Letters Patent Appeal Nos. 125, 126 and 142 of 1983. Case: H.S. Trivedi, Vithal Bhikaji Mayekar and Ors. and Shankar Bhikaji Mayekar Vs Namdev Vishnu Kanalekar and Ors.. Bombay High Court

Case Number:Letters Patent Appeal Nos. 125, 126 and 142 of 1983
Party Name:H.S. Trivedi, Vithal Bhikaji Mayekar and Ors. and Shankar Bhikaji Mayekar Vs Namdev Vishnu Kanalekar and Ors.
Counsel:For Appellant: H. Suresh, Adv. ,i/b. Dhruve Liladhar and Co. in LPA 125 of 1983, U.J. Makhija, Adv.in L.P.A. No. 126 of 1983 and M.L. Palan and P.J. Merchant, Advs. i/b., Pravin Merchant and Co. in L.P.A. 142 of 1983 and For Respondents: M.A. Rane and P.L. Naik, Advs. for respondent in L.P.A. Nos. 125, 126 and 142 of 1983, U.J. Makhija, Adv....
Judges:C.S. Dharmadhikari and V.V. Vaze, JJ.
Issue:Contract Act, 1872 - Sections 12, 16(2)
Citation:1985 (2) BomCR 303
Judgement Date:December 07, 1984
Court:Bombay High Court
 
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Judgment:

V.V. Vaze, J.

  1. Factory premises at 164, Tulsi Pipe Road, Matunga, Bombay-400 016, and two shops being Nos. 16 and 5-A on the ground floor of Hari Niwas abutting Lady Jamshedji Road, Mahim, Bombay, have been the subject matter of the present long drawn litigation. The premises at Tulsi Pipe Road, 18' x 36' formerly belonged to one Devidas and having been designed as a shed are used mainly as a factory rather than as a shop. This shed changed hands and when D. Rustom Ltd. were in possession of the same, Namdev Vishnu Kinalekar (Namdev) the plaintiff, took the premises sometime in 1951-52 on a monthly rent of Rs. 150/-. Namdev who had a mechanic's background had a large family of five sons and two daughters. He bought some shearing, metal cutting, drilling, binding machines, some hand presses, a spray printing machine, an electric over and set up a factory for the purposes manufacturing electrical equipments. The factory was well equipped with other accessories like vices, jacks, blowers, embossing dies, test board etc. It was supplied with domestic and power connections, and in course of time was registered as a small scale industry. Namdev had also purchased a power punching machine "Hunt Worth", through the scheme of the S.S.I. Corporation for which he had to pay monthly installments.

  2. Namdev had a complement of 7-8 employees in the factory but for display and sale of the finished goods he had taken on rent the nearby shop Nos. 16 and 5-A of Hari Niwas. In Shop No. 16 he set up a business of display and sale while the other shop No. 5-A was used for winding up of coils.

  3. The plaintiff used to support his large family by running the factory and selling the manufactured goods through his shop. It is small wonder that Namdeo was shocked to find that he has lost not only the going concern at Tulsi Pipe Road but also his shops at Hari Niwas reducing him to a state of joblessness and irrelevancy. Two documents, he was told, have denuded him of his properties. The first bore the date 3-1-1963, Exhibit 'M' whereunder both the shops where Namdeo was carrying on business in fluorescent chokes, transformers, lightening arrest and other electrical goods in the double room No. 16 on the ground floor at Hari Niwas, were assigned to one Vishwanath Gopal Gole (Gole), residing in Ahmed Sailor Building, Govind Keni Road, Dadar. The Deed purported to recite that Namdeo the proprietor of Simplex Radio Company has agreed for the absolute sale to Gole of the business of Super Simplex Radio Company with its good-will, stock-in-trade, furniture, fixtures and fittings, articles and other things as a going concern at and for a price of Rs. 22,000/-. The deed further recites that the tenancy rights to occupy the said premises have also been transferred. As regards the consideration, it is stated that Namdeo has already received Rs. 10,000/- being the price of stock-in-trade, furniture etc. and another sum of Rs. 12,000/- has been paid to Namdeo on the date of the execution of the document. For this consideration of Rs. 22,000/- Namdeo assigned the entire estate in M/s. Super Simplex Radio Co. to Gole. The document was registered on 22nd February, 1963 before the Sub-Registrar of Bombay.

  4. The second document Exhibit 'K', came to be executed by the plaintiff Namdeo on 6-2-1963 allegedly for a consideration of Rs. 15,000/- in favour of Baburao Shantaram More (More). It was in respect of shop No. 164 Tulsi Pipe Road factory. The document recites that by an earlier agreement dated 11th December, 1962 M/s. Makhija Private Ltd. were permitted by Namdeo to carry on their work on a part of the premises on the basis of leave and licence and also use the machinery lying in the premises for their purposes for a monthly compensation of Rs. 500/-. It is stated that due to ill-health Namdeo was unable to continue the business of manufacturing electrical material which he was doing under the name and style of Super Simplex Radio Co. and hence desired to dispose of the same and had asked More to take the assignment of the business together with the good-will as a going concern and with the tenancy rights. Namdeo also agreed that the machineries fixtures etc. lying in the premises and described in the schedule to the document should also the assigned along with the premises. The good-will of the business was assessed at Rs. 6,000/- while the remainder of the property at Rs. 9,000/-. The document recites that Namdeo had received the sum of Rs. 9,000/- out of the consideration on 31st January 1963 while the remainder of Rs. 6,000/- were paid to him on 6th February, 1963 i.e. the date of execution. The document was registered before the Sub-Registrar of Bombay on 7th February, 1963.

  5. Namdeo filed pauper petition bearing No. 89 of 1966 which was later on converted as suit No. 7697 of 1966 in the Bombay City Civil Court for a declaration that the document dated 6-2-1963 Exh. 'K' be declared as null, void and inoperative, bad in law and not binding on him and for consequential reliefs like injunctions, appointment of a Receiver, mesne profits etc. Namdeo alleged that he was trading under the name and style of Super Simplex Radio Company at his factory at 164, Tulsi Pipe Road, Mahim and was a Income Tax as well as sales-tax payer. In December 1962 he fell sick which affected his mind and he was not capable of understanding what he was doing. Taking advantage of his mental condition respondents, Vithal B. Mayekar (Vithal) who is his brother-in-law in collusion with other family members viz. Namdeo's wife, sons and daughter took possession of the factory. Namdeo further alleged that with a view to removing him from the scene Vithal prepared a bogus document in the name of More purporting to effect the sale of factory for Rs. 15,000/- in favour of More. According to Namdeo neither Vithal nor More paid any consideration for the alleged assignment and that at the time when he executed the said document he was not capable of understanding what he was doing as he was completely at the mercy of Vithal and other family members. Vithal and his two brothers Shankar B. Mayekar (Shankar) and Dattaram B. Mayekar (Dattaram) conspired to deprive him of his property consisting of two shops at Hari Nivas, Lady Jamshedji Road, Mahim and the factory at 164, Tulsi Pipe Road, Dadar, Bombay. These persons who were the brother of Namdeo's wife Sulochana conspired with her and started nagging Namdeo in all possible manner with the result that Namdeo lost his peace of mind and attention in the business. Sulochana and her two brothers practised black magic upon him with the result that Namdeo lost his power of thinking and self control. Taking advantage of the mental imbalance induced by the black magic this group removed Namdeo out of his house and kept him in confinement at various places. Namdeo remembered certain rituals which were performed in his presence but was not in a position to recollect the details. He was taken out of the house on certain occasions, made to put his signature on certain papers without making him understand the contents thereof. Namdeo alleged that he was fraudulently induced and coerced to act as per the wishes of these persons and in view of the imbalanced stated of mind Namdeo was not knowing as to what he was doing. His only recollection was that on certain occasions he was taken out of his hideout and made to put his signature on certain papers and contents whereof were not known to him. The averments of the plaint further describe that the state of mind of Namdeo persisted for about six months till September 1963. When Namdeo regained his power of thinking and when he realised that he was at the place of brother-in-law in the railway quarters at Matunga, he proceeded to his usual place of business at Hari Niwas at Lady Jamshedji Road and to his utter surprise and dismay discovered that Vithal and Shankar were in-charge of the shop. Those persons who were present at the premises told Namdeo that one Vishwanath Gole had become the owner of the premises.

  6. The plaintiff then near dates that he proceeded to his factory at 164, Tulsi Pipe Road, where similar surprise was in store for him. One Babu More had taken possession of the factory and told Namdeo that he had become owner of the same under documents of title. Namdeo then realised that Vithal in collusion with others had managed to fabricate false documents in order to deprive him of his business premises at Hari Niwas as well as factory at 164, Tulsi Pipe Road, taking advantage of his unbalanced state of mind. Namdeo after realising that fraud has been committed by Vithal and others lodged a complaint at the Mahim Police Station which in due course was referred to C.I.D. for inquiry and report. As no process was issued as a result of the inquiry the plaintiff explains the filling of the suit for the declaration that the document Exh. 'K' dated 6-2-1963, has been obtained from him by Vithal and others by committing fraud coercion and undue influence.

  7. Giving further details Namdeo alleged that no person in proper frame of mind could have sold a valuable factory for a paltry sum of Rs. 15,000/-.

  8. An ex parte decree was passed in the suit on 5-7-1967. The defendants took out a Notice of Motion No. 3867 of 1967 on 11-9-1967 for setting aside the ex parte decree and for restoration of the suit. The notice was made absolute on 18-9-1967 and the defendants through their Advocate gave undertaking to the Court that they will not alienate, dispose of or part with the possession of the premises. B.S. More expired and his legal heirs were brought on record. The plaintiff further learnt that defendant No. 3-H.S. Trivedi (Trivedi) was in occupation of the factory and that defendant No. 4 Shankar Bhikaji Mayekar (Shankar) purported to induct him therein. The plaintiff further learnt that defendant No. 5 Kaushik A. Merchant (Merchant), the landlord of the premises purported to...

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