IN THE COURT OF JT. CIVIL JUDGE (SR. DN) KALYAN.
Spl. C. S. No. 70/2021
1) Mangala Madhukar Bagul
2) Sandeep Madhukar Bagul.
3) Gulab Dhananjay Khangate.
4) Varsha Pramod Mehandale.
5) Pragati Sudhir Kamble.
6) Trupti Amol Khangate.
Versus
1) M/s. Gurukrupa Automobiles.
2) M/s. Gurukrupa Automobiles
through it’s Partners
Satish Gulabrao Barve.
ORDER BELOW EXH. 5
This is an application filed by the plaintiffs for grant of
temporary injunction. Perused the application and say. Heard both the
parties.
2) The plaintiffs contended that in the year 1986, Madhukar
Dashrath Bagul had purchased property Survey No. 60 Hissa No. 65/4,
area 10.27 R situated at Mauje Belavali, Tahsil Ambernath, Dist. Thane
(Hereinafter referred to as the ‘suit property’). Madhukar Bagul died
on 30.07.2018. He was the husband of plaintiff No.1 and father of
plaintiff No. 2 to 6. After his death, the name of plaintiffs are mutated
in the revenue record. Defendant No. 2 Satish Barve intended to take
land on rent to run the Petrol Pump. Therefore, he meet Madhukar
Bagul. Accordingly, rent agreement was executed between them for 10
years. Madhukar Bagul had executed Consent-deed in the name of
Indian Oil Corporation. Defendant No. 2 started the Firm business in
the name of defendant No.1 Gurukrupa Automobiles. Indian Oil has
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granted dealership to the defendants.
3) In the year 1996, defendant No.2 offered the Partnership
to Madhukar Bagul in lieu of renovation of Petrol dealership. Therefore,
Madhukar Bagul accepted his proposal and decided to join as a partner
with defendant No.2. On 01.07.1996, Partnership-deed was executed
between them. As per the Partnership-deed, defendant No.2 agreed for
51 % share and Madhukar Bagul agreed for 49 % share in the firm.
They both started partnership business. On 12.06.1996, Indian Oil
Corporation issued renewal letter in respect of said business for 15
years. Defendant No. 2 asked Madhukar Bagul to Execute deed of
Assignment in the name of Indian Oil corporation Therefore, as per the
say of defendant No. 2, Madhukar Bagul executed Deed of Assignment
pertaining to half share in the suit property. Actually, Madhukar Bagul
did not know about the Deed of Assignment. Defendant No.2 told
Madhukar Bagul that to run the business, it was necessary to execute
deed pertaining to 50 % share in the suit property. Till the death of
Madhukar Bagul, the business was smoothly running.
4) After death of Madhukar Bagul, defendant No. 2 is
claiming fifty percent ownership rights in the suit property on the basis
of said Assignment-deed. The plaintiffs raised objection before the
Tahsildar in respect of mutating the name of defendant No.2 in the
revenue record. The Tahsildar Court passed order and directed to
record the name of defendant No.2 in the Revenue record pertaining to
50 % share in the suit property. The plaintiffs have filed Appeal No.
27/20 before the Sub-Divisional-Officer, Ulhasnagar, against the said
order. The Appeal is pending. The plaintiffs have frequently asked
defendant No.2 to join them as the Partner in the Firm in respect of
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Order below Exh.5
there 49 % share. The defendant told that the Partnership of the
plaintiffs is came to an end. He threatened the plaintiffs not to come in
the Petrol Pump premises. The plaintiffs have every right to ask for
accounts in respect of their 49% share. Defendant No.2 is taking the
help of goons or puppets against the plaintiffs. He is filing false police
cases against them. Since 2018, defendant No.2 alone is taking the
profits in the Firm. The plaintiffs tried to make consolation with the
defendants. However, the defendants did not pay any heed. On
6.10.2020, they issued notice to the defendants and asked him to join
them as a Partners in the Firm and profits therein. Late Madhukar Bagul
executed Deed of Assignment in order to run the business. The
defendants are taking undue advantage on the said facts. Deed of
Assignment is not a Sale-deed. The defendants are intending to create
third party interest in the suit property. The plaintiffs have prima facie
case and balance of convenience. Defendant No. 2 has filed false Spl.
C. S. No. 29/2020 against them. The defendant is not willing to join
the plaintiffs as the Partners in the Firm. The plaintiffs have right to
cancel the Deed of Assignment. The plaintiffs have no source of
income. The defendant alone is illegally taking 100% profits. In the
prayer clause, the plaintiffs have prayed that -
a. The defendants be temporarily restrained from selling or creating
third party interest the suit property till decision of the suit.
5) Defendant No. 2 filed say at Exh. 14. He contended that
the application is false. Defendant No.1 Gurukrupa Automobiles is the
sole Proprietary concern and not the Firm. Satish Gulabrao Barvey is
no longer as the partner in M/s.Gurukrupa Automobiles. The
partnership is already dissolved. The suit is not within limitation. The
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plaintiffs have suppressed material facts from the Court. The suit land
was standing in the name of Madhukar Bagul. Satish Barve meet
Madhukar Bagul and Lease deed was prepared between them. For the
Renewal license, Satish Barve made offer to Madhukar Bagul in respect
of adding Partner in the business. Defendant No.2 admits the contents of
the partnership pertaining to shares and profit. After death of Madhukar
Bagul there were serious disputes and differences between Satish Barve
and Sandeep Bagul. The plaintiffs threatened the Petrol Pump staff
members and took away Rs. 24 lakhs cash amount by way of extortion.
Therefore, the defendants filed complaint against them. The plaintiffs
made correspondence to the Indian Oil Corporation and asked it to
Cancel the license. They also filed complaint before the superintendent
of police. The plaintiffs have acted against the interest of Firm. The
relationship between the parties is became worst. Therefore, the
plaintiffs are not admitted as the partners in the Firm. The plaintiffs
themselves are not interested to carry the Dealership business. There
was disagreement between the legal heirs of Madhukar Bagul
themselves in respect of becoming partner in the Firm. There was no
unanimity between them. Deed of assignment dated 22.07.1996 was
supported by lawful consideration. Madhukar Bagul transferred 512
sq.mt area in the name of defendants for valuable consideration. On
08.08.2019, plaintiff No.1 issued legal notice to the defendants and
dissolved the partnership. Therefore, the defendant has filed Civil Suit
No. 29/2020 seeking declaration that he be declared that the sole
proprietor of the Petrol Pump. The plaintiffs are not entitled to claim
any relief. There is no evidence on record that the defendants have
taken the steps to transfer the suit property. The application is filed only
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to pressurize the defendants and to admit the plaintiffs as the partners
in the Firm. The application is liable to be rejected.
6) The points for determination and findings thereon with
reasons are as under -
Sr. No. Points Findings
1 Whether prima facie case exists in favour of .. In the negative.
the plaintiffs ?
2 Whether balance of convenience lies in .. In the negative.
favour of the plaintiffs ?
3 Whether the plaintiffs will suffer irreparable .. In the negative.
loss, if injunction is not granted?
4 What order? .. As per the final
order.
REASONS
POINT NOS. 1 AND 2 -
7) So far as prima facie case is concerned, a party must show
his legal right over suit property. So far as balance of convenience is
concerned, a party must show that he will succeed in a suit, after
weighting the prima facie case.
8) Learned Counsel for the plaintiffs filed Written Note of
arguments at Exhibit 31. Learned counsel for the plaintiffs submitted
that, the averments in plaint & application and the documents on record
clearly show that, the plaintiffs have prima facie case and balance of
convenience in their favour. The defendants have deceived the plaintiffs.
Defendant No. 2 is intending to grab the suit property by executing false
and bogus documents. If temporary injunction is not granted then the
plaintiffs will suffer irreparable loss.
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9) Learned Counsel for the defendants submitted that the
plaintiffs are not entitled to any relief. The defendant is legal and
bonafide purchaser of the suit property. The application is liable to be
rejected.
10) It is settled that while deciding temporary injunction
application, the Court can peruse the documents filed on record. The
plaintiffs have filed following documents -
i. 7/12 extract of the suit property
ii. Deed of Partnership dated 01.07.1996.
iii. Deed of Confirmation dated 22.07.1996
iv. Death certificate of Madhukar Bagul.
v. Copy of Ferfar Patra
vi Legal notice dated 06.10.2020
11) Defendant No.2 has filed following documents -
Copy of legal notices dated 01.03.2019, 30.04.2019 and 08.08.2019
12) Considering contentions of both the parties and documents
on record, it is just to mention the recitals of Assignment-Deed and
Partnership-deed. In the Assignment-Deed dated 22.07.1996 it is
mentioned that -
In view of the assignee admitting the assigner as the Partner in the
said Firm and to the said business, the assigner agree to assign the 50%
share, right, title, interest and claim of any nature whatsoever in respect of the
said property the assignee free of costs.
Now this indenture witnesseth that in pursuance of the said
agreement and in consideration of Assignee admitting the assignor as the
partner in the said firm and in the said business to the extent of 49% in the
said firm, the Assignor do hereby assign unto the assignee all his 50% right,
title interest claim of any nature in respect of that piece and parcel of land,
more particularly mentioned in the schedule IInd written hereunder,
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hereditaments and premises or ground of land revenue tenure situated lying
and being at revenue village Balavali Tal. Ulhasnagar, Dist. Thane, in the
Sub-Registration Dist. Ulhasnagar and Registration Dist. Thane bearing
private plot No.4, admeasuring about 1028.12 sq. mtrs. Situated in Survey
No. 60 and 65 Hissa No.4 (part) more particularly described in the Schedule
written hereunder Together with the messuage or dwelling house built
thereon and Together with all houses out houses eifices buildings yards
compound sewers drains ditches fences trees plants shrubs paths passages
common gulliee walls waters courses lights liberties privileges easements
profits advantages rights members and appurtenances whatsoever to the said
property or any part thereof belonging or in any way appertaining to or with
the same or any art thereof now at or any time heretofore usually held used
occupied or enjoyed or reputed or known as part or member thereof and to
belong to be appurtenant thereto and the 50% of the estate right title interest
property claim and demand what soever at law and equity of Assignor and to
the said premises or any part thereof to have and to hold all and singular the
said land heridetaments and premises or any part thereof hereby assigned
granted unto the assignee in perpectuaity and that notwithstanding any such
thing as aforesaid he the assignor now has in himself good right and
absolute power to assign the said 50% share in the said property and it shall
be lawful for the assignee from time to time and all time hereafter peaceable
and quietly to hold possess and enjoy the 50% share in the said property
hereby assigned or expressed so to be alongwith the assignor with their
appertainances and receive the 50% rents profits thereof for his own use and
benefit without any eviction interruption claim or demand whatsoever from or
by the assignor or from or by any other person persons lawfully or equitably
claiming from under or in trust for him and that free and clear and freely
clearly and absolutely acquited exonered released or forever discharged or
otherwise by the Assignor well and sufficiently saved and defended kept
harmless andindemnified of and/or from and against all estates title charges
and encumbrancs whatsoever made executed occasioned or suffered by the
Assignor or by any other persons lawfully or equitable claiming or to claim
by from under or in trust for him.
Both the parties hereto do hereby declares that the assignor has
assigned only his 50% right, title interest in the said property, that is
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Order below Exh.5
therefore, for the purposes of calculations of stamp duty the present Govt.
Market Value of the 50% of the saiid property is Rs. 3,00,000/- on which
proper stamps of Rs. 25,500/- paid herewith.
13) In the Partnership-Deed dated 01.07.1996 following
recitals are mentioned -
The Capital of the Partnership shall be the same of Rs. 50,000/- and
shall belong to the partners in a shares namely 50% share to the party of the
First part and 49% share to the party of the other part. And if any time
hereafter any further capital is required for the purpose of the Partnership
will be made by the party of the Second Part only.
The firm shall maintain all necessary and proper books of accounts at
its office and entries of all the receipts, payments and other matters as are
usually done and entered in accounts books, shall be made in the books of
accounts. The statement of account of all the assets, liabilities and profits
and loss of the Partnership for the year shall prepared as on 31 st March of
every year and such account shall be signed by all the Partners. The accounts
would signed by both the shall be between the Partners and as to all matters
stated therein unless same manifest prepared is found within one month after
signing thereof in each case such prepared in all be rectified.
The interest at the rate of 18 % per annum or as may be prescribed
under section 40(b)(iv) of the Income Tax Act, 1961 or any other applicable
provisions as my be in force in the Income Tax Act 1961 or at a lower rate as
may be agreed to by and between the parties from time to time, shall be
paid to the partners or credited to the partners on the amount standing to the
credit of the account of the partner. Such interest shall be considered as an
expenditure of the firm and shall be debited to the Profit and Loss Account
of the firm before arriving at the divisible profit or loss.
If either Partner shall die during the continuation of the Partnership
any one of the heir and legal representative of such deceased partner will be
admitted to partnership firm and no partner shall be inducted in the
dealership firm without prior written approval of Indian Oil Corporation and
that the partnership will not dissolve and if no such heir and legal
representative exercise there upon to be partner then surviving partner willl
9 Spl.C.S. No.70/2021
Order below Exh.5
have option to purchase share of the deceased partner shall entered into a
covenant to indemnified the representatives from the existing and future
debts, liabilities and engagements of the Partnership.
If any of the surviving partner shall exercise upon all purchasing the
share and interest of the deceased or if the partnership shall be determined
during the life of the partner the partnership shall be wound-up and assets
will be distributed in terms of the Partnership Act,1932.
14) In the present case, execution of Partnership-Deed and
Assignment-Deed is not disputed. It is clear that 7/12 extract or
revenue record is to be used for fiscal purposes. The appeal against the
order passed by Tahsildar is pending before the Sub-Divisional-Officer.
As supra dictus, in the Assignment-Deed, it is mentioned that -
Both the parties hereto do hereby declares that the assignor has assigned only
his 50% right, title interest in the said property.
Whether Assignment-Deed can be treated as the Deed of transfer of title
or Sale-deed, it is the matter of evidence and arguments. The instant
suit is for joining the plaintiff as the Partner in the Firm and cancellation
of Assignment-deed, Settlement of accounts and Permanent injunction.
The plaintiffs have not filed documents whether the defendants have
paid rent of suit property to them. The defendants have not filed
documents in respect of dissolution of partnership. It is open for the
plaintiffs to raise their rights and interest in the Partnership Firm. On
perusal of the instant application, it is mentioned that MhM vkWQ
vlkbuesaVP;k vk/kkjs o 7@12 P;k uksanhpk xSjQk;nk ?ksowu izfroknh dz 2 gs lnj
feGdr vU; fr&gkbZr blekl fodw ‘kdrkr fdaok fr&gkbZr ek.klkpk gDd
fgrlaca/k izLFkkfir djq ‘kdrkr- The plaintiffs have not shown about the
threats or actions of defendant No.2 in respect of creating third party
interest in the suit property. They have not mentioned that on which date
defendant No. 2 has tried to make negotiation to third party and the
10 Spl.C.S. No.70/2021
Order below Exh.5
name of such third party. It can be said that the plaintiffs have not
shown prima facie case and balance of convenience in their favour. In
the result, findings to the above points are recorded in the negative.
POINT NOS. 3 AND 4 -
15) In the above reasoning, it is concluded that the plaintiffs
have no prima facie case and balance of convenience in their favour.
Therefore, there is no question of irreparable loss. In the result finding
to point No. 3 is recorded in the negative. Hence, I pass following
order -
ORDER
1. Application (Exh. 5) stands rejected.
2. Costs in the main cause.
(Rohidas Laxman Wankhade)
Date : 21.04.2023. Jt. Civil Judge, S.D. Kalyan.
