JUDGMENT
K. Ramamoorthy, J.
(1) I.A.5578/93 The prayer in the petition is in the following terms :- “ITis, therefore, respectfully prayed that the defendant be restrained from carrying on similar business in the firm name M/s. R. Kant & Co. and also from using any property of the firm for his own benefit until the affairs of the firm have been completely wound up. The defendant be also directed to comply with the directions contained in order dated 15.3.1983 and 15.4.1983 passed by this Hon’ble Court.”
(2) It was contended by the learned counsel for the plaintiff that the defendant has started a big project comprising several acres of land which includes the property belonging to the firm in which the plaintiff is a partner and in the event of the defendant selling all the properties to third party and ultimately if the plaintiffs case is accepted by this Court the plaintiff will not be able to get the property as such and, therefore, the plaintiff has filed this petition under Section 53 of the Indian Partnership Act,
(3) Before I deal with this petition, I want to refer to the pleadings in the suit. The suit is for the following reliefs :-
(A)for rendition of accounts be passed in favour of the plaintiff and against the defendant. A Local Commissioner be appointed to go into the accounts of the firm and thereafter;
(B)a final degree for the amount found due to the plaintiff from the defendant on accounting be passed after taking accounts from the defendant in favour of the plaintiff and against the defendant;
(C)The plaintiff further prays that : A receiver be appointed to take possession of the lands in Village Anangpur, Tehsil Ballabhgarh, District Gurgaon, and the offices of the partnership firm at 510, ‘Double Storey, New Rajinder Nagar, New Delhi, and 407, Vishal Bhawan, Nehru Place, New Delhi, and all other partnership assets lying therein or otherwise and to prepare a true and full inventory of all the assets and properties of the partnership firm, besides .taking possession of all the account books and other records of the firm; and
(D)A perpetual injunction be issued in favour of the plaintiff and against the defendant thereby restraining the defendant, his Agents or employees from selling, leasing out or otherwise disposing of in any manner whatsoever the properties, partnership assets or any asset of the said partnership business and/or from transferring or otherwise alienating the partnership property in any manner and also restraining the defendant from describing himself as the sole Proprietor of the business and assets of the said partnership firm M/s. R. Kant & Co.;
(E)Interest @ 18% per annum pendente lite and future be awarded to the plaintiff against the defendant.
(F)Any other relief or further relief which this Hon’ble Court deems Fit and proper in the circumstances of the case be also awarded to the plaintiff and against the defendant.”
(4) The case of the plaintiff is that on 11.9.80 a partnership deed was entered into between the plaintiff and the defendant for the purchase of land in Village Anangpur, Tehsil Ballabhgarh, District Gurgaon under the name and style of M/s. R. Kant & Co. On 23.9.80 the plaintiff and the defendant entered into partnership and opened a bank account in the name of M/s. R. Kant & Co. On 4.10.80 at the request of the defendant, the plaintiff deposited a sum of Rs. one lakh towards his capital in the partnership firm for investment for the purchase of lands. It was understood between the parties that the land already purchased by the defendant under the name of the firm would form the partnership assets and shall be treated as his share in the partnership business. The plaintiff in all has-invested a sum of Rs. 3,51,000.00 in the business. In October 1980 the plaintiff hired premises No. 407, Vishal Bhawan, Nehru Place, New Delhi and got it furnished. On 1.12.80 the defendant shifted all the records of the partnership from Rajinder Nagar Office to Nehru Place Office. On 17.12.80 the defendant got a writing executed in his favour taking over possession of the said Nehru Place, New Delhi with a mala fide intention to grab at the exclusive control of the office.
(5) On 9.2.81 the plaintiff served a notice dissolving the firm w.e.f. 18.12.80 when it is alleged by the plaintiff that he served a notice on the defendant. On 23.2.81 he came to know that M/s. R. Kant & Co. was not a proprietory concern as represented by the defendant but a partnership concern and Shri R. Kant was not competent to enter into any transaction with third parties. It is also stated by the plaintiff that the defendant was not competent to enter into the second document dated 23.9.80 which is called by the plaintiff as supplementary agreement. In paragraph 15 of the plaint, the plaintiff would state that “the defendant has committed breach of the partnership agreement or in the alternative the said agreement dated 11.9.80 and the alleged supplementary agreement of September 1980 are wholly void, illegal or are voidable at the option of the plaintiff as there was no consensus ad idem between the parties and the whole transaction is tainted with illegality.” In paragraph 19 the plaintiff admits that the partnership firm stood dissolved w.e.f. 9.2.81. The plaintiff states that the defendant is liable to render accounts. In paragraph 24 it is stated that the defendant is liable to render account and then make payment to the plaintiff and the plaintiff is entitled to all the profits out of the sale of 1000 bighas and 203 bighas, totalling 1203 bighas of land vested in the partnership business and forming part of the stock in trade of the partnership business. In paragraph 31 the plaintiff states that the value of the suit for purposes of jurisdiction is more than Rs. twenty lakhs, which is only a tentative amount that may be found due to the plaintiff from the defendant on rendition of accounts.
(6) The defendant filed a written statement traversing the allegations in the plaint and stated that the plaintiff could not act upto the terms of the agreement. Therefore, there was a subsequent deed in and by which the plaintiff got himself relieved and, therefore, the plaintiff is not entitled to any relief.
(7) The petition can be disposed of on the simple ground that the plaintiff himself has come forward with a case of illegality and, therefore, the plaintiff cannot get any relief by virtue of section 23 of the Contract Act, 1872 because the learned counsel for the plaintiff argued the matter elaborately, I propose to consider the matter in some detail.
(8) The learned counsel for the plaintiff submitted that when once partnership is admitted and when it is common ground the partnership to dissolve on 9.2.81, the defendant cannot have any objection to the partnership asset, namely the property which had vested in the partnership being protected till this Court adjudicates on the rights of parties on the question of rendition of accounts. It is the case of the plaintiff that the partnership deed dated 11.9.80 has to be given full effect to. In clause 13 it was stated “that it has been agreed between the partners that all the title deeds of the land standing in the name of M/s. R. Kant &. Co. shall be kept in the office of the firm. Similarly, the title deeds of whatever the land i.e. 1400 bighas shall be purchased by the firm that the investment of party No. 2 shall also remain in the office of the firm. The title deeds shall remain with the firm by way of collateral security of party No. 2. The second party shall have first lien on the sale proceeds of the land to be sold by the firm.” The learned counsel for the defendant relied upon the subsequent agreement dated 11.9.80. Clause I of the document reads “that the second party Shri 0m Parkash Kedia shall invest in entirety for the purchase of 1400 bighas of land and its development in the name of the partnership firm.” Clause 6 of the partnership reads as under:- “THAT party of the second part 0m Parkash Kedia undertake and acknowledge irrevocably that if he did not invest for purchase of 1400 bighas of land and/or caused any harm to party of the first part Rama Kant, then the partnership agreement shall fizzle out ipso facto. The party of the second part would be entitled to claim back his investment and would fully indemnify the party of the first part with all losses and damages which the party of the first part may suffer.”
The second part, referred to above in the agreement is the plaintiff in the suit.
(9) It is admitted that the plaintiff did not contribute any amount to the purchase of 1400 bighas of land. It is common ground that 203 bighas of land was purchased with the money deposited by the plaintiff. In view of the specific agreement in clause 6 the plaintiff would be entitled to get back only his investment in the partnership. What is argued by the learned counsel for the plaintiff is assuming the clause is correct and binding on him, he would be entitled to claim back his investment i.e. 203 bighas of land and, therefore, an order should be passed preserving 203 bighas of land in the project, now proposed by the defendant.
(10) The learned counsel for the defendant submitted that the defendant had made arrangements for a huge project consisting of several acres of land and the cost of the project is in the region of about Rs. eight crores and the 203 bighas of land does not come within the ambit of the project and in case the plaintiff succeeds he can always get back his 203 bighest land if the plaintiff is able to locate the land on ground in the village. ‘Learned counsel further submitted that in the village there are certain lands which vested in the community and there are other lands owned by individuals and there has been mix up in the revenue records and in the project undertaken by the defendant these 203 bighas of land docs not form part of it. In any event, the learned counsel for the defendant fairly submitted that the defendant is ready and willing to give a bank guarantee to the extent of Rs. twenty lakhs, which according to the plaintiff is the tentative amount that maybe found due on rendition of accounts, to safeguard the interest of the plaintiff.
(11) The learned counsel for the plaintiff contended that the plaintiff had summoned documents from the revenue department showing the properties in the possession of M/s. R. Kant & Co. in the village and khasra numbers which are in possession of the partnership are also shown in the revenue records and those khasra numbers would take in this 203 bighas of land also. The learned counsel also stated that concerned revenue official has given a certificate to that effect. Per contra, learned counsel for the defendant contended that an official from the revenue department has given a certificate to the effect that the 203 of bighas of land does not form part of the project of the defendnat. The question of fact mooted out by the parties could be decided only on a very close examination of the documents and the officials of the revenue departments. In the light of the rival contentions, I did not want to enter into the controversy and, therefore, I put it to the learned counsel for the plaintiff whether would it not be in the interests of the plaintiff to accept the bank guarantee offered by the defendant. But the learned counsel for the plaintiff categorically stated that the plaintiff would not be satisfied with any bank guarantee and that the property should be carved out of the project now done by the defendant so that if he succeeds he gets back the property in specie and the money value would not compensate the plaintiff.
(12) I am unable to appreciate the stand of the plaintiff. The plaintiff, as apparently, has not realised the exact position of his case. He is entitled to have full confidence on the strength of his case but he must also consider what happens if his case is not accepted in toto and ultimately he is able to realise what he wants. The only objection of the plaintiff seems to be that the defendant, who has now undertaken a very big job, would come round if pressure is put on had and that he can get the property in a developed stage and that would be very much valuable than the money which he has claimed in the suit. Prima facie, I feel that the whole thrust of the plaintiffs case is that the defendant should pay him the money when as per clause 6 of the partnership deed dated 23.9.80 the partnership would fizzle out the plaintiff would not be entitled to get any property from the defendant. The intention at that time perhaps was that the plaintiff was not able to further pump in any money and the defendant was to do everything and, therefore,the plaintiff was satisfied that he got back the money here invested otherwise he would have said for the money is invested 203 bighas was purchased and, therefore, 203 bighas of land should come to him. Because of the increase in value of property, the plaintiff has changed his stand. I am unable to accept the contention on behalf of the plaintiff. The project now undertaken by the defendant cannot be stopped which will affect the rights of third partis and the defendant had committed himself to so many persons and he has paid substantial amounts to the Government Authorities for the sanction of the plan and other formalities. Therefore, it would be inequitable to grant an injunction in the form in which it is prayed for by the plaintiff. Taking into account the whole facts, I feel that interests of justice will be served if the defendant is directed to furnish bank guarantee to the tune of Rs. twenty lakhs within eight weeks from today to the satisfaction of the Registrar of this Court from a nationalised bank. Recording the above undertaking by the defendant, the injunction petition is dismissed. If the defendant fails to furnish the bank guarantee within time the plaintiff would be entitled to proceed against the defendant in accordance with law.
(13) IA.8395/93 This application is filed by the plaintiff under Order 11 Rule 12 Cpc, 11 years after the institution of the suit. I feel it is wholly unjustified and in the of the relief prayed for the plaintiff is attempting to harass the defendant. Therefore, the petition stands dismissed.
(14) IA.8460/93 This application is filed by the defendant for the production of the original partnership deed dated 11.9.80 and also the supplementary agreement dated 23.9.80. It is stated in the petition that the defendant has produced the signed copy of the agreement and it is for the plaintiff to produce those documents. Already the parties have admitted the documents and the clauses in the documents have already been referred to by this Court on an earlier occasion. If the plaintiff does not produce the original documents the defendant can always lead secondary evidence under Section 65 of the Evidence Act. Therefore, this petition is dismissed, without prejudice to the rights of the parties to prove their case at the time of the trial of the case.
(15) IA.10631/93 This is an application filed by the plaintiff under Order 39 Rule 2A CPC. It is stated that on 15.3.83 this Court directed the defendant to deposit the title deeds of 203 bighas of land. It is admitted that the defendant has deposited the title deeds as per the order passed by this Court. According to the plaintiff, the 203 of bighas of land has been subject matter of mutation and it is mutated infavour of third parties and the defendant has sold away the land to third parties. This is a matter to be considered at the time of the trial of the case.
(16) Post this Ia along with the trial of the case.
(17) IA.2667/94 This application is filed by the plaintiff claiming the following reliefs :- “A)Issue summons at the present stage itself to the Government of Haryana through Commissioner and Secretary to the Government of Haryana/Director, Town & Country Planning Department, Chandigarh, directing it/him to personally or through an authorised officer to attend this Hon’ble Court and to give evidence and to produce before this Hon’ble Court the records to indicate as to which particular lands identified with the help of khasra numbers, title deeds and mutation numbers, forms the lands which are the subject matter of the lay-out plan of the composite parcel of land, for which the aforesaid permission for colonization and development has been granted in terms of the sanction letters/communication dated 17.4.84, 11.7.1990, 12.7.1990 and 10.4.1991 and in that behalf.”
THE plaintiff is attempting to make a roving enquiry when it is for the plaintiff to establish his case. It is not for the Government of Haryana to prove the case of the plaintiff. It is slated in paragraph 9 that the present application has been moved with a view to assist this Hon’ble Court in ascertaining the exact location of 203 bighas of land so that the present controversy may be resolved. That is begging the . question. Learned counsel for the plaintiff submitted that he obtained certified copies from the revenue authorities on the basis of which, as I had noticed earlier, he invited me to go into the question of location of 203 bighas of land. Therefore, even according to the plaintiff he has produced sufficient materials for identifying 203 bighas of land on ground. It is, therefore, wholly unnecessary to drag in the Government of Haryana. Without prejudice to the rights of the plaintiff and the defendant to substantiate their respective contentions, this application is dismissed.
(18) CCP. 160/94 The defendant has filed this application for contempt claiming the following reliefs :-
“(I)issue notice to the respondent and initiate proceedings for contempt of Court and punish the respondent in accordance with law,
(II)direct respondent to issue fresh public notice in the Hindustan Times withdrawing the notices ‘issued on 25th Sept.’94, 2nd October, 1994 and 8th October, 1994 and also tender unconditional apology to this Hon’ble Court and also to notify to the public that there was no restraint order against the petitioner from selling the land in Kant Enclave;”
THE case of the defendant-petitioner is that the respondent-plaintiff has published in the newspaper dated 2.10.94 in the following manner :-
“KANTENCLAVE?
Title in DISPUTE
Buying a Plot In ‘KANT ENCLAVE?
THINKAGAIN
THIS notice is inserted for the benefit of those unsuspecting innocent intending purchasers desiring to purchase plots of land in the much fouled and promised “Kant Enclave”. The ownership of land in “Kant Enclave” is disputed, and the said project is seriously flawed, so much so, that even the Hon’ble Delhi High Court in suit No. 1460 of 1982 relating to a dispute between our client Shri O.P. Kedia and Shri Rama Kant, the two partners of Messrs. R. Kant & Co. has passed orders of restraint against Shri Rama Kant from selling or disposing of the said land popularly known as “Kant Enclave”. In view of the orders of restraint passed by the Hon’ble Delhi High Court, The general public is therefore cautioned and warned, that any monies paid to Messrs. R. Kant & Co. for the purchase of land/plots in “Kant Enclave” may result in the loss of their investment.
TELE:7265336, (ASHWANI Kumar MATA)
7269345,5708269ADVOCATE Law 7 REGAL
ATTORNEYS& CONSULTANTS
A-505.SOMDUTTCHAMBERS
1,BHIKAJI Cama PLACE
NEWDELHI-110066.”
(19) The petitioner has given a reply notice dated 3.10.94 in the following terms :-
“DATED3rd October, 1994
KANTENCLAVE
THIS public notice is being issued on behalf of our client, R. Kant & Company, owner of Kant Enclave and this is to notify to the public that there has been no restraint orders against M/s. R. Kant & Company or Sh. Rama Kant from selling or disposing of land in Project “Kant Enclave” by Hon’ble High Court or by any other court. Public notices have been issued by Mr. Ashwani Kumar Malla,Advocate, deliberately and wrongly mentioning that there has been restraint order by High Court in respect to Project land. The public notices have been issued in order to create confusion and cause damage to the name and deputation of our client and to jeopardise the Project. Our clients are contemplating to take appropriate action against him and Mr. O.P. Kedia for deliberately making false statements. This is further to notify to the public that Mr. O.P. Kedia is not a partner in R. Kant & Company, nor is he associated with the Project, Kant Enclave in any manner The development work inn Kant Enclave is proceeding with full swing and it is categorically pointed out to the public that M/s. R. Kant & Company is fully competent and authorised to develop and sell the land in Kant Enclave. Public is advised to ignore any notice, which is contrary to this factual position.
BHASIN&BHASINADVOCATES.
C-14(FIRST FLOOR)
South extension Pt Ii,
NEWDELHI-110049.”
THE question whether the 203 bighas of land forms part of Kant Enclave is to be decided by this Court at the time of the trial of the case.
(20) The contempt complained of is in the nature of criminal contempt and by virtue of Section 15 of the Contempt of Courts Act, this Court cannot take cognizance of it. I do not want to enter into the merits of the contentions of the parties.
(21) In the above prima facie view, contempt petition is dismissed leaving open the right of the petitioner to take appropriate proceedings, if he is so advised.
(22) IA. 5578/93 moved by plaintiff for injunction is dismissed . IA. 8395/93 filed by the plaintiff under Order 11 Rule 12 Civil Procedure Code is dismissed. IA.8460/93 moved by the defendant for production of original documents is dismissed. IA.10631/93 moved by plaintiff under Order 39 Rule 2A Civil Procedure Code be listed along with the trial of the case. IA. 2667/94 filed by plaintiff for direction to the Secretary to the Govt. of Haryana/Director. Town & Country Planning Department, Chandigarh to attend this Court or to produce records is dismissed. CCP.1160/94 filed by the defendant is dismissed leaving open the right of the petitioner to take appropriate proceedings, if he is so advised.
(23) S.NO. 1460/82 Post the suit for framing of issues on 23rd of May 1996.