the suit 'A' schedule property. It is also alleged in the plaint (para-4) and deposed by P.W.-1 that the said M/s K.H.Shama Rao & Sons had under agreement of lease for building, dated: 31-05-1964, gave on lease a portion of the above said property to the first defendant and as such the first defendant is a tenant in respect of only the built up portion of the said 'A' schedule property and rest of the schedule "A" property does not belonged to and not in possession of first defendant and same is for common benefit and enjoyment and all the partners of M/s K.H.Shama Rao & Sons and their family members.
Order 30 Rule 1 of CPC states-
1) Suing of partners in name of firm.- (1) Any two or more persons claiming or being 19 O.S.6591/2010 liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct.
when it is specifically alleged in the plaint that suit "A" schedule property is owned by partnership firm, then plaintiff, in his individual capacity, and not as partner of the partnership firm, has no right over the suit 'A' schedule property. Further the cause title of the plaintiff is shown as " Sri.K.KRUPASHANKAR RAO, aged about 62 years, S/o Late Sri.K.S.Eshwar Rao, r/at No.12/3, Lalbagh Road, (No.22, Mission Road, Bangalore.
34. At the cost of repetition as alleged and deposed by the plaintiff, the plaintiff has not signed in deed of reconstitution of partnership deed of said M/s K.H.Shamarao and sons and 20 O.S.6591/2010 reconstitution of the said firm post 1983 does not bind the plaintiff. In that event the plaintiff, in his personal capacity, even though, for sake of arguments, he has got share of about 3%, cannot be file the above suit, since in his personal capacity, he is not the owner and in possession of suit 'A' schedule property and suit 'B' schedule property is part and parcel of suit 'A' schedule property.
35. Further P.W.-1 in his cross examination, in page No.9, has clearly admitted that it is true to suggest that the said firm is the absolute owner of suit schedule-A property and in possession and enjoyment of the same. It is also admitted that "It is true to suggest that, M/s K.H.Shama Rao & Sons has leased schedule -A property to the first defendant by means of registered lease deed, dated 31-5- 1964. The witness was questioned whether schedule 'B' to the plaint also leased to the first defendant from 31-05-1965, for which witnesses answered only constructed portion has been given for lease.... I do not know whether the first defendant was in possession of schedule 'A' and 'B' property from 31-05-1964. When, as admitted by P.W-1 in his cross examination, as contended by the defendants in 21 O.S.6591/2010 their written statement, entire suit 'A' schedule property was leased by K.H.Shamarao and Sons to the first defendant; then even without producing the said registered lease deed, the contentions of plaintiff in that regard cannot be accepted. Further when the first defendant is the lessee of entire suit 'A' schedule property and 'B' schedule property is part and parcel of suit 'A' schedule property; the plaintiff, in his personal capacity and not as a partner in M/s Shamarao and sons; has no locus standi to file this suit also. Hence viewed from any angle it appears to the court that the defendants have not attempted to block the suit schedule "A" property to the plaintiff and his tenants.
36. As far as the rights of the plaintiff , absolutely nothing has been elicited in the cross examination of D.W.-1.
37. Further in this case no commissioner is not appointed to know the exact location of the suit property and place where the defendants attempted to block the access of the plaintiff and his tenants. Hence this issue is answered negatively. 22 O.S.6591/2010
38. Issue No.3 & 4: since these two issues are inter-related, they are taken together. Considering the facts and circumstances of this case there is no order as to costs. In view of answers to issues No.1 & 2, the following-
O R D E R The suit is dismissed.
No order as to costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected signed and then pronounced by me, in open Court, on this the 19th day of July, 2017).
(SHUBHAVEER B.) XII Addl. City Civil & Sessions Judge, Bengaluru A N N E X U R E I. List of witnesses examined on behalf of plaintiff:
P.W.1 - E.Krupashankar Rao II. List of witnesses examined on behalf of defendants:
D.W.1 - Dr.K.V.Rajendra 23 O.S.6591/2010 III. List of documents exhibited on behalf of plaintiff:
Ex.P1: Certified copy of orders on I.A.1 & 2
in O.S.15153/2011
Ex.P2: Certified copy of I.A.No.1 in
O.S.No.15153/2011
Ex.P3: Certified copy of I.A.No.2 in
O.S.No.15153/2011
Ex.P4: Certified copy of judgment in
O.S.4341/89 and 4056/89
Ex.P5: Office copy of complaint
Ex.P6: Copy of complaint
Ex.P7: Copy of complaint dated:5-10-2010
Ex.P8: Endorsement issued by police
Ex.P9: C.D.
Ex.P10 Photographs
to 13:
Ex.P14: Endorsement issued by police
Ex.P14 Intimations
to 17:
IV. List of documents exhibited on behalf of defendants:
Ex.D1 &2 2 Maps
Ex.D3: Resolution copy
Ex.D4: Authorization letter
Ex.D5: Deed of reconstitution of
partnership firm
Ex.D6 and Certified copy of lease deed
Ex.D6(b) Sketch
Ex.D7 Register of firms
24 O.S.6591/2010
Ex.D8 Receipt
Ex.D9 to 14 Photographs
Ex.D15 C.D.
Ex.D16 Copy of complaint
Ex.D17 Copy of complaint
Ex.D18 Order of Hon'ble High Court
Ex.D19 Certified copy of order sheet
XII ADDL.CITY CIVIL & SESSIONS
JUDGE: BENGALURE .
25 O.S.6591/2010
(Judgment pronounced in open court )
ORDER
The suit is dismissed.
No order as to costs.
Draw a decree accordingly.
XII ACCJ;Bengaluru
26 O.S.6591/2010