Bangalore District Court
O.S./8578/2007 on 1 October, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY.
DATED THIS THE 1ST DAY OF OCTOBER 2015.
- : PRESENT :-
SRI.PATIL NAGALINGANAGOUDA, B.A., LL.B. (Spl),
VIII Addl. City Civil & Sessions Judge, (CCH-15),
Bengaluru.
ORIGINAL SUIT No.8578/2007
Plaintiffs :
1. J.P.Sharma S/o. N.M.Sharma, 50
Years.
2. Smt.Usha Sharma W/o.J.P.Sharma,
48 years.
Both are R/o.No.203, Veenanagar,
S.V.Road, Mallad (West) Mumbai 0
400064. and also at C/o.
Sri.C.N.Kumar, Advocate No.142,
K.Kamaraj Road, (formerly Cavalry
Road), Bengaluru-42.
(By Counsel Sri.C.Laksminarayana
Rao)
/ VERSUS /
Defendants :
1. Radhe Sham Sharma (R.S.Sharma),
52 Years, (Court Receiver in
O.S.No. 6741/2003 on the file of
Additional City Civil Judge,
Bengaluru).
2. Eswar Chand Sharma (E.S.Sharma)
S/o.N.M.Sharma, 40 Years.
Both are R/o. No. 220/320, 'Ganga'
National Games Village,
Koramangala, Bengaluru - 560 034.
(By Counsel Sri.S.G.B.)
Date of institution of the suit : 10.09.2007
Nature of suit : Injunction suit.
Date of commencement of
Recording the evidence : 12.01.2012
Date on which the judgment
was pronounced : 01.10.2015
Total duration :Year/s Month/s Day/s
08 00 22
(PATIL NAGALINGANAGOUDA)
VIII Addl.City Civil & Sessions Judge,
Bengaluru.
***
JUDGMENT
This is a suit filed by the plaintiffs against defendants with a prayer to direct the defendants to deliver the blank signed papers, blank signed cheque leaves and blank signed stamp papers belonging to plaintiffs, wrongfully detained by defendants and to direct them to pay Rs.5,000/- being nominal compensation for the detention of said documents.
2. The brief facts of the plaint are as under :
Plaintiffs have contended that, Sri.Nathmal Sharma (N.M.Sharma) is the Chief founder and mentor having started transport business during 1974 registered firm in the name and style of M/s.Globe Transport Corporation at Bengaluru and now having its office at No.40, Fort, 4th floor, Lakshmi Complex, Bengaluru. It is submitted, N.M.Sharma inducted his 3 sons i.e., first plaintiff and defendants herein as partners in the said partnership firm. First defendant is Law Graduate and the entire management of the said M/s.Globe Transport Corporation was left with him by reposing good faith and confidence in him and first plaintiff was looking after the 3 branch offices of M/s.Globe Transport Corporation at Mumbai, Poona and Akluj and he is stationed at Mumbai with the second plaintiff.
3. It is submitted, difference arose between the brothers i.e., first plaintiff on one side along with his father and defendants No.1 and 2 on the other side and there came to be hurriedly purported Retirement Deed dated 22.10.2002, whereby the strategy worked out that, first plaintiff and his father as partners of said partnership firm M/s.Globe Transport Corporation was sidelined.
4. It is submitted, first plaintiff and his father had filed suit in O.S.No. 6741/2003 before the Additional City Civil Judge, Bengaluru, against M/s.Globe Transport Corporation and its other partners i.e., defendants No.1 and 2 herein and another Hemant Kumar Sharma i.e., son of first defendant, contending that the Retirement Deed was not acted upon and that it should be declared as null and void and sought for dissolution of partnership firm. It is submitted, in the said suit, the application filed by the plaintiffs for appointment of Court Receiver was rejected by the trial Court, plaintiffs herein filed MFA No.2117/2004 before the Hon'ble High Court of Karnataka questioning the said order and the Hon'ble High Court by its Order dated 29.9.2005 appointed R.S.Sharma, the first defendant, who is one of the partners of M/s.Globe Transport Corporation as Court Receiver in respect of the firm M/s.Globe Transport Corporation in the said original suit, directing him to account for the assets and liabilities and its income and expenditure from the date of Retirement Deed till disposal of the suit and the accounts of the firm shall be audited under the Joint Supervision of Chartered Accountant of respondents and chartered accountant to be named by the appellants i.e., N.M.Sharma and first plaintiff. It is submitted, said Order is in force and entire management of M/s.Globe Transport Corporation is in the hands of partner - R.S.Sharma - first defendant.
5. It is submitted, entire business covered under M/s.Globe Transport Corporation, the family trading concern of N.M.Sharma and his sons and grand sons and said N.M. Sharma as also the first plaintiff is residing at Bombay for the last 25 years entire management of the said M/s.Globe Transport Corporation was left with him by reposing good faith and confidence among the partners. It is submitted, with this confidence, signed blank papers, signed blank cheque books and signed blank stamp papers of both the plaintiffs were left with the defendants No.1 and 2 who were managing the affairs of M/s.Globe Transport Corporation to facilitate the smooth business and for filing of income tax returns and several other activities, solely and centrally in the hands of first defendant and as also the second defendant who are inseparable, in the sense, that they are married two sisters and living together at Bengaluru.
6. It is submitted, first plaintiff on his behalf and also on behalf of second plaintiff sent several letters addressed to both the defendants requesting for return of all valuable securities such as signed blank papers, signed blank cheque books and signed blank stamp papers of both Plaintiffs No.1 and 2 containing signatures of both the plaintiffs and other papers which were given to first defendant being the elder member of the family. It is submitted, plaintiffs have also sent registered letter to Sri.C.M.M. Sharma, the Chartered Accountant of M/s.Globe Transport Corporation, Bengaluru but he has not replied the same. Further it is submitted, first plaintiff took by surprise when he received the registered legal notice dated 10.8.2007 issued on behalf of M/s.Globe Transport Corporation stating that first plaintiff has sent a registered post a cheque bearing No.834030 dated 21.7.2007 of syndicate Bank, J.C.Road,Bengaluru for Rs. 6,86,000/- and said to have been received by M/s.Globe Transport Corporation and further stated that first plaintiff had issued a cheque towards legally enforceable debt and further stated on 31.7.2007 when M/s.Globe Transport Corporation presented the said cheque for encashment, came to be dishonored with banker's endorsement 'insufficient funds'. It is submitted, in the said notice it has called upon first plaintiff to pay the amount covered under the said cheque failing which suitable action will be taken for the alleged offence. Lastly it is submitted, defendants have detained the valuable belonging to the plaintiffs as detailed in the schedule as it will have no monetary value, but, once it is misused, it becomes valuable security to unimaginable value in terms of currency. With these submissions, plaintiffs prayed for decreetal of the suit.
7. On the other hand, in pursuance of summons, defendants appeared through their counsel and filed their separate written statements. The brief facts of the written statements of defendants No.1 and 2 are as under :
Defendants have admitted that N.M.Sharma started business of M/s.Globe Transport Corporation and first plaintiff and defendants were inducted as partners of said firm. Defendants have denied that the entire management of said M/s.Globe Transport Corporation was left with him by reposing good faith and confidence in him. Defendants have contended that all the partners of the firm were managing its affairs, being in charge of, and participating in its day to day affairs. Defendants have taken contention that first plaintiff and N.M.Sharma retired from partnership of M/s.Globe Transport Corporation by executing Retirement Deed dated 22.10.2002. Defendants have admitted with regard to filing of O.S.No. 6741/2003 and filing of MFA No.2117/2004 and appointment of first defendant as Court Receiver. Defendants have contended, they are contesting the suit and the matter is seized, therefore, defendants do not elaborate on the matter at this stage. It is submitted, appointment of Receiver by the Court is not because of any mismanagement or due to any malfunctioning of the firm, but to prevent any multiplicity of proceedings and to avoid any disputes at a later stage. Defendants have denied that M/s.Globe Transport Corporation is the family trading concern of N.M.Sharma and his sons and grand sons. Further they have contended, it is a registered partnership firm. Defendants have denied that first plaintiff is residing in Bombay for last 25 years by reposing unfailing faith and confidence among the partners or otherwise members of the family and with this confidence, the signed blank cheque books, signed blank stamp papers of both the plaintiffs were left with the defendants No.1 and 2 who were managing the affairs of M/s.Globe Transport Corporation to facilitate the smooth business and for filing of income tax returns and several other activities of the firm. It is submitted, second plaintiff was in no way associated with the business of M/s.Globe Transport Corporation at any point of time. Lastly defendants have contended that they are not in possession of any signed blank papers, signed blank cheque books and signed blank stamp papers of the plaintiffs. With these submissions, defendants prayed for dismissal of suit.
8. On the basis of the above pleadings, this Court has framed following issues :
1) Do the plaintiffs prove that they have left blank signed cheque leaves, blank signed papers and blank signed stamp papers with the defendants as alleged?
2) Do the plaintiffs prove that the defendants have retained the said documents with them illegally as alleged ?
3) Whether the plaintiffs are entitled for the documents as prayed ?
4) Whether the plaintiffs are entitled for compensation as prayed ?
5) What Order or Decree ?
9. In order to substantiate plaint averments, plaintiff No.1 himself examined as P.W.1 and got documents marked as Exs.P.1 to P.76 and closed their side. When case posted for defendants' evidence, second defendant himself examined as D.W.1 and no documents got marked.
10. I have heard the arguments from both sides.
11. My findings to the above issues are as under:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : As per the final order, for the following :
REASONS
12. Issues No.1 and 2 : - Both these Issues are taken together for consideration as they are interlinked to each other, to avoid repetition of facts.
13. In the written arguments, advocate for plaintiffs has submitted, plaintiffs have led their evidence to show that defendants No. 1 and 2 were in sole charge of day to day business of partnership firm namely M/s.Globe Transport Corporation, Bengaluru and plaintiffs always remained at Bombay and plaintiff having been in control and management of Bombay, Poona and Akluj branches. Further it is submitted, suit filed by the plaintiffs questioning Retirement Deed came to be dismissed and similarly complaint filed by the defendant firm against plaintiffs under Section 138 of N.I.Act was allowed in C.C.No.31669/2009 and S.C.No.298/04 filed against said judgment and decree came to be dismissed. It is submitted, entire evidence led by the plaintiffs against the first defendant has not been controverted by acceptable evidence by him, instead second defendant has not controverted these portions of the positive evidence led by first plaintiff against the first defendant, who was in sole and date to date change of the business of the firm. It is not the case of the defendants that they were attending the corresponding work of plaintiffs. Lastly it is submitted, plain reading of the facts uncovered in the cases between the parties that they are common members of the joint family consisting them as also sisters, brothers and grandson and incidentally became members/partners of the prestigious brain child of their father N.M.Sharma i.e., M/s.Globe Transport Corporation.
14. On the other hand, advocate for defendants has submitted written arguments stating that the prayer of the plaintiffs that defendants be directed to deliver back the signed blank papers, signed blank cheque books and signed blank stamp papers belonging to the plaintiffs wrongfully detained by the defendants is vague and it does not disclose the date on which the cause of action has arisen to file the suit. It is submitted, prayer does not satisfy the requirement of law of stating cause of action to maintain the suit. In the written arguments it is submitted, defendants have specifically denied the allegations of the plaint averments and they have taken the contention that they are not in possession of any signed blank papers, signed blank cheque books and signed blank stamp papers or any other valuable which belonged to plaintiffs. Further it is submitted, in the cross- examination P.W.1 has given fatal admissions with regard to prayer and he was unable to say how many blank cheques and other blank documents are in possession of the defendants, therefore, suit of the plaintiffs is not tenable and plaintiffs are not entitled for the relief sought for. With these submissions, advocate for defendants prayed for dismissal of the suit.
15. On careful perusal of pleadings, oral and documentary evidence of both sides and on the basis of settled principles of law, this Court is of the opinion that plaintiffs have failed to prove that they have left signed blank papers, signed blank cheque books and signed blank stamp papers with the defendants and defendants have retained said documents illegally as alleged. In order to prove the plaint averments, though P.W.1 has reiterated the plaint averments in his chief-examination, but in the cross-examination he has clearly said goodbye to their case. It is not in dispute that N.M.Sharma was the chief founder of M/s.Globe Transport Corporation. It is also not in dispute that plaintiffs and defendants No.1 and 2 were inducted as partners. Further it is not in dispute that first plaintiff and his father retired from partnership firm of M/s.Globe Transport Corporation by executing Retirement Deed dated 22.10.2002. It is the case of plaintiffs that with confidence signed blank papers, signed blank cheque books and signed blank stamp papers of both the plaintiffs were left with second defendant who was managing M/s.Globe Transport Corporation.
16. On the other hand, it is the specific case of defendants that, as on the date of their retirement, inventories were taken and their accounts were settled, thereafter first plaintiff carried on the same business in Mumbai, Puna and Akluj under the same name i.e., M/s.Globe Transport Corporation. It is also the case of defendants that first plaintiff having taken a trailer belonging to the firm to participate in a tender in Mubai, he did not deliver back the trailer on his retirement and he requested time till the year 2004 to return. D.W.1 further deposed, firm demanded the first plaintiff to return the trailer or pay its cost of Rs.6,86,000/-. On receipt of the letter of demand, the first plaintiff issued a cheque for Rs. 6,86,000/-, which on presentation was dishonoured and thereafter C.C.No.25887/2007 was registered against the first plaintiff and first plaintiff was convicted by the 20th Additional Chief Metropolitan Magistrate, Bengaluru and his Criminal Appeal No.560/2009 was also dismissed and his Revision Petition No.1242/2010 is pending before the Hon'ble High Court.
17. It is pertinent to note here that, prayer of the plaintiffs is vague and it does not disclose the date on which the cause of action arose to file this suit. When defendants have specifically denied the entire plaint averments of plaintiffs with regard to possession of the said signed blank papers, signed blank cheque books and signed blank stamp papers or any other valuable securities with them which belong to plaintiffs, then plaintiffs have to establish that they have left those documents with the defendants and defendants have illegally retained the said documents with them.
18. In the cross-examination P.W.1 has clearly admitted, now defendants No.1 and 2 are maintaining M/s.Globe Transport Corporation and his father was the founder of said M/s.Globe Transport Corporation. He has also admitted defendants had filed Criminal case against him for the offence punishable under Section 138 of N.I.Act, wherein said matter was ended in conviction. He has also admitted that he has preferred an appeal against the finding of trial Court and appeal came to be dismissed. In the cross-examination he has clearly admitted, he is unable to say how many blank signed cheque books, signed blank stamp papers and blank signed papers with the defendants belonging to them. He has also admitted, they had handed over the signed blank cheque books and other documents to the defendants between 1990 and 2002. P.W.1 further admitted, he has issued 3 to 4 notices to defendants calling upon to return the said blank papers. But further he has admitted, he has not got issued notice through his advocate. P.W.1 in the cross-examination has specifically deposed, said notices have been marked as Exs.P.1, 5, 9, 13 and 17.
19. On perusal of Ex.P.1 it reveals that it is a letter written by first plaintiff to Chartered Accountant CMM Sharma on 9.7.2002. Copy of the said letter has been sent to first defendant requesting him to send all the required papers, copies of all bank accounts, statements, cheque book counterfoils, pass books and other details of personal accounts, lying with the defendants. Nowhere in Ex.P.1 it has been mentioned that plaintiff and his father had left some signed blank papers with the defendants. Ex.P.5 is also copy of notice dated 25.9.2002 sent on the letterhead of M/s.Globe Transport Corporation by first plaintiff. Even in the said letter plaintiffs have not contended that they had handed over said blank papers to the defendants in order to facilitate smooth business of M/s.Globe Transport Corporation. Ex.P.9 is also letter written by plaintiff to defendants No.1 and 2 wherein he has stated with regard to misunderstanding arose between the plaintiff and defendants. In para No.4 of the said notice which is marked at Ex.P.9, though plaintiff has requested the defendants to sent copy of his bank account with details of transactions, but he has not disclosed the number of the bank account. Though in Ex.P.9 plaintiff has contended that defendant No.1 is in possession of signed blank cheque books, but he has not disclosed the description of the said cheque books. On perusal of Ex.P.13 it is also letter written by first plaintiff to defendants wherein plaintiff has contended that defendant is liable to send all the copies for activities being managed by defendant pertaining to the firm. Ex.P.17 is also copy of the letter written by plaintiff to defendant No.1 wherein he has stated savings accounts have been opened in the name of family members as per the advise of first defendant and same were operated by first defendant since the signed cheque books used to lie in the custody of defendant. At the cost of repetition I would like to say the contents of above said documents are not helpful to the case of plaintiffs to prove issues No.1 and 2, because in the cross-examination he has clearly admitted that he is unable to say the numbers of the signed blank documents which were in the custody of defendants.
20. At the time of arguments, advocate for defendants vehemently argued and produced copy of the Order passed by the Hon'ble High Court in Criminal Revision Petition No.1242/2010 on 19.9.2013. It discloses, plaintiff No.1 has challenged the judgment passed by the Presiding Officer of the Fast Track Court- 9 in Criminal Appeal No.560/2009. It discloses, said criminal petition is dismissed. Advocate for defendants has also produced copy of the Order passed by the Hon'ble Supreme Court on 5.5.2014. On perusal of the said document it discloses, plaintiff No.1 has challenged the order of Hon'ble High Court passed in Criminal Misc. No. 1242/2010. Admittedly, said Special Peition was also dismissed by the Hon'ble Supreme Court. So, it discloses cheque bounce case filed by the defendants against the plaintiffs ended in conviction. Further it discloses that plaintiff has preferred Revision Appeal before the Hon'ble High Court and Hon'ble Supreme Court against the finding of trial Court. Further it discloses, in order to evade the clutches of law, plaintiffs have filed this suit against the defendants with a prayer that defendants be directed to deliver back the signed blank papers, signed blank cheque books and signed blank stamp papers belonging to the plaintiffs which wrongfully detained by the defendants. When plaintiffs have failed to establish that they had left signed blank papers, signed blank cheque books and signed blank stamp papers with the defendants, question of directing the defendants to return the said documents to the plaintiffs does not arise. Even the documents relied by the plaintiffs which are marked as Exs.P.1 to P.76 are also not helpful to the plaintiffs for decreetal of suit.
21. On the other hand, in order to establish the averments of written statement, defendant No.2 himself examined as D.W.1 and in his evidence he has reiterated the averments of the written statement. In his evidence he has specifically deposed that first plaintiff was partner of the M/s.Globe Transport Corporation and there was no policy of anyone being in possession of any blank cheque, valuable security, blank stamp papers, etc., of the other. Further D.W.1 has deposed, they are not in possession of any blank signed papers, blank signed cheque leaves and blank signed stamp papers of plaintiffs. Though D.W.1 has cross-examined at length, but nothing has been brought on record to disbelieve his evidence. In the cross-examination D.W.1 has clearly denied that plaintiff and his father had left some signed blank papers with him in order to facilitate him to carry on the business. Viewed from any angle, I am of the opinion that plaintiffs have failed to prove Issues No.1 and 2. Accordingly, my answers to the above Issues No.1 and 2 are in the negative.
22. Issues No.3 and 4 : - When plaintiffs have not proved material issues No.1 and 2, certainly plaintiffs are not entitled for the documents as prayed and further plaintiffs are not entitled for the compensation as prayed. Hence, my answers to Issues No.3 and 4 are in the negative.
23. Issue No.5 : - For the aforesaid reasons and discussion, I proceed to pass the following order :
ORDER The suit filed by the plaintiffs against the defendants is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open Court on this the 1st day of October 2015.) (PATIL NAGALINGANAGOUDA) VIII Addl.City Civil & Sessions Judge, Bengaluru.
*** ANNEXURE List of witnesses examined on behalf of the plaintiffs :-
P.W.1 : J.P.Sharma.
List of witness examined on behalf of the defendants:-
D.W.1 : E.C.Sharma.
List of Documents marked on behalf of the plaintiff :-
Ex.P.1 : Letter dated 9.7.2002.
Ex.P.2 to 4 : 3 Postal receipts.
Ex.P.5 : Letter dated 25.9.2002.
Exs.P.6 to 8 : 3 postal receipts.
Ex.P.9 : Copy of Letter dated 26.12.2002. Exs.P.10 & 11 : 2 postal receipts.
Ex.P.12 : Letter dated 1.1.2003.
Ex.P. 13 : copy of letter dated 24.1.2003. Ex.P.14 : postal receipt.
Ex.P.15 : Postal acknowledgment. Ex.P. 16 : Letter dated 30.1.2003. Ex.P.17 : Copy of letter dated 19.2.2003. Ex.P.18 : postal receipt.
Ex.P.19 : Postal acknowledgment. Ex.P.20 : C/c of letter 1.7.1997.
Ex.P.21 ; C/c of letter 30.6.1997. Ex.P.22 : Copy of letter dated 1.9.2006. Ex.P.23 : C/c of letter dated 25.1.2005. Ex.P.24 : C/c of e-mail.
Ex.P.25 ` : C/c of balance sheet of 1996-97. Ex.P.26 : C/c of balance sheet of 1997-98. Exs.P.27 to31: C/c of balance sheet of 1998-99, 1999- 2000, 2000-01, 2001-02, 2002-03 respectively.
Ex.P.32 to 34 : Inter-office letters dated 25.10.07, 21.11.07 and 25.10.07 respectively.
Ex.P.35 : Letter dated 14.2.2011. Ex.P.36 to 38 : 3 postal acknowledgments.
Ex.P.39 to 60 : inter-office letters.
Ex.P.61 & 62 : C/c of Office letters dated 14.6.97 and 18.8.98.
Ex.P.63 : Letter dated 2.7.2007.
Ex.P.64 ; Notice dated 10.8.07.
Ex.P.65 ; Acknowledgment of police dated
22.8.07.
Ex.P.66 & 67 ; Letters dated 22.2.2011 & 11.8.09. Ex.P.68 : power of attorney of Smt.Usha Sharma. Ex.P.69 & 70 : 2 Postal acknowledgment in respect of Ex.P.9.
Ex.P.71 : Postal acknowledgment in respect of Ex.P.17.
Ex.P.72 to 76 : Inter-office memos.
Ex.P.72(a) to 76(a) : Translation in English. List of Documents marked on behalf of the Defendants:-
- NIL -
(PATIL NAGALINGANAGOUDA) VIII Addl.City Civil & Sessions Judge, Bengaluru.
***