Bombay High Court
Aditya Developers And Builders And Anr vs Chandrama Gulabchand Dubey And 6 Ors on 28 April, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
Digitally signed
by JITENDRA
JITENDRA SHANKAR
NIJASURE
SHANKAR Date:
NIJASURE 2022.04.28
18:46:19
+0530
916-ial-11431-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.11434 OF 2022
IN
SUIT (L) NO.11431 OF 2022
M/s. Aditya Developers and Builders & Ors. ...Applicants/
Plaintiffs
Versus
Chandrama Gulabchand Dubey & Ors. ...Defendants
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Mr. Cyrus Ardheshir with Yadunath Chaudhari and Nikhil Adkine i/b
Kevin Pereira for the Plaintiffs.
Sharman Lal with Tarunlal Trivedi for Defendants.
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CORAM : R.I. CHAGLA J
DATE : 28TH APRIL, 2022
ORDER :
1. Heard learned Counsel for the parties.
2. By this Interim Application the Applicant has sought an order of injunction restraining the Defendants and their servants and representative from dealing with, disposing off, parting with possession or creating any third party, title or interest in respect of the suit property or any tenements or any part thereof. Further, relief has been sought for 1/5 916-ial-11431-2022.doc appointment of Court Receiver in respect of the Suit property and for disclosure on oath the documents executed by Defendants for creating third parties rights with respect to the Suit property or any part thereof.
3. Mr. Cyrus Ardheshir, learned Counsel for the Applicants / Plaintiffs has submitted that the Deed of Partnership was executed on 8th January, 2013 between the Plaintiff herein and the predecessor of the Defendants, namely Gulabchand Balaram Dube for carrying the business as Builder and Developers, etc. and for re-development of the suit property for which the Development Rights Agreement has been entered into with the Society. It so transpired that Gulabchand Balaram Dube had thereafter expired. In Clause 17 of the Deed of Partnership it was provided that in the event of death of any of the partner, the firm shall not dissolve the partnership and the surviving partner and the legal heirs of the deceased partner shall continue the business without interruption. It was further agreed in the said Clause that surviving partner shall agree to admit any / all of the legal heirs of the deceased partner.
4. Mr. Ardheshir further submitted that upon the demise of the original partner, the Defendants who are the legal heirs of the Original partner have taken upon themselves to deal with the Suit property behind the back of the Plaintiff. He has submitted that the Defendants are entering 2/5 916-ial-11431-2022.doc into agreement with the third party purchasers without the knowledge of the Plaintiffs for purchase of the premises in the new building constructed on the suit property and ready for occupation as part occupation certificate has also been issued by the Slum Rehabilitation Authority ("SRA"). He has accordingly submitted that, it is necessary by way of ad-interim relief to restrain the Defendants from dealing in any manner with and / or creating third party rights and / or alienating the Suit property.
5. The learned Advocate for the Defendants has submitted that upon the demise of the original partner, the partnership firm has dissolved. Further, the Plaintiff is not providing inspection of the accounts of the partnership firm to the legal heirs of the original partner. He has submitted that upon dissolution of the partnership firm, there is no question of the partnership being revived and he has submitted that the Clause 17 of the Deed of Partnership is not good in law and has sought relying upon authorities in respect of this contention.
6. Having considered the rival submissions, it would be necessary by way of ad-interim relief to grant protection to the suit property, in particular the new building which has been constructed on the suit property. It is to be noted that the building has received part occupation certificate and upon the demise of the original partner of the partnership 3/5 916-ial-11431-2022.doc firm, the legal heirs of the deceased original partner are in a position to deal with the building by creation of third party rights.
7. It is necessary to note that the Deed of Partnership was executed between the original partner and the Plaintiff herein for redevelopment of the suit property pursuant to the development rights agreement entered into with the society. In view thereof and particularly considering the contention of the Plaintiffs herein that the certain third party rights have been created by the Defendants who are the legal heirs of the deceased original partner, including sale of flats in the redeveloped building, it would be appropriate to appoint a Court Commissioner to inspect the redeveloped building on the suit property to determine the current status of the new building including the flats which are occupied therein. The necessary documents shall be made available to the Court Commissioner by the parties in the above Suit.
8. Hence the following order:-
(i) Mr. Ketan Trivedi, Official Assignee is appointed as Court Commissioner to inspect the new building on the suit property i.e. piece and parcel of land admeasuring 600 sq. mtrs. bearing CTS No.47(Pt), 47/1 to 26, situate at Off Nagardas Road, Mogra Village, Andheri (East), 4/5 916-ial-11431-2022.doc Mumbai 400 069 on 2nd May, 2022 at 5.30 p.m. The Court Commissioner shall be accompanied with the representatives of both the Plaintiffs and the Defendants.
(ii) Till the next date, the Defendants are restrained from dealing with, disposing off, parting with possession or creating any third party, title or interest in respect of the Suit property or any tenements or any part of it thereof.
(iii) The Defendants shall file Affidavit of Disclosure in terms of prayer clause (e) of the Interim Application on or before 8th June, 2022.
(iv) The Court Commissioner shall file his report on 5th May, 2022.
(v) The charges of the Court Commissioner shall be borne by the Plaintiff.
9. The Interim Application is stood over to 5th May, 2022, to be shown high on board.
[R.I. CHAGLA J.] 5/5