Surendra Agarwala vs Indira Gupta & Ors

Krishna Rao, J

The plaintiff has filed the suit being C.S. No. 128 of 2016 for partition and administration of the assets and properties of the Agarwala family.

The parties to the suit are the sons and daughters of Hazari Lal Agarwala (since deceased) and are governed by the Mitakshara School of Hindu Law.

The one Hazari Lal Agarwala, the patriarch was a person governed by the Mitakshara School of Hindu Law. He passed away leaving behind the following legal heirs:

a) Indira Gupta – Eldest daughter (hereinafter referred to as the Defendant No.1).

b) Narendra Kumar Agarwala – Eldest son (hereinafter referred to as the Defendant No. 2).

c) Manju Khiroria – Second daughter (hereinafter referred to as the Defendant No. 3).

d) Saroj Agarwal – Third daughter (hereinafter referred to as the Defendant No. 4).

e) Pushkar Kumar Agarwal – Second son (hereinafter referred to as the Defendant No. 5).

f) Surendra Agarwala – Third son (hereinafter referred to as the Plaintiff).

g) Usha Agarwal – Fourth daughter (hereinafter referred to as the Defendant No. 6).

h) Shekhar Agarwal – Youngest son (hereinafter referred to as the Defendant No. 7).

i) Shobha Agarwal – Youngest daughter (hereinafter referred to as the Defendant No. 8).

In the suit, the plaintiff has filed three applications being G.A. No. 2 of 2016 (Old No. G.A. 1840 of 2016), G.A. No. 5 of 2017 (Old G.A. No. 203 of 2017) and G.A. No. 12 of 2021, praying for the following reliefs:

G.A. No. 2 of 2016 (Old No. G.A. 1840 of 2016):

“a) A fit and proper person be appointed as receiver and the receiver so appointed be directed to do the following:

i. Make an inventory of the books and accounts of the businesses of the Agarwala family as morefully stated in paragraphs 6 hereinabove including inventory of the bank accounts of the said businesses as morefully stated in paragraph 6 hereinabove.

ii. Make an inventory of the bank accounts of the Agarwala family members as morefully stated in the Schedule annexed hereto and marked with the letter “C” of this application.

iii. Make an inventory of the bank lockers of the Agarwala family members as morefully stated in the Schedule annexed hereto and marked with the letter “D” of this application.

iv. Make an inventory of the demat accounts of the Agarwala family members as morefully stated in the Schedule annexed hereto and marked with the letter “E” of this application.

v. Submit a report thereof to this Hon’ble Court.

b) An order of injunction restraining the respondents and each of them from operating any bank account described in the schedule being annexure “C” hereto without notice to the petitioner.

c) An order of injunction restraining the respondents and each of them from operating any bank locker described in the schedule being annexure “D” hereto without notice to the petitioner;

d) An order of injunction restraining the respondents and each of them from alienating or disposing or encumbering or parting with possession of any valuables from the bank lockers morefully described in the Schedule being Annexure “D” to this application.

e) An order of injunction restraining the respondents and each of them from operating any demat account/bonds described in the schedule being annexure “E” hereto without notice to the petitioner;

f) An order of injunction restraining the respondents and each of them from changing the constitution of the business of the Agarwala family morefully described in paragraph 6 hereinabove;

g) An order of injunction restraining the respondents and each of them from operating any bank account of the businesses of the Agarwala family described in paragraph 9 hereinabove without notice to the petitioner;

h) An order be passed directing the respondents and each of them to render monthly accounts in relation to the business of the Agarwala family morefully described in paragraph 6 hereinabove;

i) Ad interim orders in terms of the prayers above;

j) Such further and/or other order or orders as this Hon’ble Court may deem fit and proper.”

G.A. No. 5 of 2017 (Old G.A. No. 203 of 2017):

“a) A Receiver and/or Receivers be appointed over and in respect of the firms stated in paragraph 10 above with directions to run the firms with the assistance of the parties or their representatives till the disposal of the above suit;

b) Preliminary decree for partition of the properties stated in paragraph 22 above by metes and bounds;

c) Commissioner of Partition be appointed to carry out partition of the properties stated in paragraph 22 above by metes and bounds;

d) Mandatory injunction directing return of the ornaments stated in paragraph 31 above to the petitioner;

e) Preliminary decree for partition of the balance ornaments stated in paragraph 26 above and the ones inventorised in locker no. 303 with Allahabad Bank, South Calcutta Branch;

f) A Government approved valuer or such other person as the Hon’ble Court may deem suitable be appointed for the purpose of valuation and equal distribution of the ornaments stated in paragraph 26 above and locker no. 303 with Allahabad Bank, South Calcutta Branch;

g) Mandatory injunction directing the respondent nos.2, 5 and 7 to refund Rs.59,00,000/- to the petitioner along with interest accrued thereon at the rate of 18% from July, 2015 till payment;

h) Mandatory injunction directing the respondent nos. 2, 5 and 7 to return the Income Tax files, returns documents and all records of the petitioner;

i) Injunction restraining the respondents from creating any obstruction in the petitioner’s letting out one godown at Jangalpur admeasuring 9275 sq. ft. and realizing the proceeds therefrom;

j) Ad Interim orders in terms of prayers above;

k) Such further and/or other order or orders as Your Lordships may deem fir and proper.”

G.A. No. 12 of 2021:

“a) A fit and proper person be appointed as receiver and the receiver so appointed be directed to do the following:

i. Make an inventory of the ornaments in locker nos. 491 and 570 maintained with Central Bank of India, Tollygaunge Branch and locker no. A/2/137 maintained with Andhra Bank, Ballygaunge Branch and tally the same with the Receiver’s Report dated 3rd September, 2016 being annexure “J” hereof.

ii. Make an inventory of the ornaments in locker no. 303 maintained with Allahabad Bank (now Indian Bank), South Kolkata Branch and tally the same with the Receiver’s Report dated 02.07.2016 being annexure “K” hereof.

iii. Submit a report before this Hon’ble Court.

b) An order of injunction restraining operation of the following accounts in any manner whatsoever:

i. Demat account being account no.1201910300529186 of Vineet Agarwala HUF, the son of defendant no.2 with SMC Global Securities Limited.

ii. Demat account being account no.1201910300596397 of Vineet Agarwala, the son of defendant no. 2 with SMC Global Securities Limited.

iii. Demat account being account no. 1201910300596382 of Reena Agarwala, the daughter-in-law of defendant no.2 with SMC Global Securities Limited.

iv. Demat account being account no.1201910300529148 of Amit Agarwala HUF, the son of defendant no.2 with SMC Global Securities Limited.

v. Demat account being account no. 00030340003351 of Kavita Agarwala, the daughter-in-law of defendant no.2 with SMC Global Securities Limited.

vi. Demat account being account opened by the defendant no.2 HUF with SMC Global Securities Limited.

vii. Bank account being account no. 0911815014 with Kotak Mahindra Bank of Ganpati Agro, the sole proprietorship concern of defendant no.7.

viii. Bank account being account no. 368298450 with Kotak Mahindra Bank of the defendant no.5.

c) An order of injunction restraining the transfer or alienation or encumbering or creating third party interest in respect of the property at Shivam Enclave, 5 Prince Gulam Mohammed Shah Road Kolkata – 700095, morefully described in the schedule being Annexure “H” hereto;

d) An order be passed directing the contesting defendants to return all the ornaments of the wife of the petitioner described in the schedule being Annexure “L” hereto;

e) G.A. No. 1840 of 2016 and G.A. No. 203 of 2017 be taken up for urgent hearing subject to the convenience of this Hon’ble Court;

f) Ad interim orders in terms prayers above;

g) Such further and/or other order or orders as Your Lordships may deem fit and proper.”

In the application being G.A. No. 2 of 2016, on 13th July, 2016, this Court has passed the following interim order:

“The application is the initial one in what threatens to become a long-drawn partition suit. Advocate for the plaintiff was appointed receiver but he is embarrassed and does not wish to continue with the assignment.

The appearing defendants claim that though some of the properties are joint like the haveli in Rajasthan and the jewellery in the name of the erstwhile patriarch, but the family members have not been in joint business and pursue their individual businesses.

The appearing defendants, however, agree that the godowns and factories, the residential house in Rajasthan and the Jaipur showrooms as indicated in Annexure A to the petition are joint family properties, the property described at "J" is said to be jointly held by the plaintiff and a son of the second defendant. The Garia property is said to be the exclusive property of the plaintiff.

As far as the bank lockers are concerned, the appearing defendants claim that the bank locker at Allahabad Bank, South Calcutta Branch, appearing as serial no.25 in Annexure C to the petition, contains the family jewellery procured till the lifetime of the erstwhile patriarch. However, the appearing defendants claim that the other bank lockers standing in the names of the appearing defendants or their wives contain personal jewellery either obtained at the time of marriage or otherwise acquired individually.

The plaintiff also refers to various shares in de-materialised accounts and government bonds. Such aspect of the matter has to be considered after affidavits are received.

There will be an injunction restraining the parties and each of them, whether by themselves or by their servants or agents or assigns or otherwise howsoever from dealing with or disposing of any of the immovable properties described under "B", "E", "F", "J" and "K" of Annexure A to the petition. There will also be an order of injunction restraining the parties and their servants and agents and assigns from disposing of or alienating any of the jewellery in any of the bank lockers indicated in Annexure C to the petition. However, such injunction will not prevent the persons entitled to open the lockers to open or operate the same or use the articles contained therein.

Mr. Sarasij Das Gupta, Advocate, is appointed receiver for the purpose of preparing an inventory of the contents of all bank lockers referred to in Annexure C to the petition apart from the locker pertaining to serial no. 25, the contents whereof have already been inventorised. The receiver appointed earlier stands discharged without being required to file any accounts, subject to copies of his report being circulated to such of the parties who seek it.

The incoming receiver will be paid an initial remuneration of 3000 GM to be shared by the plaintiff and the second defendant in equal measure, subject to appropriation on this count being left open for decision at the time of final hearing.

Affidavit-in-opposition be filed within four weeks from date; reply thereto, if any, may be filed within a fortnight thereafter. The matter will appear as an adjourned motion in the monthly list of September, 2016.”

None of the daughters of Hazari Lal Agarwal (since deceased) being the defendant nos. 1, 3, 4, 6 and 8 have entered appearances in the suit and the sisters of the plaintiff are contesting any of the applications filed by the plaintiff.

The defendant nos. 2, 5 and 7, were given opportunities to file their affidavit-in-opposition, but they chose not to file their affidavit-in-opposition, instead the defendants have filed an application being G.A. No. 2410 of 2016, praying for dismissal of G.A. No. 1840 of 2016. The said application being the G.A. No. 2410 of 2016, was taken up for hearing and by an order dated 16th August, 2016, this Court directed that G.A. No. 2410 of 2016 to be treated as an affidavit-in-opposition to G.A. No. 1840 of 2016.

Mr. Chayan Gupta, Learned Advocate representing the plaintiff submits that Harazi Lal Agarwala (since deceased) had various businesses and properties throughout the country acquired out of his own funds. However, the primary business of Hazari Lal Agarwala (since deceased) was Narendra Kumar Surendra Kumar & Co. which was constituted from the corpus of the family, which deals in commodities and is the main revenue generator of the Agarwala family.

Mr. Gupta submits that submits that the Agarwala family has subsequently branched out into doing various other businesses which were set up from the funds generated from Narendra Kumar Surendra Kumar & Co., which is ostensibly shown as the sole proprietorship concern of the defendant no.2, but it is, in real, owned by all the Agarwala family members and is the principal joint family business.

Mr. Gupta submits that submits that the company, namely, Narendra Kumar Surendra Kumar & Co. was constituted as a partnership firm where the mother of the parties to the suit, Anokhi Devi Agarwala (since deceased), the defendant no.1 being the eldest daughter and the defendant no.2 being the eldest son of Hazari Lal Agarwala, were the partners.

The said firm was reconstituted on 13th July, 1984 when the defendant no.1 retired and Hazari Lal Agarwala, (HUF) was inducted as a partner of the firm. Thereafter on 12th April, 1994, the partnership business was dissolved by executing a deed of dissolution. After dissolution of the said firm, the same was again reconstituted as a proprietorship concern of the defendant no.2 and this was done merely for income tax purpose though, in effect, the firm continued to be a joint family business as it has always been since inception.

Mr. Gupta submits that the plaintiff, like the other defendants had all along participated in the family businesses. After the demise of Hazari Lal Agarwala, the parties to the suit being his sons and daughters ought to have inherited his shares in equal shares, as the mother of the parties was pre-deceased to their father.

Mr. Gupta submits that all the immovable properties, jewelleries, shares, lockers, bonds and the like standing in the names of the various Agarwala family members have been purchased out of joint family corpus generated from the family business being Narendra Kumar Surendra Kumar & Co.

Mr. Gupta submits that the plaintiff has all along participated in all the affairs of Narendra Kumar Surendra Kumar & Co. along with other defendants. He submits that in the later half of 2015 and early 2016, the plaintiff was ousted from the said firm and the plaintiff had been left with no source of livelihood and the plaintiff has also been deprived of the shares in any of the suit properties.

Mr. Gupta further submits that monies had all along been transferred to and from the account of Narendra Kumar Surendra Kumar & Co. to the accounts of various family members and/or businesses standing in the individual names.

Mr. Gupta submits that the property at Jalan Industry Complex, Jangalpur, P.S. Domjur, District– Howrah is a godown of approximately 38,000 sq. ft. owned by the plaintiff, the defendant nos. 2, 5 and 7 and the same was purchased out of the joint funds of the Agarwala Family generated from the business of Narendra Kumar Surendra Kumar & Co.

Mr. Gupta submits that submits that apart from the regular source of revenue of the plaintiff from Narendra Kumar Surendra Kumar & Co., the plaintiff used to earn rent of around Rs.1,39,125/- per month from letting out 1/4th share of the said godown measuring approximately an area of 9275 sq.ft. which the defendants, acting in collusion and connivance with each other have stopped and they are now letting out the said property to the exclusion of the plaintiff.

Mr. Gupta submits that the defendants thereafter started to obstruct Calcutta Ahmedabad Road Lines (P) Limited in carrying out its business and Calcutta Ahmedabad Road Lines (P) Limited have lodged a complaint with the local police station and wrote a letter dated 13th May, 2016, terminating the license and as a consequence thereof the plaintiff had to refund a substantial portion of the license fees to Calcutta Ahmedabad Road Lines (P) Limited. He submits that since then the plaintiff has been completely ousted from the Jalan Industrial Complex and has been unable to let out the godown and is also being deprived of the monthly license fees which would be approximately Rs. 2 lacs per month.

Mr. Gupta submits that submits that the defendants have been remitting paltry amount towards the purported share of the plaintiff’s godown seeking to contend that the monthly license fees is Rs. 9000/. Such contentions of the defendant are fallacious and frivolous in view of the fact that in April, 2016, only the plaintiff’s godown share alone attracted license fees of Rs. 1,39,750/- per month.

The plaintiff submits that the defendants by taking the advantage of the pendency of the suit, have opened several new bank accounts, new demat accounts and purchased several properties.

Mr. Gupta relied upon the judgment in the case of Madanlal (Dead) By Lrs. & Ors. Vs. Yoga Bai (Dead) By Lrs. reported in (2003) 5 SCC 89 and submitted that there has to be a settlement to show division of joint family. Mere pleading that a settlement had taken place cannot be a ground to resist the claim for partition of family properties.

Mr. Gupta relied upon the judgment in the case of Mussumat Cheetha and after her death her Daughter Mussumat Jussoondh Vs. Baboo Miheen Lall and after his Death his Son Ajodhia Pershad reported in 1867 (11) MIA 227, there is a presumption of a joint and undivided Hindu Family unless it is shown to have been divided and the ancestral properties remain joint unless shown that by partition or otherwise those have become separated.

Mr. Aditya Garodia, Learned Advocate appearing for the defendant nos. 2 and 7, submits that in the year 1977, Narendra Kumar and Surendra Kumar & Co. was a partnership firm which stood reconstituted in the year 1984 and subsequently, the firm was dissolved by a Deed of Dissolution dated 12th April, 1994 and since then the business has been continued by the defendant no.2 as a sole proprietor. The plaintiff cannot have any right in such business as father has relinquished all his rights in the said business by executing the Deed of Dissolution dated 12th April, 1994.

Mr. Garodia submits that each of the businesses are individual businesses and in no way connected with the joint family property. He submits that just because the proprietorship businesses are siblings that by itself does not give any presumption of either joint family business or joint family property.

Mr. Garodia submits that the godowns and factories at Jalan Industrial Complex comprises of an area of 5 Bighas. The defendant nos. 5, 7 and the plaintiff are the owners of the undivided share of the land situated at the aforesaid address and the balance undivided 50% of such land at Jalan Industrial Complex is owned by one Nand Kishore Agarwala.

Mr. Garodia submits that from a tenancy agreement dated 1st February, 2007, which was executed between the owners of the Jalan Industrial Complex Land, namely, Nand Kishore Agarwala, the defendant no. 5, the plaintiff, the defendant no.7 and Vinit Agarwala with Narendra Kumar Agarwal, HUF, Santosh Agarwal, Mina Agarwal, Reba Agarwal and Ranjana Agarwal. Therefore, except an undivided share of 12.5% in the land at Jalan Industrial Complex, the plaintiff does not have any other right in the immovable property.

Mr. Garodia submits that, the plaintiff cannot, in any manner, claim any right in respect of the flat situated at Plot No. GH-07, Sector-PH-02, Greater Noida– 201308, since the said flat was acquired by Vinit Agarwal in his individual capacity.

Mr. Garodia submits that the vacant land situated at Village– Paota, District– Jaipur, Rajasthan, Pin – 303106, Khasra No. 1918 is owned and controlled by the defendant no.5.

Mr. Garodia submits that the flat in the residential building situated at Ram Nagar, Jaipur, Rajasthan is owned and possessed by the defendant no.7.

Mr. Garodia submits that a brick built structure standing at New Aatish Market, Gopalpura Bypass, Jaipur (Rajasthan) is owned by Hazari Lal Agarwala (HUF) represented by the Karta being the defendant no. 2.

Mr. Garodia submits, that the plot in the Cooperative Society at Alwar, Rajasthan was acquired by Vaishno Developers, a partnership firm and the said firm comprises of 10 partners wherein the defendant no.2 is also a partner.

Mr. Garodia submits that the plot in Amarsar, Rajasthan is not owned by the defendant no.2.

Mr. Garodia submits that the immovable properties situated at West Memari, Burdwan, West Bengal, was acquired by the plaintiff, Vinit Agarwal along with third parties where an undivided 50% share of interest on the land belongs to the plaintiff and Vinit Agarwal and the balance 50% undivided share is owned by the third parties.

Mr. Garodia submits that the residential flat at 74, Bibek Park, Ground Floor, Kolkata – 700 081, is presently owned by the plaintiff.

Mr. Garodia submits that the plot of land purchased for construction at Batanagar, 24, South Parganas/ Kolkata is presently owned by Amit Agarwal, the son of the defendant no. 2.

Mr. Garodia further submits that the money which has been transferred from the plaintiff to Narendra Kumar Surendra Kumar & Co. is in the nature of a loan and the money which has been transferred by Narendra Kumar Surendra Kumar & Co. is for repayment of loan and interest. It was the understanding in the family that whatever there would be surplus funds with the plaintiff, he would deposit the same with the defendant no. 2 in Narendra Kumar Surendra Kumar & Co., if and when possible, since this would ensure that the plaintiff will not be able to waste money and the consequent benefit would be that the plaintiff would earn interest.

Mr. Garodia relied upon the judgment in the case of State of State of U.P. Vs. Atulji Mishra and Ors. reported in (2003) 10 SCC 210 and submitted that plaintiff has to establish that the business of Narendra Kumar Surendra Kumar & Co. was a joint family business or formed from the funds generated by the other business of the Agarwal Family, a nucleus ought to have been shown for the plaintiff to demonstrate that there was a nucleus and from such nucleus, funds were distributed to other members of Agarwal family.

Mr. Garodia relied upon the judgment in the case of State Bank of India Vs. Jayshree Ceramics Pvt. Ltd. and Others reported in AIR 1987 Cal 194 and submitted that the business of Narendra Kumar and Surendra Kumar and Co. is a proprietorship concern of the defendant no.2 and is in a running condition. He submits that the receiver cannot be appointed over a running business.

Mr. Mainak Bose, Learned Senior Advocate representing the defendant no. 5, submits that it is the specific contention of the answering defendant that there neither exists any joint family nor any joint family property. Hazari Lal Agarwala, during his lifetime, did not have any joint family business and he also did not acquire any property through joint family income, neither did he carry any joint family businesses, therefore, the question of utilization of incomes from such businesses and acquiring properties does not arise.

Mr. Bose submits that the suit is not maintainable inasmuch as the plaintiff has no cause of action to file a partition suit based on joint family existence and the prayers sought for in the interlocutory application in respect of the alleged joint family properties, is thoroughly misconceived, and a gross abuse of the process of law and nothing.

Mr. Bose submits that the previous interlocutory application filed by the plaintiff, being G.A. No. 1840 of 2016 is still pending before this Court, and from a meaningful reading of the averments made in the interlocutory application being G.A. No. 203 of 2017, it would be evident that there has been no subsequent development during the pendency of the previous interlocutory application which could give rise to any fresh cause of action.

Mr. Bose submits that for formation of a Hindu undivided family or a coparcenary, there has to be four generations and if not, in Hindu Law, there cannot be any joint family or coparcenary.

Mr. Bose submits that successive applications on the self-same cause of action are not maintainable. The plaintiff having not succeeded in G.A. No. 1840 of 2016 is not entitled to maintain G.A. No. 203 of 2017 and G.A. No. 12 of 2021.

Mr. Bose further submits that there cannot be any Receiver appointed over a running business. In support of his case, Mr. Bose relied upon the judgment in the case of State Bank of India (Supra).

Mr. Bose submits that in a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them not purchased out of the joint family nucleus and it was purchased independent of them. In support of his submission, Mr. Bose relied upon the judgment in the case of Appasaheb Peerappa Chamdgade Vs. Devendra Peerappa Chamdgade and Another reported in (2007) 1 SCC 521.

On 13th July, 1984, agreement for reconstitution of partnership was entered between Narendra Kumar Agarwal, the defendant no. 2 herein, Smt. Anokhi Devi Agarwal, wife of Hazari Lal Agarwal and Shri Hazarilal Agarwal being the Karta of an undevided Hindu Family (HUF) with respect to “Narendra Kumar Surendra Kumar and Co. at 50 Strand Road, 2nd Floor Calcutta– 700007”. Before reconstitution of Partnership, Smt. Indira Gupta, the defendant no.1 was one partner of the said business along with Narendra Kumar Agarwal and Anokhi Devi Agarwal. After her retirement, Shri Hazari Lal Agarwal (deceased) become one of the partners in place of Smti Indira Gupta. Ratio of profits and losses of the said business was 40%, 30% and 30% respectively between Narendra Kumar Agarwal, Anokhi Devi Agarwal and Hazari Lal Agarwal.

On 12th April, 1994, a Deed of Dissolution was entered between the partners wherein Anokhi Devi Agarwala and Hazari Lal Agarwala have retired from the said business with effect from 1st April, 1994 and the Narendra Kumar Agarwal continued the said business as proprietorship business.

The plaintiff has relied upon several correspondences made by Narendra Kumar Surendra Kumar & Co. with several firms including Indian Oil Corporation, the said correspondences were either made by the defendant no.2 or the plaintiff or other defendants with regard to expansion of the business of Narendra Kumar Surendra Kumar & Co. In the letter dated 24th December, 2002, addressed to the Indian Oil Corporation by the defendant no.2 has stated that:

“2.1. (a) We will provide a Godown space of 1000 sq. ft. in Jalan Industrial Complex Jangalpur Howrah Dist. And also we can provide much more space if required. (Annexure A).

(b) We will provide delivery vehicles No. (1) WB03A 9226 (2) WB11A 0344 and enclosed photocopy of certificate of Registration (Annexure B).

(c) We will provide three Sales persons namely:-

(1) Surendra Agarwal.

(2) Ashok Mishra

(3) Gouranga Das.”

Along with said letter details of the personal on rolls of Narendra Kumar Surendra Kumar & Co. was enclosed wherein the name of the defendant no. 2 is mentioned as Proprietor and the name of the plaintiff is mentioned as Marketing Executive. In the correspondences, it is also mentioned that the “At present our group turnover is Rs. 30-35 Crores”.

The plaintiff has relied upon statement of accounts of the Narendra Kumar Surendra Kumar & Co. wherein it reveals that amounts have been transferred in account of the plaintiff and the same is corroborated from the statement of accounts of the plaintiff. It also reveals that amounts have been transferred to the accounts of Reva Agarwal, Pavers India which is the proprietor concern of the defendant no.5, Millennium which is proprietorship concern of Vineet Agarwal, son of the defendant no.2 and Ganpati Agro, which is the proprietorship concern of the defendant no.5.

In connection with transfer of amounts the contention of the defendant nos. 2 and 7 is that the amounts which have been transferred from the plaintiff to Narendra Kumar Surendra Kumar & Co is in the nature of a loan and the money which has been transferred by Narendra Kumar Surendra Kumar & Co. is for payment of loan and interest. It is further case of the defendant nos. 2 and 7 that it was the understanding in the family that whatever there would be surplus funds with the plaintiff, the plaintiff would deposit the same with the defendant no. 2 in Narendra Kumar Surendra Kumar & Co. if and when possible. It is also the case of the defendant nos. 2 and 7 that whenever the payments were made on account of repayment of loan which is evident from the TDS submitted by the defendants.

The contention of the defendant no. 5 is that he was the owner of an electrical appliances shop at Ezra Street but due some unavoidable reasons, the business was closed and he started working as Manager in the proprietorship firm of his brother, the defendant no. 2 till 2005 on a monthly salary. Thereafter he has started business under the name and style of Pavers India but the same was also closed in the year 2010.

This Court finds that the plaintiff has relied upon statement of accounts of Narendra Kumar Surendra Kumar & Co. as well as the statement of accounts of the plaintiff wherein it shows that the plaintiff has transferred several amounts in the account of the company. The defendant nos. 2 and 7 have taken specific stand that as per the understanding in the family, whatever could be surplus funds with the plaintiff would deposit the same with the defendant no. 2 so that the plaintiff would not be able to waste money and consequently, the plaintiff will get interest in the said amount.

Taking into consideration of the claim and counter-claim of both the parties, the defendant no. 2 has admitted with regard to transfer of money from the account of the plaintiff to the account of the defendant no. 2 but in the summary proceeding, it would be very difficult for this Court to ascertain whether the said company is a family company or is only the proprietorship company of the defendant no. 2 exclusively. In view of the above, this Court is of the view that whether the defendant no. 1 company is a family company or not is to be decided during the trial but for the purpose of benefit of all the parties, it would be proper to direct the defendant nos. 2 and 7 to file their statement of accounts every quarterly after serving copies to the plaintiff and also to file income tax return before this Court with respect to the business of Narendra Kumar Surendra Kumar & Co. from the year 2016 till date and the defendant nos. 2 and 7 shall continue to disclose their statement of accounts and income tax return till the disposal of the suit.

As regard to the prayer made by the plaintiff for a direction upon the defendants for return of income tax files and other documents of the plaintiff, this Court finds that the defendants have categorically denied with regard to the income tax files and other documents of the plaintiff with the defendants and the plaintiff has not brought any evidence on record except the statements made in the present application, thus this Court finds that it is not proper for this Court at this stage, without any evidence to direct the defendants to return income tax files and other documents to the plaintiff.

The plaintiff in prayer (b) of GA No. 203 of 2017, has prayed for preliminary decree for partition of the properties as mentioned in Annexure “A” of the suit scheduled property. The plaintiff has relied upon the order passed by this Court in GA No. 1840 of 2016 in CS 128 of 2016 dated 13th July, 2016 as described in paragraph 5 (supra).

In paragraph 12 of G.A. No. 1840 of 2016, the plaintiff has described about the property at Jalan Industrial Complex i.e. Schedule “A” (B) property and the contention of the plaintiff has totally denied by the defendant nos. 2 and 7 in the affidavit-in-opposition. In the order dated 13th July, 2016, passed in G.A. No. 1840 of 2016, it is recorded that the defendants agreed that the godowns and factories, the residential houses in Rajasthan and Jaipur show rooms as indicated in Annexure “A” to the petition are joint family properties. The property described at Schedule “A” J is said to be jointly held by the plaintiff and the son of the second defendant and the Garia property is said to be the exclusive property of the plaintiff. In the written notes of argument, the defendant nos. 2 and 7 have stated that the godowns and factories at Jalan Industrial Complex comprises of an area of 5 bighas, the defendant nos. 5, 7 and the plaintiff are the owners of the undivided land situated at the Junglepur Village, Sankaridaha, P.S. Domjur, PO– Begri, Howrah District. With respect to the property mentioned in Schedule “A” (E), residence at Jaipur in the written notes of argument, it is mentioned the said property owned and possessed by the defendant no.7. As regard to the Schedule “A” (F) Jaipur showroom, it is admitted by the defendant nos. 2 and 7 that the same is owned by Hazari Lal Agarwala (HUF) represented by Karta, the defendant no. 2. As regard to the schedule property “A” (J), Burdwan (West Bengal) was acquired by the plaintiff, Vinit Agarwal along with third parties. Undivided 50% share of interest on land belongs to the plaintiff and Vinit Agarwal and 50% undivided share owned by third parties. As regard to Garia Property i.e. Schedule “A” (K) is owned by plaintiff.

Considering the above admitted facts by the defendant nos. 2 and 7, the plaintiff is entitled to get a preliminary decree of (i) 12.5% of share with respect to Godowns and Factories in Schedule “A” (B) i.e. in the Jalan Industrial Complex, Junglepur, Village Sankaridaha, District Howrah. (ii) 1/9th share in the Schedule “A” (F) i.e. Jaipur Showroom, (iii) ½ share in the 50% of the immovable property Schedule “A” (J) situated at West Memari, Burdwan, West Bengal and (iv) 1/9th share in the residential plot measuring 600 sq. fts., situated at 74, Bibek Park, Ground Floor, Kolkata-700081 i.e. Schedule “A” (K).

As regard to the appointment of receiver for making inventory of the ornaments in locker nos. 491 and 570 with the Central Bank of India, Tollygunge Branch and locker no. 303 maintained with the Allahabad Bank (now Indian Bank), South Kolkata Branch by tallying the report submitted by the receiver earlier dated 2nd July, 2016 and 3rd September, 2016, this Court is of the view that already receiver’s report is on record and this Court by an order dared 13th July, 2016, allowed to open locker and to operate the same or to use the article contained in the locker. The plaintiff has not brought any evidence that the defendants have misappropriated the said ornaments. In view of the above, this Court did not find any reasons to appoint receiver as prayed for by the plaintiff.

As regard to the injunction with regard to Demat accounts, the defendant nos. 2 and 7 are directed to submit statement of account of each and every Demat accounts every six months from this date till the disposal of the suit.

In view of the above, G.A No. 2 of 2016 (Old No. GA 1840 of 2016), G.A. No 5 of 2017 (Old No. GA 203 of 2017) and G.A. No. 12 of 2021 are accordingly disposed of.