Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10426-10427 OF 2013
(Arising out of SLP (C) Nos. 22473-22474 of 2013)
Leela Shashikant Purandare ....Appellant
versus
Arvind Vishnu Govande (dead) through L.Rs. ....Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. These appeals are directed against judgment dated 30.4.2013 of the
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learned Single Judge of the Bombay High Court whereby he dismissed the second
appeal and the civil application filed by the appellant and upheld judgment and
decree dated 31.12.2012 passed by District Judge, Pune (for short, ‘the lower
appellate Court’) in Civil Appeal No.325/2012 confirming judgment and decree
dated 18.2.2012 passed by Civil Judge (Junior Division), Pimpri (for short, ‘the trial
Court’) in Regular Civil Suit No.614/2000 filed by respondent - Arvind Vishnu
Govande, who is now represented by his legal representatives, for declaration and
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possession of the suit property.
3. After obtaining the degree of M.Tech. from Indian Institute of
Technology, Kharagpur, the respondent started working as Engineering Consultant.
In 1979, he purchased Plot No.W-97, Bhosari Industrial Area, Pimpri (the suit
property) on lease basis from Maharashtra Industrial Development Corporation
(MIDC) by registered deed dated 24.10.1979. After taking possession of the suit
property, the respondent obtained water supply and electric connection in his name.
In 1988, the appellant and her relative (brother, viz., Subhash Anant Kogekar) are
said to have approached the respondent for permission to use the suit property for
lunch and dining purposes of their employees. The respondent agreed to their
request. After few months, the appellant started using the shed constructed over the
plot for manufacturing activities and also made structural changes/modifications
without his knowledge and consent. On coming to know of this, the respondent
sent letter dated 6.6.1990 to the appellant by Registered A.D. and called upon her
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to immediately stop the manufacturing activities and desist from making any
structural changes. He also asked the appellant to vacate the shed and the premises.
The appellant refused to accept the letter. She also did not respond to letters dated
6.11.1990, 7.11.1990 and 30.11.1990. The respondent then approached the
Executive Engineer, MIDC and the concerned officer of Maharashtra State
Electricity Board (MSEB) for disconnection of water and electricity supplies. The
electricity was disconnected on 15.1.1991 and the meter was removed. Thereupon,
the appellant filed Suit (RCS No.101/1991) against MSEB without impleading the
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respondent as party and sought injunction against disconnection of the supply of
electricity. On an application made by the respondent, the trial Court ordered his
impleadment as defendant in RCS No.101/1991. That suit was finally dismissed by
the trial Court vide order dated 8.2.1993.
4. Since the appellant did not vacate the suit property, the respondent
filed Special Civil Suit No.1634/1993 (re-numbered as Regular Civil Suit
No.614/2000) for possession and award of compensation at the rate of Rs.500 per
day with interest. He pleaded that the appellant was neither his partner in the
business nor a licensee of the suit premises and she was unauthorisedly occupying
the same; that he had given the suit property to the appellant and her relative for
lunch and dining purposes of their employees but she started using the same for
manufacturing activities and also made structural changes without his knowledge
and consent and without permission and that she did not vacate the suit premises
despite repeated requests.
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5. In the written statement filed by her, the appellant averred that the suit
property is not owned and possessed by the plaintiff-respondent alone and that she
was in possession thereof as partner of Active Engineers and this fact has been
concealed by the respondent. The appellant denied that she or her relative
approached the respondent for permission to use the suit property for lunch and
dining purposes of their employees or that she started using the same without the
former’s knowledge and consent for manufacturing activities and that she had made
structural changes. The appellant claimed that the respondent was carrying on
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business of sale and manufacturing of engineering and chemical items in the name
and style of M/s. Active Engineers in partnership with her husband Shashikant
Mahadeo Purandare and after his death on 1.11.1988, the respondent offered to
admit her as partner and to form a new partnership. She accepted the offer and a
partnership deed was executed by them on 23.11.1988; that in terms of the
partnership deed, the main office of the partnership was located in the suit property,
which was treated as the respondent’s investment in the partnership; that she had
agreed to invest Rs.1,25,000 towards capital and the profit ratio between the
partners was to be 51% and 49%; that she spent Rs.1,25,000 for construction of
factory shed and commenced business; that the respondent sent letter dated
10.12.1988 to the Shop Inspector about the change of partnership and registration
was also made under the Sales Tax Act in the name of M/s. Active Engineers, and
that at the time of allotment, there was a factory shed admeasuring about 600 sq. ft.
and she made additional construction of about 800 sq. ft. She also constructed
mezzanine floor in the factory and installed furniture and fixtures by spending
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Rs.3,00,000. The appellant also raised an objection to the maintainability of the
suit on the ground that the partnership is not registered. She finally pleaded that the
respondent cannot seek her eviction unless he settles all the disputes and gets the
partnership dissolved.
6. On the pleadings of the parties, the trial Court framed the following
issues:
“ISSUES
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1. Does plaintiff prove that the suit plot was allotted to him alone by MIDC to
run his factory?
2. Does the plaintiff further prove that on the request of defendant and her
relatives he allowed the defendant to make use of W-97 plot for lunch and dining
purposes of her employees?
3. Does plaintiff further prove that the defendant was asked to vacate the
premises and asked to give the possession?
4. Whether the plaintiff is entitled for declaration as prayed and possession of
the suit premises?
5. Does the defendant prove that she is partner along with plaintiff and suit plot
was allotted and purchased by the firm and she has share in the plot as partner?
6. Whether defendant is entitled for compensatory cost of Rs.5000/-?
7. Whether the plaintiff is entitled for compensation of Rs. 500/- per day from
the defendant from the date of filing of the suit till the disposal of the suit?
8. What relief and cost?”
7. The respondent examined himself as PW-1, Rajaram Tukaram
Bhujbal, an employee of MIDC, as PW-2, Senior Clerk Tax Assistant of Pimpri
Chinchwad Municipal Corporation as PW-3 and produced documents, which were
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marked as Exhibits P-52, 54, 55, 56, 57, 63, 64, 65, 72 and 73.
8. The appellant did not enter the witness box. Instead, her brother and
power of attorney holder Subhash Anant Kogekar filed affidavit dated 8.9.2008
(Exhibit 210). He also produced documents which were marked as Exhibits 91 to
107, 112 to 161 and 213 to 216. Sanjay Vishwanath Salunkhe, an employee of
Cosmos Bank, Khadki Branch was examined as DW-1. Shri Salunkhe produced
certified copy of Account Opening Form, which was marked as Exhibit 244. Shri
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Ravmdra Vasantrao Kakade, handwriting expert was examined as DW-3. He
produced his opinion as Exhibit 254.
9. After analyzing the oral and documentary evidence produced by the
parties, the trial Court decided all the issues in favour of the respondent and decreed
the suit. The trial Court held that the respondent has succeeded in proving the
allotment of suit property to him by MIDC and decided issue No.1 in the
affirmative. While dealing with issue Nos. 2 and 3, the trial Court referred to the
admission made by Subhash Anant Kogekar that the plaintiff-respondent had issued
letter dated 6.6.1990 for delivery of possession and held that the respondent had
allowed the relatives of the appellant to use the suit property for lunch and dining
purposes but she used the same for manufacturing activities and also made
structural changes without his consent. The trial Court rejected the appellant’s plea
that the respondent had executed partnership deed dated 23.11.1988 inducting her
as partner and she had made investment. The findings recorded by the trial Court
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on these two issues are extracted below:
“Though the defendant has specifically pleaded in WS that deed of
partnership dated 23/11/88 was executed. The defendant failed to prove
the existence of partnership firm by producing registered partnership
deed on record. The partnership deed produced on record by the
defendant are not registered documents as per Section 17 of Indian
Partnership Act. The documents of partnership is compulsorily
registerable. Section 6 of Indian Partnership provides mode of
determining existence of partnership. It is specifically provided in this
section that mere sharing of profit or payment of contingent does not
make a person partner of the firm. As per section 69 of Indian
Partnership Act no suit to inference any right arising from contract shall
be instituted by or on behalf of any person suing as partner in the firm
against the firm or any person alleged to be or to have been partner in
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the firm unless the firm is registered. In the present suit, the partnership
deed, produced on record is unregistered partnership deed. The plaintiff
has categorically denied the existence of relation of partnership
between him and the defendant in her cross-examination. In such
situation, in view of the provisions of section 69 of the Partnership Act
the defendant is not entitled to raise plea that she is in possession of the
suit property as a partner of M/s, Active Engineers i.e unregistered
firm. It is pertinent to note here that during cross examination the
defendant's power of attorney holder Mr. Subhash Kogekar has
deposed that neither himself nor the defendant have executed any
registered document in respect of the suit property. It is pertinent to
note here that the defendant herself has not stepped into the witness
box and has not lead oral evidence. In such a situation, the evidence
given by D.W. I Subhash Kogekar as power of attorney holder of the
defendant is restricted to the facts which are within his personal
knowledge. In such situation, in absence of registered partnership deed
the defendant has failed to prove that she is in possession of suit
property in capacity of partner of M/s. Active Engineers i.e. the alleged
partnership firm between the plaintiff and defendant. The defendant has
produced on record electricity bills at Exh.112 to 161, receipt of
Municipal Taxes at Exh 215, 99, 103, 104, 105, 106, 107, 216 and
notice issued by PCMC in payment of Municipal Taxes Exh.100, 101.
In all these documents i.e in Municipal Tax receipts and notice issued
by PCMC the name of M/s. Diamond Engineers and Fabrications is
shown as possessor of the suit property. As per the defendant's
contention the plaintiff and defendant were carrying on alleged
partnership business in the name of M/s. Active Engineers. In such
situation, onus shifts to the defendant to explain how the firm M/s.
Diamond Engineers and Fabrication is shown as possessor of suit
property. So far as the electricity bills are concerned they stand in the
name of the plaintiff. It is also pertinent to note here that, merely
because the defendant or M/s. Diamond Engineers and Fabricators are
paying the Municipal Taxes and Electricity charges that in itself does
not create any right, title, interest in their favour in respect of the suit
property. The defendant examined Sanjay Salunkhe an employee of
Cosmoss Bank, branch Khadki as P.W.I at Exh.242, he has produced
account opening form dated 04/01/1986 of account of M/s. Active
Engineers at Exh. 244, D.W.2 Sanjay has deposed that the Form Exh.
244 bears signature of the plaintiff Arvind Govande and Shri.
Shashikant Purandare. But in the cross examination he has deposed that
while opening an account the photograph of account holder is obtained
on account opening form but no such photograph of plaintiff is affixed
on Exh.244. This witness has further deposed in the cross examination
that the bank never demanded residential proof, photograph, and pan
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number from the plaintiff. The bank never-issued any letter to the
plaintiff for producing registered partnership deed and lease deed of
suit property. In such situation, merely because an account opening
form for the account of M/s. Active Engineers is produced on record it
cannot be said that the plaintiff had entered into partnership and had
applied for opening of account of partnership firm. As it is already
discussed above, the evidence required for proving existence of relation
of partnership is production of registered partnership deed in its
absence the evidence given by the bank employee regarding opening
account in the name of partnership firm is not-proper and sufficient.”
Issue No.4 was decided by the trial Court in the affirmative and issue No.5 was
decided in the negative by making the following observations:
“As I have already discussed above, that the plaintiff has proved that
the defendant and her relative had requested him to allow the defendant
to use the suit property for lunch and dining of defendants employees
and the plaintiff had called the defendant to vacate the suit property
vide letter dated 07/11/1990 at Exh. 54 and 30/11/90 at Exh. 55. The
defendant has failed to prove that she is in possession of suit property
in the capacity of partner of M/s. Active Engineers. In such situation,
as the defendant is holding the possession of suit property in spite of
request of the plaintiff to vacate the suit property the defendant is
trespasser in the suit property. Therefore, the plaintiff is entitled to get
relief of declaration that the defendant is trespasser of the suit property
and is illegally occupying the suit property. The plaintiff is also entitled
to receive the possession of suit property. The defendant has failed to
prove that she is plaintiff’s partner and the suit property was allotted
and purchased by the firm and thereby she is having any right, title,
interest in the suit property. Hence, I answer issue no. 4 in the
affirmative and issue no. 5 in the negative.”
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10. The lower appellate Court independently analysed the evidence
produced by the parties including the admissions made by Subhash Anant Kogekar
and held that the appellant has failed to prove the opening of joint account by her
husband and the respondent in Cosmos Bank in the name of partnership and, in any
case, mere opening of account in the name of M/s. Active Engineers is not
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sufficient to establish that respondent had entered into partnership with the
appellant’s husband, which was followed by execution of partnership deed dated
23.11.1988 with her. The lower appellate Court also referred to the statement of
PW-2 Rajaram Bhujbal that permission of MIDC is necessary for running business
or for making construction over the suit property and held that in the absence of
required permission neither any business could have been started in the suit
property nor construction could have been made on it. As regards the payment of
municipal taxes, the lower appellate Court noted that the receipts were issued in the
name of M/s. Diamond Engineers and Fabricators and observed that if the business
was being carried on in the name of Active Engineers how M/s. Diamond Engineers
and Fabricators could have been shown as owner of the suit property. All this is
evinced from paragraph 15 of the judgment of the lower appellate Court, which is
extracted below:
“It has come in the evidence of Rajaram Bhujbal (PW-2) that the plot is
allotted to the Respondent-Plaintiff by Lease Agreement dated 24-10-
1979, He further stated that partnership is required to be registered and
they are not accepting' unregistered partnership. He further stated that in
their record there is no any document to show that Respondent-Plaintiff
entered into any partnership with any other person. Moreover, Rajaram
Bhujbal (PW-2) in the course of cross-examination stated as per
permission granted by MIDC, it is necessary to run business, and for
partnership business, previous permission of the MIDC is necessary.
However, there is nothing on record to show that Appellant-defendant
or Shashikant Purandare applied for permission to run partnership
business on suit plot. Moreover, it is also mandatory to obtain previous
permission of MIDC to make any construction for running partnership
business on the plot of MIDC. Subhash Kogekar (DW-1) power of
attorney holder of appellant-defendant in the evidence stated that
appellant-defendant or her husband are not admitted as partnership for
running business on suit plot, therefore, no any permission of MIDC
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was obtained for making construction on the suit plot. Moreover,
Subhash Kogekar (DW-1) in the course of cross-examination admitted
that he does not possess any documentary evidence to show that
respondent-plaintiff had given possession of the suit plot. He further
admitted that in agreement, suit plot stands in the name of respondent-
plaintiff. He further admitted that on partnership agreements dated
22-10-1982 and 23-12-1988, there is no signatures of witnesses. All
these documents given by Subhash Kogekar (DW-1) implicitly show
that no any partnership deed came to be executed between respondent-
plaintiff and appellant-defendant or her husband. Thus, contention of
appellant-defendant that after death of her husband, respondent-plaintiff
had given offer to her to admit as a partner and to form a partnership
firm, is not acceptable at all. appellant-defendant failed to establish that
she along with respondent-plaintiff, is running partnership business on
the suit plot. On the other hand, contention of the respondent-plaintiff
that he permitted appellant-defendant to utilize suit plot for lunch and
dinning purpose of her employees, appears to be trustworthy one. Thus,
respondent-plaintiff established that possession of the appellant-
defendant over the suit plot was permissive. Hence I answer point No.l
in the affirmative and point No.2 in the negative.”
11. The argument of the appellant that even though the partnership was un-
registered, the same ought to have been considered by the trial Court was rejected
by the lower appellate Court by making the following observations:
“Appellant-defendant herself has not stepped into witness box.
Appellant-defendant has examined Subhash Kogekar (DW-1) as her
power of attorney holder. Subhash Kogekar (DW-1) in his evidence
admitted that he himself or appellant-defendant have not executed any
registered document in respect of the suit plot. From the admission, it is
clear that no registered Partnership Deed came to be executed between
appellant-defendant and respondent-plaintiff. Learned Counsel for the
appellant-defendant submitted that Shashikant Purandare was a partner
of M/s. Active Engineers along with respondent-plaintiff, and they have
opened account in the name of M/s. Active Engineers, which shows
that respondent-plaintiff and Shashikant Purandare were partners of
M/s. Active Engineers. Sanjay Salunkhe (DW-2) in his evidence on
oath stated that Account Opening Form of M/s. Active Engineers (Exh.
244) bears the signature of respondent-plaintiff and Shri Shashikant
Purandare. However, in the course of cross-examination Sanjay
Salunkhe (DW-2) stated that while opening account, photograph of
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account holder is affixed on Account Opening Form. However, Account
Opening Form (Exh. 244) shows that no such photograph of
respondent-plaintiff is affixed on Account Opening Form. Moreover, it
has come in the evidence of Sanjay Salunkhe (DW-2) that Cosmos
Branch-Khadki never demanded residential proof and PAN number of
respondent-plaintiff. In such circumstances, doubt creates about Form
(Exh. 244). Moreover, merely because Bank Account is opened in the
name of M/s. Active Engineers, itself is not sufficient to establish that
respondent-plaintiff along with Shashikant Purandare entered into
partnership and had applied for Opening of account of Partnership Firm.
Moreover, Account opening (Exh. 244) does not bear signature of
appellant-defendant. Moreover, municipal taxes, receipts and notice
issued by PMC filed by appellant-defendant show that same are in the
name of M/s. Diamond Engineers and Fabrications. As per contention
of appellant-defendant, she along with respondent-plaintiff were
carrying partnership business in M/s. Active Engineers. Then how M/s.
Diamond Engineers and Fabrications are shown as possessor of the suit
plot. Moreover, it is settled principle of law that merely paying taxes
itself not confer any right of property.”
12. The second appeal filed by the defendant-appellant was dismissed by
the learned Single Judge of the Bombay High Court, who held that no question of
law much less any substantial question of law arises for consideration. The learned
Single Judge relied upon the judgment of the Nagpur High Court in Jamal Usman
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Kachi v. Firm Umar Haji Karim Shop AIR 1943 Nagpur 175 and held that the
appellant cannot rely upon the unregistered partnership deed for defending her
cause in the suit. He distinguished the judgment of the Calcutta High Court in Ajit
Kumar Maity v. Narendra Nath Jana AIR 1955 Calcutta 224 by making the
following observations:
“As noted earlier, in the case before the Calcutta High Court, the
defendants therein were not attempting to enforce their own rights but
had set up a plea to defeat the plaintiffs claim. I am, therefore, of the
opinion that on the facts, the decision of the Calcutta High Court is not
applicable in the present case. Apart from that, perusal of Section 69
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shows that bar is created under sub-sections (1) and (2) against the
plaintiff for enforcing a right arising from a contract either on behalf of
the firm against the third party or on behalf of any person suing as a
partner in a firm against the firm or any person alleged to have been a
partner in the firm unless the partnership is registered. The Nagpur High
Court in the case of Jamal Usman (supra) observed that a claim of set-
off may be a partial defence to a suit but a claim arising out of a
contract may also be set up in defence to negative the right of suit
altogether and it is that defence which is placed under the same
disability as the right to bring a Suit at all insofar as unregistered firms
are concerned. In my opinion, sub-sections (1) and (2) of Section 69 are
required to be harmoniously construed with subsection (3) thereof. It
cannot be said that the disability is created under subsections (1) and
(2) of Section 69 only against the plaintiff from enforcing a right arising
from the contract and disability is not created against the defendant. I,
therefore, prefer to follow the view taken by Nagpur High Court in the
case of Jamal Usman (supra).”
13. Shri Pallav Shishodia, learned senior counsel for the appellant relied
upon Clause 6 of partnership deed dated 23.11.1988 allegedly executed between
the appellant and the respondent and argued that even though the same was not
registered, the trial Court should have declared that the suit property was part of the
assets of the partnership firm and the appellant was entitled to a declaration that she
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has the right to continue in possession of the suit property till the dissolution of the
partnership firm. In support of his argument, learned senior counsel referred to
Section 69 of the Indian Partnership Act, 1932 and the judgment of this Court in
Jagdish Chander Gupta v. Kajaria Traders (India) Ltd. 1964 (8) SCR 50 and of the
Calcutta High Court in Ajit Kumar Maity’s case. Shri Shishodia submitted that the
judgment of the Nagpur High Court in Jamal Usman Kachi v. Firm Umar Haji
Karim Shop (supra) is distinguishable on facts and even otherwise the same does
not lay down the correct law.
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14. Shri Amol Chitale, learned counsel for the respondents supported the
impugned judgment and those of the trial Court and the lower appellate Court and
argued that the appellant is not entitled to any relief because she could not prove
execution of partnership deed dated 23.11.1988 and the two Courts had
concurrently found that she was unauthorisedly occupying the suit property. Shri
Chitale further argued that the finding recorded by the trial Court and the lower
appellate Court on various issues were pure finding of fact and the High Court
rightly declined to interfere with the same.
15. Before dealing with the rival contentions, we consider it necessary to
observe that the appellant has not challenged the finding recorded by the trial Court
and the lower appellate Court that the suit property was allotted to the respondent
by MIDC on lease basis and the appellant had no privity of contract with MIDC.
16. We shall now consider the question whether the respondent had
executed partnership deed dated 23.11.1988 with the appellant and she was in
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possession of the suit property as a partner.
17. In his evidence, the respondent categorically stated that the appellant is
neither his partner nor a tenant nor a licenser and that she was in illegal possession
of the suit property. The respondent denied the suggestion that he and the
appellant’s husband were partners of the firm M/s. Active Engineers and that she
was inducted in the partnership business after the death of her husband. The
respondent denied the execution of partnership deed dated 23.11.1988 and claimed
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that the appellant had neither invested Rs.1,25,000 by way of capital nor spent
Rs.3,00,000 for the construction of mezzanine floor and fixing of furniture. The
respondent also denied that from 1982-1985, he was a partner of Shri Subhash
Anant Kogekar in respect of the suit property and had done business with him and
he had paid installments of the suit property to MIDC. He also denied the
suggestion that a joint bank account was opened in the name of Active Engineers or
that he had given authority to Subhash Anant Kogekar to operate the account of the
firm.
18. In his examination-in-chief, which was in the form of an affidavit,
Subhash Anant Kogekar stated that the appellant is in possession of the suit
property as partner of M/s. Active Engineers. He denied having sought permission
of the respondent for using the suit property for lunch and dinner of his employees
and that he or his relatives started using the same for business purposes without the
knowledge and consent of the respondent. Subhash Kogekar claimed that the
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respondent had business relation with him and did business in partnership from
1982 in the name and style of M/s. Active Engineers and that at his asking, the
respondent entered into partnership with his brother-in-law Shri Shashikant M.
Purandare w.e.f. 30.12.1985 for doing the business of sale and manufacturing of
engineering and chemical items and further that after the death of Shri Shashikant
M. Purandare, the appellant was inducted as a partner in the firm and fresh
partnership deed was executed on 23.11.1988 for doing the same business. He then
stated that the respondent had not paid taxes to Pimpri Chinchwad Municipal
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Corporation and he had paid the dues as proprietor of M/s. Diamond Engineers
and Fabricators. According to Shri Subhash Anant Kogekar, the respondent got the
electricity supply disconnected sometime in 1995-96 and since then the appellant is
doing business in the suit property with his help and the help of his concern, viz.,
M/s. Diamond Engineers and Fabricators. He also stated that the respondent had
permitted the appellant to construct industrial shed on the suit plot for the
partnership business. In paragraphs 12, 14 to 16, Shri Subhash Anant Kogekar
made the following statements:
“12. I say that, upon formation of partnership firm, namely, Active
Engineers, the plaintiff allowed and permitted defendant to construct
the industrial shed on the suit plot to run partnership business. This
defendant who invested his own fund by way of capital in the
partnership firm. Out of these funds this defendant, with the help of her
brother, Mr. Kogekar, i.e. myself got industrial shed constructed arid
this industrial shed and the land thereunder belongs to the partnership
firm. However, in the record of M.I.D.C., the said suit plot was shown
and recorded in the name of plaintiff as a lessee. Therefore, in absence
of any lease deed or other document of transfer or assignment, executed
by plaintiff in favour of partnership firm, the said plot continued to be
shown in the name of plaintiff in MIDC and municipal corporation
record.
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14. I say that, after construction of factory shade, this defendant
continued business activity on payment of all outgoings of factory
premises out of income arrived from Active Engineers. As owner
thereof the plaintiff did not object for discharge of this liability, to this
defendant in connection of suit property.
15. I say that, the plaintiff had approached Shri Subhash Kogekar,
Proprietor of M/s Diamond Engineers and Fabricators, that is myself,
who is having the firm in front of the suit property and requested me to
get all right, title and interest of plaintiff in the suit property and as the
partner of active Engineers, assigned in the name of Subhash Kogekar.
Shri Subhash Kogekar i.e. myself had paid substantial amounts to
M.I.D.C, Pimpri Chinchwad Municipal Corporation etc., with respect
to the suit property and for and on behalf of the plaintiff as well as for
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and on behalf of M/s Active Engineers and upon negotiation and
finalization the consideration. I, Shri Subhash Kogekar orally admitted
to acquire all rights and interests of the plaintiff in the suit property
from the plaintiff. I say that I as Shri Subhash Kogekar had paid the
consideration for the same to the plaintiff as against all rights, title and
interest of the plaintiff in the said property together with share as a
partner of a partnership firm of active engineers.
16. I say that in consideration thereof, the plaintiff has executed power
of attorney in my favour. However, the plaintiff even on accepting the
consideration, avoided to execute the necessary documentation of
transfer/assignment of suit property, in favour of Shri Subhash Kogekar.
I say that the plaintiff, by entering the partnership with the defendant,
got factory premises constructed out of the funds of the defendant. The
plaintiff has received practically all his investment made by him
regarding the suit property, and then he avoided to execute necessary
deeds or documents to transfer or assign his right, title and interest in
the suit property in favour of the said Shri Subhash Kogekar, i.e.
myself. Now by taking advantage of inaction on the part of plaintiff in
this regard, the plaintiff is making allegations of trespasser against the
defendant. Thus the plaintiff deliberately and intentionally suppressed
all these material fact from the Hon. Court and thereby the plaintiff has
not come with clean hands before the Hon. Court in claiming the relief
against this defendant. Hence, suit filed by plaintiff is liable to be
dismissed.”
(reproduced from the appeal paperbook)
19. In the cross-examination, which was conducted in four installments
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Subhash Anant Kogekar made the following admissions:
i. That he had taken Shade No. W-113 on lease from MIDC in his personal
capacity and was doing business in the name of M/s. Diamond Engineers and
Fabricators.
ii. That he and his sister, i.e., the appellant did not execute any registered
document about the suit property.
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iii. That he and his sister are using the suit property.
iv. That the suit filed by the appellant against the respondent was
dismissed.
v. That neither the appellant nor he obtained permission from MIDC for
making construction on the suit property/structural changes though
such permission is mandatory.
vi. That vide letters dated 6.11.1990, 7.11.1990 and 30.11.1990, the
respondent had demanded possession of the suit property from the
appellant.
vii. That there is no documentary evidence to show that he had asked the
respondent to enter into partnership with Shri Shashikant M. Purandare
or that after the demise of Shri Shashikant M. Purandare, the
respondent had made an offer to the appellant to induct as partner in
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the business of the firm M/s. Active Engineers.
viii. That the partnership deeds have neither been signed by the witnesses
nor the same are registered either under the Partnership Act or the
Registration Act.
In the third installment of the cross-examination (8.9.2010), Subhash Anant
Kogekar made the following statements:
“I, Subhash Kogekar do only one business it is in the name Diamond
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Fabrication India Private Limited. It is true to say that neither myself
nor Leela Purandare possess any registered document to show that Plot
no. W-97 was transferred in the name of Active Engineers. It is true to
say that I have sent document Exh.85 dated 24/07/1985 to handwriting
expert to verify whether or not it bears signature of the plaintiff. It is
true to say that I have not produced any documentary evidence to show
that I had submitted the document as per the reminder issued by PCMC
dated 13/07/1995. It is true to say that I have not submitted any
document to PCMC to show that Diamond Engineers are legal
occupiers of plot no. W-97. I have produced a letter showing that the
officers of PCMC had visited plot no. W-97. It is not true to say that
only-some portion of plot no. W-97 is in possession of Diamond
Engineers. It is true to say that I have not issued any letter to PCMC
stating that the name of Diamond Engineers is wrongly recorded as
occupier of W-97. It is true to say that I have not issued any letter or
notice to PCMC through my Advocate. It is not true to say that the
contents of letter issued by me Subhash Kogekar Exh.85/26 dated
16/08/1994 and Exh.85/30 dated 16/02/1998 are contradictory to each
other and these documents are false, fabricated and imaginary. It is not
true to say that Exh. 235 bears false seal of Diamond Engineers. It is
true to say that in my written statement it is not mentioned that
Diamond Engineers is legal occupier of Plot no. W-97. I am not aware
about Exh. 55 hence there was no question of replying the same. (At
this stage learned counsel for the plaintiff open the Envelop of Exh. 55)
Now I am shown the letter issued by the plaintiff to Leela Purandare
dated 30/11/1990. I have not received the said letter. It is true to say
that neither myself nor plaintiff and defendant sent the necessary
documents to MIDC for obtaining permission for Active Engineers. It
is true to say that the test report of MSEB i.e. Exh. 96 is received on
31/08/1985. It is not true to say that there was no electric supply from
MSEB to plot W-97 prior to 1986. It is not true to say that there was
no 'business of manufacturing goods on plot W-97 prior to 1986. It is
true to say that the electric supply to Plot no. W-97 is in the name of
plaintiff A.V. Govande. Now I am shown certified copy of Exh. 1 of
R.CS no. 101/1991 filed at Exh.57. It is true to say that the plaintiff
was not party in the said suit. It is true to say that when the plaintiff
made an application, he was made defendant in the said suit. It is true
to say that I am using plot no. W-97. It is true to say that myself and
defendant Leela Purandare are using plot no. W-97 without obtaining
any written permission of MIDC. It is not true to say that I am using
plot no. W-97 illegally and unauthorizedly. It is not true to say that I
am using plaintiffs property without any authorization illegally since
1988. It is not true to say that I am deposing false. Re-examination.”
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(reproduced from the appeal paperbook)
20. A careful analysis of the statements of the respondent, the power of
attorney holder of the appellant and other witnesses examined by them shows that
even though the appellant and the respondent had not entered into any agreement
what to say of registered partnership agreement, the appellant and Subhash Anant
Kogekar had taken possession of the suit property without obtaining permission
from the respondent and raised construction without obtaining permission from
MIDC and without getting the plan sanctioned. This conclusion is fully supported
by the statement of PW-2 Rajaram Tukaram Bhujbal, who was employed with
MIDC. PW-2 categorically stated that MIDC does not have any partnership deed of
the respondent and any other person on their record and that no letter had been
received from the plaintiff or any other person seeking permission for construction.
In cross-examination, PW-2 also stated that permission of MIDC is required for
doing partnership business. PW-3 Vishvanath Sadhu Wakhare stated that as per the
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tax assessment record, M/s. Diamond Engineers and Fabricators are registered as
possessors of the suit property, though there is no document showing allotment of
the suit property in favour of M/s. Diamond Engineers and Fabricators and that he
had not seen any partnership document between the appellant and the respondent.
In cross-examination, PW-3 disclosed that tax for the suit property was paid by
M/s. Diamond Engineers and Fabricators.
21. Since the appellant had pleaded that the respondent had inducted her
as partner in place of her husband and executed partnership agreement dated
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23.11.1988 and she was in possession of the suit property as partner of the firm
M/s. Active Engineers, the onus was upon her to prove all these facts. Both, the
trial Court and the lower appellate Court concurrently held that the respondent had
not entered into any partnership with the appellant and that she had unauthorisedly
occupied the suit property and made construction for doing business. Both the
Courts further held that the appellant could not prove the opening of joint account
by respondent and her husband and that she was in possession of the suit property
as partner of M/s. Active Engineers. These findings are pure findings of fact and
are amply supported by this Court’s analysis of the evidence produced by the
parties. Therefore, we do not find any valid ground to interfere with the impugned
judgment. In view of the above conclusion, we do not consider it necessary to
decide the question whether the appellant could defend the suit filed by the
respondent on the strength of the unregistered partnership deed dated 23.11.1988
allegedly executed between her and the respondent.
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22. In the result, the appeals are dismissed with cost quantified at
Rs.50,000. The appellant shall pay the cost to the legal representatives of the
respondent within two months and hand over vacant possession of the suit property
to the legal representatives on or before 31.3.2014. This would be subject to her
filing an undertaking before this Court within a period of four weeks from today.
During the intervening period, the appellant shall not induct any person in the suit
property in any capacity whatsoever or alienate the same to any other person.
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......………………………..….J.
[G.S. SINGHVI]
New Delhi, ...….……..…..………………..J.
[V. GOPALA GOWDA]
November 19, 2013.
JUDGMENT
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