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Delhi High Court
J.D. Nagrath & Anr. vs Bikramjit Nagrath & Others on 10 August, 2000
Equivalent citations: 2000 VIIAD Delhi 1185
Author: D Gupta
Bench: D Gupta, M Mudgal


ORDER

Devinder Gupta, J.

1. The first Appeal [FAO (OS) 290/99] arises out of an Order dated 25th August, 1999, passed by Learned Singe Judge disposing of IA.1992/96 in Suit No. 2327/94, filed by plaintiffs/respondents 1 to 3 under Order 39 Rule 7 CPC. The other Appeal [FAO (OS) 350/99] is against the Order, passed on 19th November, 1999 in the same suit disposing of Appellant’s review application (RA 29/99) and application of respondents 4 to 6 (IA. 9515/99) thereby clarifying the earlier order and directing the appellants to deposit in Court the entire amount of Rs. 9,66,000/- in terms of Order dated 25th August, 1999.

2. During pendency of the suit for dissolution of partition and rendition of accounts filed by the plaintiffs/respondents 1 to 3 against the defendants/appellants and the respondents 4 to 6, an application under Order 39, Rule 7 CPC was filed by the plaintiffs seeking direction against the appellants and respondents 4 to 6 for deposit of a sum of Rs. 38,50,629.04 stated to have been received by them in June, 1992 towards the amount of compensation of a piece of land, part of Plot No. 2, Tolstoy Marg, New Delhi), acquired for public purpose of widening of road.

3. The application was vehemently opposed by the appellants and respondents 4 to 6. The appellants urged before the Learned Single Judge that the amount had been received much prior to filing of the suit and plaintiffs/respondents 1 to 3 had not made any claim with respect to the said amount in the suit, therefore, direction cannot be issued for the deposit of the amount and in any case it being a suit for rendition of accounts and dissolution of the firm it will be at the final stage only, after the accounts of income and expenses are rendered in respect of the properties that a direction can be given for deposit of the amount and not before that. Learned Single Judge considered the submissions made on behalf of the appellants and negative the same observing:-

“These objections, to my mind, are without any merit. It is not in dispute that the property in question belonged to the partnership firm and upon part of its land being acquired, compensation was paid. The compensation that was received, as is seen from the record, was received by defendant No.1 (a) and (c), as managing partners of the firm. The plaintiffs can’t be faulted with if they were not aware of the factum of this acquisition. Rather, it is a case where the defendants have enjoyed the benefit of the amount of compensation without the plaintiffs’ part taking into it. The case of plaintiffs, as noticed, is that defendants have utilized the said amount for their personal benefit. Once it stands admitted that the amount of compensation received was on account of an asset of the firm, directions can be given for preservation of the said amount as an asset or property of the firm.”

4. Other submission made on behalf of the appellants was also noticed by the Learned Single Judge that considerable expense had been incurred by the appellants estimated to the extent of Rs. 46,53,702.00, during the period from October 1978 to 15th April, 1999. It was urged that since no contribution had been made by the plaintiffs (respondents 1 to 3), no part of the compensation amount can be ordered to be deposited. This argument was also considered by the Learned Single Judge and was brushed aside observing that at this stage it was not necessary to go into the veracity or genuineness or reasonableness of the alleged expenses, the admitted position being that a sum of Rs. 38,62,548.04 had been received in June 1992 and a sum of Rs. 11,03,233.00 had been deposited by the appellants towards capital gains under Kar Vivad Samadhan Scheme and admittedly the property in question belonged to partnership firm and it was compensation payable for the part of the acquired property, therefore, direction was made for deposit of Rs. 9,66,000/- as an interim measure, pending disposal of the suit, which amount was directed to be kept in fixed deposit in this Court.

5. After passing of the aforementioned Order by the Learned Single Judge, two applications seeking review/modification of the same were filed, namely, RA. 29/99 by the appellants & IA.9515/99 by the respondents 4 to 6. The same were disposed on 19th November, 1999 observing that as the suit itself was for rendition of accounts only an interim direction had been given for deposit of the impugned amount and inter se liability between the defendants had not been determined. Appellants alone were directed to deposit the amount after learned Single Judge noticed the fact of encashment of the cheques by the appellants to the extent of Rs. 4,25,000/- signed by defendants 4 to 6 and intended for being paid to plaintiffs/respondents 1 to 3. While disposing of the aforementioned applications, Learned Single Judge took respective contentions of the parties into consideration and came to a prima facie view of the matter that directions deserves to be issued to the appellants to deposit the said amount.

6. Learned counsel for the appellants contended that since the amount had been received much prior to filing of the suit, interest of justice would have been met only by issuing a direction that to the extent of the amount ordered to be deposited by appellants, share of the appellants in the property shall remain charged. We have considered the facts and circumstances and the submission of learned counsel for the appellants. It is not shown that discretion has been exercised arbitrarily or perversely. Learned Single Judge considering the facts and circumstances of the case has exercised discretion in a particular way. The view taken by the Learned Single Judge is a possible view in the matter, which is not shown to be perverse or arbitrary. The mere fact that we might be persuaded to take a different view of the matter on the same fact, as is being contended on behalf of the appellants, will not be a ground for interference on the ratio of the decision of Supreme Court in Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd. reported as 1990 (Supp.) SCC 727.

7. Dismissed


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