Paramjeet Singh vs Sohan Singh and Others

K.S. Gupta, J.—On the objection taken in the written statement, the following preliminary issue was framed on 29th July, 1991:-

Whether the present suit is not liable to be stayed u/s 10 CPC?

plaintiff filed suit alleging that under the partnership deed dated 1.4.69 plaintiff, defendants No. 1 & 4 have been carrying on business in the name of M/s. Calcutta Soap Mills at D-1/1, Rana Pratap Bagh and the share of the plaintiff and defendant No. 1 in the profits and losses was 40% each, while that of defendant No. 4-20%. Plot No. 112, Block-A in Wazirpur Industrial Area was leased out by DDA - defendant No. 5 to the partnership firm and the lease deed was registered vide registration No.2452 dated 15.6.74. partnership business was shifted in 1974 from said D-1/1, Rana Pratap Bagh to the building constructed on the allotted plot in 1973. Defendant No.4 retired from the partnership firm on 30.4.75. A new firm by the name of M/s. Calcutta Soap Oil Industries was thereafter constituted on 1.5.75. Defendants 2 & 3, brothers of the plaintiff were taken in the firm as partners in addition to the plaintiff and defendant No.1. Share of the plaintiff in the profits and losses remained the same. It is alleged that on the assurance given by defendant No.1, father of the plaintiff that the amount of the share in the aforesaid plot and building would be paid to him, the plaintiff signed the relinquishment deed dated 11.9.1976 relinquishing the right in the leased plot and the building. However, the relinquishment deed was not presented for registration as the amount due to the plaintiff was not paid. It is stated that defendants 1 to 3 started compelling the plaintiff to retire from the firm and forced him to sign the dissolution deed in March 1982. In para No.4 of the dissolution deed, it is mentioned, that a sum of Rs. 60,000/- has been paid tentatively to the plaintiff by means of four post dated cheques and the balance amount of his share found due will be paid to him by 30th April, 1982, Till date, balance amount of the share of the plaintiff has not been paid. Although, possession of a rented shop which was actually godown in the gali was handed over to the plaintiff but the plaintiff was constrained to surrender its possession to the landlord same being unsuitable for business purpose. On coming to know that defendant No.1 has got the lease hold right in respect of the said plot transferred exclusively in his name in collusion with officials of defendant No.5. the plaintiff served notices on defendants 1 & 5 challenging the transfer. It is further alleged that after serving legal notice dated 5.8.82 through Sh. B.L. Monga, Advocate, on defendants 1 to 3 calling upon them to pay 40% share in the leased plot and the building as well as in business, the plaintiff filed suit for declaration and injunction against them on 16.2.83 which is pending before Sh. R.N. Jindal, sub-Judge. Relief of declaration claimed in that suit is to the following effect:-

(a) The Relinquishment deed dated 11.9.1976 and Dissolution deed dated 10.3.1982 are illegal, inoperative and unenforceable documents and that all the actions taken by the defendants on the basis of said documents are illegal, arbitrary high handed, unjust, unwarranted and uncalled for:

(b) The plaintiff continues to be a partner of M/s. Calcutta soap Mills subsequently named as M/s. Calcutta Soap Oil Industries having 40% shares in all the assets of the said firm including the leasehold rights of Plot No. 112, Block-A, Wazirpur Industrial Area, Delhi.

Defendants 1 to 4 against the terms and conditions of the lease deed and without the permission of defendant No.5 have rented out the building constructed on the said plot to five tenants and are also collecting rent/commission of Rs. 10,000/- per month from them. Defendants are also having income from the business of M/s. Calcutta Soap Oil Industries. Total income by way is Rs. 15,000/- per month wherein the plaintiff has 40% share. Reliefs claimed by the plaintiff in the suit are thus:-

(i) Pass the decree in favor of the plaintiff against the defendants after determining the plaintiff share of movable and immovable properties of M/s. Calcutta Soap Mills and Calcutta Soap Oil Industries. This Hon''ble Court may please determine the plaintiff share and pass the decree for recovery of determined amount and then the court fee shall be paid.

(ii) Pass the decree of masonry profits of Rs. 15,000/- p.m. in favor of the plaintiff against the defendant of the 40% share earned from the land and building of M/s. Calcutta Soap Mills, A- 112, Wazirpur industrial Area. Decree may also be passed for further income earned month by month.

(iii) Pass the decree in favor of the plaintiff against the defendants of plaintiff net share found due to the defendants in regard to the firms M/s. Calcutta Soap Mills or Calcutta Soap Oil Industries.

(iv) Any other relief, which this Hon''ble Court may deem fit, just and equitable under the circumstances of the case be also granted in favor of the plaintiff.

In the joint written statement filed by defendants 1 to 4, it is alleged that defendant No.1 initially started soap business at D-1/1, Rana Pratap Bagh Along with his brother who subsequently retired from the business. plaintiff and defendants 2 & 3 were minor at that time. Defendant No.1 joined the plaintiff as partner in the business on his attaining majority in or about 1969. Defendants 2 & 3 too were joined as partners later on. It is alleged that defendant No.1 acquired from defendant No.5 Plot No. A-112, Wazirpur Industrial Area for the business. This plot was initially leased out by defendant No.5 in the name of the firm but subsequently it was transferred in the name of defendant No.1. Partners executed a relinquishment deed dated 11.9.1976 relinquishing their right and title in the plot in favor of defendant No.1 After marriage, plaintiff wanted to be separated from the partnership business and the firm was, Therefore, dissolved by the deed of dissolution dated 10.2.82. Accounts were settled as is evident from the last balance sheet which is duly signed by the plaintiff. On dissolution, plaintiff got a share which comprised of shop bearing No. 1990, Mir Dhan, Lal Kuan, Delhi with telephone installed therein and cash amount of about Rs. 60,000/-. plaintiff thereafter started his own business in the name of M/s. P.S. Industries. It is admitted that the plaintiff has filed suit for declaration and injunction which is still pending. Application filed by the plaintiff seeking injunction was dismissed on merit. He also filed an application for amendment of the plaint to incorporate the relief of rendition of accounts. However, that application was dismissed by the sub-Judge. Since no appeal has been filed against the order declining to amend the plaint, the order passed by the sub-Judge has become final between the parties. It is further stated that the suit is liable to be stayed u/s 10 CPC.

I have heard the plaintiff and Ms. Nandini Sahni appearing for the defendants.

As stated in the plaint in S.No. 236/85 filed for declaration and injunction which at the time of the institution of the present suit was pending before Sh. R.N. Jindal sub-Judge, the reliefs claimed by the plaintiff are that the relinquishment deed dated 11.9.1976 and the dissolution deed dated 10.3.82 are unenforceable against him and he still continues to be a partner of M/s. Calcutta Soap Mills and M/s. Calcutta Soap Industries having 40% share in the assets of both these firms including the leasehold rights in Plot No. 112-A, Wazirpur Industrial Area. Evidently, reliefs claimed in this suit minus the rent/commission part referred to in para No. 18 of the plaint are substantially the same as claimed in S.No. 236/83. Relief in regard to rent/commission part too is dependent on relinquishment deed dated 11.9.1976 and dissolution deed dated 10.3.1982 which are sought to be declared illegal and unenforceable in aforesaid S.No. 236/85. Obviously, dismissal of aforesaid S.No.236/85 will none it the plaintiff in this case. The suit, thus, deserves to be stayed u/s 10 CPC. Preliminary issue is answered accordingly.