Notice of Motion No. 166 of 2013 in Suit No. 75 of 2013. Case: Gopal Bhagwandas Ahuja Vs Jagdish Bhagwandas Ahuja and Ors.. High Court of Bombay (India)
| Case Number | Notice of Motion No. 166 of 2013 in Suit No. 75 of 2013 |
| Counsel | For Appellant: Mr. Shailesh Shah, Sr. Advocate, A/w. Mr. S.U. Kamdar, Sr. Advocate, Ms. Mamta Sudh, Adv., Mr. S.K. Srivastava, Ms. Manorama Mohanty and Mr. Gunjan Shah I/b. S.K. Srivastav & Co. and For Respondents: Mr. Aspi Chinoy, Sr. Adv. and Mr. D.D. Madon, Sr. Adv., Mr. Zal andhyarujina, Adv., Mr. R.V. Gandhi, Mr. B.S. Damodar, Mr. Mahek ... |
| Judges | R.D. Dhanuka, J. |
| Issue | Madhya Pradesh Accommodation Control Act 1961 - Sections 12, 12(1)(c), 12(1)(f), 12(1)(g) |
| Judgement Date | August 27, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
R.D. Dhanuka, J.
1. Plaintiff who has filed suit for declaration that the plaintiff is entitled to 1/10th share of the assets and properties set out in the plaint, and for partition of the said properties by metes and bounds on the ground that all such properties were properties of the joint family, has prayed in this notice of motion for appointment of the Court Receiver in respect of the properties described in Exh. B and injunction in respect thereof. Some of the facts which emerge from the pleadings and documents filed by both the parties and which are relevant for the purpose of deciding this notice of motion are as under:
CASE OF THE PLAINTIFF:
(a) Plaintiff and defendant nos. 1 to 8 are children of one Mr. Bhagwandas Ahuja who expired on 14th April, 1996 (hereinafter referred to as the "said deceased"). Defendant Nos. 1 to 4 are the brothers of the plaintiff. Defendant nos. 5 to 8 are sisters of the plaintiff. Defendant no. 9 to 11 are the children of the deceased sister of the plaintiff and defendant nos. 1 to 4 and defendant nos. 12, 13 and 14 are the son, daughter in law and daughter of defendant no. 1 respectively. Defendant nos. 15 to 19 are the companies in which plaintiff and/or defendants are share holders.
(b) During the period between 1942 and 1946, the said deceased was carrying on business of spices and dry fruits at Chaman in Pakistan. During the period between 1948 and 1969, the said deceased carried on business in partnership in the name of M/s. Moolchand & Co. at Bhat Bazar, Maszid Bundar, Mumbai 400 009. In the year 1948, the said deceased took a flat at Malad. In the year 1950, defendant no. 1 was born. In the year 1958, plaintiff was born. In the year 1969, M/s. Moolchand & Co. stopped its business as its partners were likely to face insolvency. The said deceased was one of the partners in the said firm M/s. Moolchand & Co. On 5th December, 1969, the said deceased started the firm "M/s. Kanayalal Rameshkumar" with defendant no. 1 who was his eldest son and had just attained majority, as partner. It is the case of the plaintiff that since the said deceased was likely to face insolvency proceedings he did not become partner of the said firm, however, was in control thereof throughout. On 20th February, 1970, the said firm M/s. Kanayalal Rameshkumar was reconstituted with effect from December, 1969 when other children of the said deceased who were then minor, were admitted to the benefits of the firm. The other partners in the said firm were Mr. Kanayalal and Ramchandra Lokram. The said firm started business of grocery at 257, Narsee Natha Street, 201, New Anant Bhavan, Mumbai 400 009. On 9th October, 1973 the said deceased was adjudicated insolvent. In the year 1976, from the earning of kirana commission business carried on by the said firm M/s. Kanayalal Rameshkumar partly and partly from the moneys advanced by Mr. Kanayalal to the said firm, flat at Jolly Maker Apartment at Cuffe Parade, Mumbai was purchased in the name of four brothers who had attained the age of majority. It is the case of the plaintiff that the said firm had directly made payment for consideration for purchase of the said flat. On 13th April, 1982, the said flat at Jolly Maker Apartment was sold for Rs. 12,50,000/-.
(c) In June, 1982, another firm was constituted for carrying out kirana business in the name of M/s. Rameshkumar Gopaldas at the same address where M/s. Kanayalal Rameshkumar was carrying on the business. Defendant Nos. 1, 3 and 4 and plaintiff became partners of the said firm. It is the case of the plaintiff that the funds of the said partnership firm came from the surplus sale proceeds of the flat in Jolly Maker Apartment from the amount left after purchase of the said flats at Versova. In the year 1985, plaintiff and defendant nos. 1 to 8 started construction business in the name of United Development Agency at Vardhaman Market, Sector 17, Vashi. Kirana Merchants Association allotted plot at Navi Mumbai to the said firm M/s. United Development Agency in view of M/s. Kanayalal Rameshkumar and M/s. Rameshkumar Gopaldas being its members. The said firm started its first project for construction on the said plot allotted to the said firm and also stared other business of Marble processing, spice business etc. In the year 1985, flat No. 601-B at Versova Woodland Coop. Hsg. andheri was purchased in the name of plaintiff out of the funds of Kirana commission Agency run by M/s. Rameshkumar Gopaldas. On 21st November, 1985, M/s. Rameshkumar was reconstituted. Defendant nos. 3 and 4 voluntarily retired from the said firm. In the year 1989, partnership firm M/s. Cams Developers was constituted which was carrying on business from 5th Floor, Persee Polis, Vashi, Mumbai and was carrying out constructions activities in which defendant no. 1 was one of the partner. The said firm M/s. Cams Developers had borrowed sum of Rupees two Crores from the State Bank of India. Consequent on the said loan taken by the said firm in which plaintiff was not partner, plaintiff mortgaged his flat no. 601B, at Versova with the said bank. In the year 1991, M/s. Ahuja Construction firm was established with the plaintiff and defendant no. 1 as equal partners at the same place where M/s. Rameshkumar Gopaldas was carrying on business.
(d) On 4th January, 1992, M/s. Ahuja Construction purchased office No 102 and car parking space on first floor, in Perse polis building situated at Vashi. M/s. Ahuja Construction then carried on business from the said address. On 25th June, 1993 M/s. Ahuja Developers and Ahuja Builders were constituted for running construction activities of the joint family with the plaintiff and wife of defendant no. 1 as partners. In the year 1994, M/s. Top Aim Properties Pvt. Ltd. was constituted. Plaintiff had 50% shares in the said company. The remaining 50% shares were held by defendant no. 1. Defendant no. 4 also became share holder later on. In the year 1995, office No. 102 and car parking space of M/s. Ahuja Constructions was sold. Out of the sale proceeds of the said office and car parking, office premises at A-1, Rajpipla, Santacruz, Mumbai 52 was purchased from which premises the construction business and kirana merchant agency business was also conducted. The said office premises was purchased in the name of Jaigopal Hire Purchase Pvt Ltd. also known as Jaigopal Consulting Services Pvt. Ltd. On 14th April, 1996, the said deceased expired.
(e) In the year 1997, M/s. Ahuja Developers was reconstituted by including M/s. Keepsade Properties Pvt. Ltd. as partner. In the year 1997, defendant no. 1 disclosed 32 Crores in the name of five firms/companies under the voluntary disclosure scheme. Defendant No. 1 created Jagdish Bhagwandas Ahuja (HUF) overnight without knowledge of the plaintiff. The said amount of Rs. 32 Crores was utilized to fund the Slum Rehabilitation Project called Ahuja Towers (Prabhadevi) and also for implementation of construction of building known as "Ahuja L'Amor" Tower at Lokhandwala Extension.
(f) On 12th December, 1999 various family concerns executed MOU whereby defendant no. 15 company was empowered to act as common pool company for various companies. In the year 2001, M/s. Ahuja Construction was converted into "Ahuja Housing & Development Pvt. Ltd." Plaintiff had 40% shareholding of the said company. In the year 2002, plaintiff mortgaged his flat situated at 12th Floor Peri Cross Road, Bandra and A-3, Rajpipla CHS Linking Road, Santacruz West in favour of Cosmos Bank for creating working capital and settling slum dwellers in a joint family project being Ahuja Towers at FP No. 1087 and 1088 situated at Raja Bhave Desai Marg, Prabhadevi. On 3rd December, 2002, Defendant No. 17 i.e. Shree Ahuja Properties Pvt. Ltd. addressed a letter to the slum dwellers at Prabhadevi making an offer to develop the property which was occupied by the slum dwellers. In the year 2003, defendant no. 1 firm formed 3 partnerships i.e. (1) Ahuja Properties, (ii) Ahuja Resources Management (iii) Ahuja Properties & Associates. In the year 2003, Defendant no. 1 got a letter of appointment from Prabhadevi Property issued in the name of M/s. Shree Ahuja Properties, the firm of which defendant no. 1 and defendant no. 12 (son of defendant no. 1) are partners, without plaintiff's knowledge and consent. Plaintiff was given an impression by defendant no. 1 that the project was being done by Shree Ahuja Properties Pvt. Ltd. i.e. Defendant no. 17 wherein plaintiff was a 40.01% shareholder at the time of inception.
(g) During the year 2003-2004 M/s. Top Aim incurred expenses to the tune of Rs. 39.95 lacs for the initial expenses on the project Ahuja Towers, Prabhadevi. Plaintiff was one of the share holder and director of the said Top Aim Properties Pvt. Ltd. The said firm took further facilities from Cosmos Bank through its partner Keepsade Properties Pvt. Ltd. For the said loan, plaintiff and his wife mortgaged their property in security for the loan of Rs. 16.50 Crores. On 21st December, 2004, M/s. Ahuja Housing and Development Pvt. Ltd. issued certificate informing about the merger of Ahuja Constructions with Defendant no. 19 from 2002-03 onwards. On 22nd March, 2007, Plaintiff transferred sum of Rs. 43,21,752/- to M/s. Ahuja Properties by cheque. By letter dated 13th December, 2007, Cosmos Bank addressed a letter to the plaintiff in respect of the flat No. 121 and 122 in Soona Villa, Peri Cross Road, Bandra which was held by the plaintiff and was held as collateral security for the facilities availed of by Ahuja Properties Pvt. Ltd. On 18th December, 2007, M/s. Cosmos Bank addressed a letter to M/s. Ahuja properties with respect to the over dues in their account. On 28th January, 2008, plaintiff addressed a letter through his advocate to M/s. Ahuja Properties Pvt. Ltd. calling upon the said bank to forthwith issue share certificates in respect of the shares held by the plaintiff and...
To continue reading
Request your trial