Delhi District Court
Shri G.D. Sharma vs Shri U.C. Sharma on 17 December, 2007
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IN THE COURT OF SMT. RACHNA T. LAKHANPAL,
CIVIL JUDGE : DELHI
SUIT NO. 903/06
Shri G.D. Sharma,
Sole Proprietor,
M/s. General Surgical Co.,
1541, Bhagirath Palace,
Chandni Chowk,
Delhi110006.
Plaintiff.
Versus
1. Shri U.C. Sharma,
S/o Late Pt. Salig Ram Sharma,
R/o H1/11, Vijay Chowk,
Delhi110051.
deceased through Legal Heirs
(i) Smt. Raj Rani
W/o Shri U.C. Sharma
(ii) Shri Vijay Sharma
S/o Shri U.C. Sharma
(iii) Shri Narendra Sharma,
S/o Shri U.C. Sharma
(iv) Shri Pradeep Sharma
S/o Shri U.C. Sharma
(v) Shri Kiran Sharma,
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S/o Shri U.C. Sharma
(vi)Shri Ajay Sharma,
S/o Shri U.C. Sharma
(vii)Ms. Neelam,
D/o Shri U.C. Sharma
2. Delhi Development Authority,
through its Dy. DirectorIndustrial,
Vikas Sadan, I.N.A. Market,
New Delhi110023.
3. The Surgical Cooperative
Industrial Estate,
through its Secretary,
60, Darya Ganj,
New Delhi110002.
4. Shri B.R. Sharma,
S/o Late Shri Salig Ram,
R/o C5/5, Krishna Nagar,
Delhi110051.
Defendants
Date of institution : 26.12.1996.
Date of decision : 17.12.2007.
JUDGEMENT:
By this judgment, I shall dispose of the present suit of the plaintiff. In brief the case of the plaintiff is that the plaintiff has filed 3 the present suit for permanent and mandatory injunction thereby seeking relief of restraining defendant No. 2 and 3 to allot the plot No. B94, Okhla Industrial Estate, PhaseI, New Delhi110020 in favour of defendant No. 1 or any other person except the firm of the plaintiff and further seeking relief that defendant No.2 and 3 be restrained to hand over the possession of the suit plot to defendant No.1 or any other person except the plaintiff firm and also restraining defendant No. 1, his agents, attorneys etc from taking possession of above said plot. Plaintiff also sought relief that in case defendant No. 2 DDA has already alloted the said plot to any other person except the plaintiff, then the said allotment, if any, be ordered to be cancelled and decree be passed in favour of the plaintiff. It is inter alia submitted by the plaintiff that plaintiff is sole proprietor of M/s. General Surgical Co., 1541, Bhagirath Palace, Chandni Chowk, Delhi 110006. Plaintiff has submitted that in April, 1953, a partnership firm was created between the three real brothers i.e. plaintiff, defendant No. 1 and defendant No. 4 under the name of style of M/s. General Surgical Co. and in the year 1962, a society was created by the persons involved in the business of surgical articles under the name of defendant No. 3.
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2. It is further case of the plaintiff that the firm M/s. General Surgical Co. had deposited the share amount and the admission fee from its account with the defendant No. 3 society and became its member. Thereafter in 1977, defendant No. 1 preferred to dissolve the firm due to some differences between the partners and a dissolution deed for the said dissolution was executed on 15.09.1977 and vide that deed, the defendant No. 1 surrendered all his rights in respect of other assets etc., of the said firm, in favour of the two remaining partners i.e. the plaintiff and the defendant No. 4. Thereafter, on 16.09.1977, a fresh partnership deed was executed between the plaintiff and defendant No. 4. Plaintiff has further submitted that defendant No. 1, being the eldest of the three brothers was dealing with the affairs of the defendant No. 3 society and all the information of dissolution of the firm as well as creation of new partnership business was duly sent to defendant No. 3 society as well as to the Registrar of Firms. It is further case of the plaintiff that thereafter, some differences arose between the plaintiff and defendant No. 4 and accordingly partnership was dissolved on 20.05.1982 vide a dissolution deed and all the claims of defendant No. 4 were cleared by the plaintiff and defendant No. 4 was left with no claim, title or 5 interest in the affairs of M/s. General Surgical Co. and since then plaintiff being the sole proprietor of M/s. General Surgical Co. has been doing aforesaid business in the said name and style. Plaintiff further submits that plaintiff had cleared all the dues and outsanding of defendant No. 1 and defendant No. 4, at the time of dissolution of partnership firm and defendant No. 1 being the eldest brother amongst the three partners, had been dealing with the affairs of the firm and is having in his possession the relevant records of payment made to the society / defendant no. 3. Plaintiff further submitted that a plot of 400 sq. yards was to be alloted in the name of M/s. General Surgical Co. However, it came to the knowledge of plaintiff that defendant No. 1 has manipulated the records with regard to the allotment of said plot in his name and it is revealed that defendant No. 1 has played a fraud upon the defendant No. 2 and 3 because it is the company who was and who is the member of defendant No.3 and accordingly, entitled for the allotment of the plot. Plaintiff further submitted that on 24.12.1996 it was revealed that defendant No. 2 DDA is going to hand over the physical possession to the respective members. The plaintiff also wrote a letter in details on 18.11.1996 to DDA thereby requesting DDA to allot the plot and to hand over the possession to 6 the plaintiff. Plaintiff has submitted that defenant No. 1 is adamant and is making all the efforts to take possession of the proposed plot and has challenged the plaintiff to do what the plaintiff can. Hence the present suit.
3. In the written statement filed by defenant No. 1, it is inter alia contented by defendant No. 1 that plaintiff has no right, title or interest in the plot alloted to the defendant no. 1, by defendant No. 2 DDA, as the plot was booked in the name of defendant No. 1 and price was also paid by defendant No. 1 in his own independent capacity and therefore, defendant No. 1 has got all legal rights to retain the allotment of the said plot. He has submitted that Hon'ble Supreme Court of India on 16.08.1993 in Civial Appeal Nos. 668 669 of 1988 titled as DDA Vs. M/s. Surgical Coop. Industrial Estates & others held that only the individuals are the members of the respondent society and accordingly the possession of the alloted plots are to be handed over to the individual members. Therefore, defendant No. 1 is entitled for getting the possession of the plot alloted to him. On merits, defendant No.1 has submitted that the firm M/s. General Surgical Co. came into existence on 18.08.1951 and the 7 defendant No. 1 was the sole proprietor . Plaintiff and defenant No. 4 used to assist him in his business till 1953. In 1953, plaintiff and defendant No. 4 were also made partners vide Partnership deed dated 15.04.1953. Defendant No. 1 had contended that he had paid share capital of Rs.1000/ in his own individual capacity to defendant No. 3 and he was allotted a share certificate bearing no. 9/15369 dated 15.09.1965 by the defendant No. 3. DDA declared the result of the cases of draw on 14.03.1972 and as per the result sheet the name of defendant No. 1 figured at serial No. 1 and the suit plot was alloted to defendant No. 1, which was intimated by the DDA vide its letter dated 19.06.1972. The defendant No. 1 further paid a sum of Rs. 5,600/ in his own individual capacity being member of defendant No.3 society on 30.12.1972. Defenant No. 1 has further given the details of the payment in his individual capacity. He has not denied the dissolution deed dated 15.09.1977.
4. Defendant No. 2 has also filed Written statement in which it has been contended that no notice U/s 53B of DD Act was served. It has been submitted by DDA that from the record of the DDA, suit plot was alloted to Sh. Uttam Chand Sharma ie. defendant No.1, vide 8 office letter No. F5A(88)70/LSB(I) dated 19.06.1972, as per the share certificate produced by the society, in which Shri Uttam Chand Sharma was a Share Holder of the society. It was not the firm who was the share holder of the society. It is also submitted that the balance premium of suit plot was made by Shri Uttam Chand Sharma, defendant No. 1 but the possession has not been handed over.
5. Defendant No. 3 society has also filed written statement in which it has been contended that the plaintiff has no locus standi to file the present suit as the plaintiff neither a member nor a person having any interest, right or claim in the affairs of the defendant No. 3 and the suit filed by the plaintiff is not maintainable in the light of the judgment of Hon'ble Supreme Court of India in Civil Appeal Nos. 668669 of 1988 in SLP No.(C) 15673 of 1986 in which it has been held that only individual persons can be members of the society. It is further submitted that society was formed by 23 persons who were related with surgical business, contributed Rs. 1000/ each as their contributed share on or about 25.01.62 and accordingly each of the shareholder was issued a share certificate in his own individual 9 name including the defendant no. 1. It is further submitted that in the initial stage of formation of the society, a list of firms was submitted to the Registrar of Coop. Societies but in view of the provision of Coop. Societies Act, it was revealed that no society can be formed by the firms. Members of the society called the emergency meeting on 07.08.1962 and resolution was passed for giving individual members name and list of the members was submitted to Coop. Society which was registered having No. 30(1) on 10.08.62 and the share capital of defendant No. 3 was contributed by the persons in their individual capacities and status. It is further submitted that defendant No. 1 always acted in his individual capacity and status.
6. Defendant No. 4 has also filed WS and has sought his 1/3 rd share in the suit plot. It is submitted that the society was created by the dealers and the firm M/s. General Surgical Co. became the member of the said society. It is further submitted that at the time of dissolution of firm on 15.09.1977 it was orally agreed between the plaintiff, defendant No. 1 and defendant No. 4 that the amount deposited by the firm remained common or joint fund and when the 10 plot will be alloted the said plot will be distributed in equal shares between the plaintiff , defendant No. 1 and defendant No. 4.
7. From the pleadings of the parties, the following issues were framed :
1. Whether the plaintiff is the sole proprietor of M/s. General Surgical Co., Bhagirath Place, Chandni Chowk, Delhi and the plot was booked from the funds of the company and was to be allotted in the name of M/s. General Surgical Co. ? OPP.
2. Whether the plaintiff has no claim in the plot as the plot was booked and the price was paid by the defendant No. 1 in his individual capacity ? OPD1.
3. Whether the suit is not maintainable in the light of judgment of Hon'ble SC in DDA Vs. M/s. Surgical Coop. Industrial Estates?
OPD1.
4. Whether the plaintiff is entitled for the relief of P.I. as prayed for ? OPP.
5. Whether the plaintiff is entitled for the relief of M.I. as prayed for? OPP.
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6. Relief.
8. In support of his case the plaintiff has examined PW1 Sunil Kumar Sharma, PW2 Sh. Dharam Pal, PW3 Sh. Satpal Sharma. Defendant has examined DW1 Sh. Pradeep Kumar Sharma, DW2 Sh. Narender Kumar Sharma.
9. I have meticulously scrutinized the entire evidence on the record and have given my careful thoughts to the rival submissions. My findings on the issues is as under : ISSUE NO. 1 :Whether the plaintiff is the sole proprietor of M/s. General Surgical Co., Bhagirath Place, Chandni Chowk, Delhi and the plot was booked from the funds of the company and was to be allotted in the name of M/s. General Surgical Co. ? OPP. AND ISSUE NO. 2 Whether the plaintiff has no claim in the plot as the plot was booked and the price was paid by the defendant No. 1 in his individual capacity ? OPD1.
The plaintiff in his plaint has submitted that he is the sole proprietor of M/s. General Surgical Co. Defendant No. 1 and 4 have not denied the fact that at the present plaintiff is sole proprietor of 12 M/s. General Surgical Co. To discharge his onus, evidence has been given by the attorney of the plaintiff who is son of the plaintiff. Onus to prove the issue i.e. plot was booked from the funds of the company and was alloted in the name of firm and price was paid by the firm, was upon the plaintiff. In his cross examination attorney of the plaintiff has deposed that he was not having any personal knowledge of the affairs of the firm prior to 1984 and he deposed that his father used to tell him of the affairs of the partnership firm. He has also not signed the plaint of the suit. Plaintiff has taken stand that the cost of the plot was paid out of the firm's account but attorney of the plaintiff in his cross examination deposed that he does not have any documentary proof to show that the cost was paid from the account of M/s. General Surgical Co. He admitted the share certificate Ex. PW 1/D1 and the same stands in the name of defendant No. 1. He has admitted that the allotment letter dated 19.06.1972 Ex. PW1/D2 was issued by DDA in the name of defendant No. 1. He also admitted that in the year 1986 Sh. U.C. Sharma paid the amount of Rs. 79,550/ to DDA from his personal account and he also admitted Ex. PW2/D1. He has relied upon Ex. PW1/2 which is the dissolution deed dated 15.09.77 and which is also admitted by the defendant No. 1. 13 Therefore, same can be looked into despite the fact that the attorney of the plaintiff was not witness or the same was prepared in his presence. Attorney of the plaintiff has admitted that in the dissolution deed, nothing specifically has been mentioned about the affairs of the plot in question. He has also admitted that nothing has been mentioned about the plot in question in new partnership deed dated 16.09.77 entered into between the plaintiff and defendant No. 4 filed by the plaintiff himself. However, in further cross examination attorney of the plaintiff states that he is not aware whether this plot has been referred in the dissolution deed on 1982 or 1977 which is again showing contradiction in the deposition of the attorney of the plaintiff and the same can not be looked into in view of his earlier admission that there is no mentioning of plot in question in the dissolution deed. A bare perusal of the dissolution deed does not refer to the plot in question. Admittedly, share certificate of membership of society has been issued in the name of defendant No.1. No explanation has been given by attorney of the plaintiff as to why any action or complaint was not initiated if the share certificate was wrongly alloted in the name of defendant No. 1. The plea of the plaintiff that after dissolution of the firm in 1977, it was defendant No. 1 who kept on 14 dealing with the affairs of plot, does not inspire confidence of this court because as per the own submission of the plaintiff, firm was dissolved due to differences and in those circumstances, it is difficult to comprehend that why the defendant No. 4 or the plaintiff kept quiet and left the affairs of the plot upto the defendant No.1 and never bothered to get the address changed from 26, New Lajpat Rai Market to their new address of firm i.e. 63, New Lajpat Rai Market in the records of DDA. Not only that, after dissolution of firm, plaintiff and defendant No. 4 never took any step for deleting the name of U.C. Sharma or for addition of their names in place of U.C. Sharma. Attorney of the plaintiff has failed to show any proof in respect of the plea that the price of the plot was paid out of the account of the firm.
10. The plea of plaintiff that firm was the member of defendant No. 3 is also not sustainable because as per the Society Registration Act individual members can only become the member of society, which is to be registered under the Society Registration Act. It has been provided in the Society Registration Act that any seven or more persons associated for any literary, scientific or 15 charitable parties made by subscribing their names may file the same with the Registrar for the registration of the same under the Society Registration. No provision has been made for membership of firms or association as members of society. Plaintiff's plea was that fund was given towards membership of defendant No. 3 out of the partnership firm's fund but as discussed above, plaintiff has not been able to prove that payment was made out of partnership firm. Share certificate, demand letter, allotment letter stands in the name of defendant No. 1. Plaintiff has taken plea that in most of the documents filed by defendant No. 1, after the name of defendant No.1, M/s. General Surgical Company's name appears. Therefore, M/s. General Surgical Company was the member, but this plea is also not maintainable. Admittedly, defendant No. 1 become the member of defendant no. 3 when he was partner of defendant No. 3 and as defendant No. 3 was formed with the persons carrying on business of surgical instruments. Therefore, name of M/s. General Surgical Company must have been referred, after the name of Mr. U.C. Sharma but mentioning of M/s. General Surgical Company along with Sh. U.C. Sharma does not itself signify that the membership amount or other charges were paid out of partnership 16 firm's account. Therefore, plaintiff has failed to prove that the plot was booked from the funds of company and was alloted in the name of M/s. General Surgical Company. Issue No. 1 is decided against the plaintiff. As all the documents regarding the allotment and membership of the suit plot stands in the name of defendant No. 1, therefore, it can be safely presumed that defendant No. 1 was the owner of the suit plot in his individual capacity and price was paid by defendant No. 1 in his individual capacity. Therefore, issue no. 2 is decided in favour of defendant No. 1.
11. ISSUE NO. 3 :Whether the suit is not maintainable in the light of judgment of Hon'ble SC in DDA Vs. M/s. Surgical Coop. Industrial Estates? OPD1.
This issue was framed on the instance of defendant No.1. Defendant No. 1 has filed photocopy of Hon'ble Supreme Court decision in Civil Appeal No. 668669 of 1988. In the judgment there was a dispute regarding the rate of plot between the DDA and defendant No. 3 and its membership. Defendant No. 1 has not filed memo of parties of the Special Leave Petition. In the whole order of Special Leave Petition, entitlements of members of defendant No. 3 17 has been discussed. Probably, defendant No. 1 wanted to show by filing this petition that Sh. U.C. Sharma was a party in the array of the parties which could not be made out from the perusal of the order of Hon'ble Supreme Court. However, in the Supreme Court's order pendency of previous litigation before Hon'ble Delhi High Court has been mentioned and incidently, plaintiff himself had filed the copy of order of Hon'ble Delhi High Court in which in the array of the parties, name of Mr. U.C. Sharma appears. Any how, from the bare perusal of the Hon'ble Supreme court order it can not be made out that the present suit is not maintainable. Therefore, this issue is decided against defendant No. 1.
12. ISSUE NO. 4 :Whether the plaintiff is entitled for the relief of P.I. as prayed for ? OPP. and ISSUE NO. 5 :Whether the plaintiff is entitled for the relief of M.I. as prayed for?
In view of the findings in issue no. 1 and 2, plaintiff is not entitled for relief of permanent injunction and mandatory injunction. Therefore, issue No. 4 and 5 are decided against the plaintiff. 18
13. ISSUE NO. 6 (RELIEF ):
In view of the findings in issue No. 1 to 5, suit of the plaintiff is dismissed. Parties shall bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
(RACHNA T. LAKHANPAL) CIVIL JUDGE/DELHI.
ANNOUNCED IN OPEN COURT ON 17.12.2007.19