The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH MISCELLANEOUS FIRST APPEAL NO.7551/2024 (CPC) BETWEEN: 1 . M/S. NIMAH URBANSCAPES LLP REGISTERED OFFICE AT NO.2846/100/3, 1ST CROSS, 11TH BLOCK, NEAR ARKAVATHI LAYOUT, RACHENAHALLI VILLAGE, THANISANDRA, BENGALURU - 560 077. 2 . MR. MAZAR JAVEED S/O DANTERMAKKI MOHAMMED PEER, AGED ABOUT 62 YEARS, RESIDING AT NO.B 203, PURVA VENEZIA, NEAR MOTHER DAIRY, YELAHANKA NEW TOWN, BENGALURU-560 064. 3 . MRS. ASIFA JAVEED, D/O MOHAMMED ISSAQ, W/O MR. MAZHAR JAVEED, AGED ABOUT 50 YEARS, RESIDING AT NO.B 203, PURVA VENEZIA, NEAR MOTHER DAIRY, YELAHANKA NEW TOWN, BENGALURU-560 064. … APPELLANTS (BY SRI ANIL KUMAR SHETTY, ADVOCATE) 2 AND: MR. ALTAF ABDULREHMAN NADAF S/O ABDULREHMAN NADAF, AGED ABOUT 46 YEARS, PERMANENT RESIDENT OF NO.678, SAVADATTI ROAD, HAVERI PETH, M.J.NAGAR, HUBLI, DHARWAD-580 006. … RESPONDENT (BY SRI S SHANKAR SHETTY, ADVOCATE) THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 20.09.2024 PASSED ON I.A.NO.1 IN O.S.NO.5221/2024 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH.NO.23 ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR THE COURT THIS DAY, JUDGMENT ON 06.01.2025 PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT This MFA is filed challenging the order dated 20.09.2024 passed on I.A.No.1 in O.S.No.5221/2024 by the XXV Additional City Civil and Sessions Judge, Bengaluru. 2. Heard the learned counsel appearing for the respective parties. 3 3. The factual matrix of the case of the
Facts
respondent/plaintiff before the Trial Court while seeking relief of declaration to declare that supplementary LLP partnership agreements dated 16.01.2024 and 23.01.2024 and all other ancillary documents submitted by the defendants to the Ministry of Corporate Affairs are null and void and not binding on the plaintiff and as well M/s Nimah Urbanscapes LLP and consequently, sought for the relief of mandatory injunction directing defendant Nos.2 and 3 to remove themselves from the office of M/s Nimah Urbanscapes LLP unauthorisedly and handover all the belongings including the keys of the Firm to the plaintiff forthwith and grant such other relief's and inter alia sought for the relief of temporary injunction against the defendants from selling, alienating, encumbering or creating third party rights over the suit schedule property. 4. The plaintiff contends that he is an authorized designated partner of M/s Nimah Urbanscapes LLP Firm from 05.11.2018 having 90% contribution in the said LLP Firm and partners have also acquired the residential converted land which 4 has been morefully described in the schedule. Earlier, sale deed with respect to the land was in the name of M/s Quantus Urbanscapes LLP and in view of change in the name as M/s Nimah Urbanscapes LLP Quantus, the deed of declaration with respect to the above said property has been executed by the partners of the Firm. It is contended that during the course of business of the Firm, the plaintiff fell sick and his health condition was deteriorated and he was frequently visiting the hospital at Dharwad. On 16.01.2024, the plaintiff was in the hospital for whole day for the diagnosis, collection of report and medication. The defendant Nos.2 and 3 who are known people to him since 2016 and he was under treatment due to his illness, took the assistance of defendant Nos.2 and 3 and taking advantage of the same, got executed themselves a supplementary LLP Partnership Agreement dated 16.01.2024 and they have filed Form -3 and 4 on 18.01.2024 to remove
Legal Reasoning
to the conclusion that there is a prima facie documents in favour 20 of the defendants i.e., Annexure-B, D, E and F wherein it discloses for having executed the document and even requested to upload the document in MCA and only after thought, in the month of June and July, 2024 raised the grounds and filed the suit. When the defendants are running the business of Firm after inducting appellants as partners and even the plaintiff is also a party to the document dated 16.01.2024 and also not disputed the resignation letter dated 20.01.2024 and no challenge is made with regard to the said resignation letter and only challenge is made in respect of the documents dated 16.01.2024 and 23.01.2024, hence, there is a force in the contention of the appellants’ counsel that the Trial Court committed an error in finding prima facie case in favour of the plaintiff. 20. On the other hand, the documents which have been placed before the Court are clearly disclose prima facie case in favour of the defendants in view of Annexure-B, D, E and F and there is a balance of convenience in favour of the defendants and not in favour of the plaintiff. If the defendants restrained from alienating the suit schedule property, the defendants will 21 put to irreparable loss and injury and hence, the observation made by the Trial Court is erroneous. 21. The learned counsel for the respondent relied upon the judgment in the case of VEENA SINGH referred supra regarding execution of the document and brought to notice of this Court paragraph 73 wherein it discussed with regard to mere execution of the document does not stand admitted having signed the document and this principle is not applicable to the facts of the case on hand for the reason that the respondent not disputes the execution of the document at Annexure-B and also not disputes the letter of resignation at Annexure-D as well as Annexure-E and immediately after the execution of the document, sent the information to upload the same in MCA portal to the chartered accountant and in the month of March, 2024 reply was given stating that same is uploaded and process has been completed. When such material is available on record, the very contention of the respondent’s counsel cannot be accepted. Having taken note of the material available on record it discloses that the prima material is in favour of the appellants 22 and not in favour of the respondent and the Trial Court committed an error in grating the temporary injunction in coming to the conclusion that there is a prima facie case in favour of the respondent. Hence, the order of the Trial Court requires interference of this Court. accordingly, I answer the above point as affirmative. 22. In view of the discussions made above, I pass the following:
Arguments
earlier partner Mr. Ruch Abdul Hameed from position of designated partner of the Firm and fraudulently obtained his signatures on the blank sheets and inducted themselves as partners and played fraud on the plaintiff and also created the 5 document dated 23.01.2024 stating themselves to be the designated partners of the LLP to illegally remove the plaintiff from his position of designated partner. It is also the contention of the plaintiff that fraudulently obtained the document of resignation but he had invested Rs.9 crore with M/s Nimha Urbanscapes LLP and his share is 90% in the said Firm and hence, sought for the relief of declaration and inter alia sought for the relief of temporary injunction restraining the defendants from selling or alienating the suit schedule property to any other person. 5. Defendant Nos.1 to 3 appeared and filed their statement of objections denying the averments made in the plaint and contend that the respondent/plaintiff is the signatory to the agreement dated 16.01.2024 and also allegation of fraud and collusion is baseless. It is also contended that the very partner who went out from the Firm i.e., Ruch Abdul Hameed had executed the affidavit and hence, the grounds urged in the plaint is speculative. It is also contended that in pursuant to the resignation, the plaintiff has received a sum of Rs.3½ crore 6 towards settlement and he has retained the said amount. It is also contended that he has also communicated to the continuing partners as well as to the Charted Accountant to process and proceeded in the completion of formalities to report the change in constitution to the statutory authorities. The plaintiff is well aware of the process and on the ground of acquiescence and conduct, the plaintiff would be disentitled to the relief. The plaintiff has to value the relief on the market value since he is not in the office of defendant No.1’s Firm. It is also contended that when the appellants are doing business, plaintiff has no locus standi to seek the relief of delivery of possession. The contention made that the plaintiff contributed a sum of Rs.9 crore in the defendant No.1’s firm is baseless, thus, the plaintiff has no right to seek such a relief. 6. The Trial Court having considered the material available on record formulated the points and answered the same as affirmative in coming to the conclusion that the plaintiff has disputed the resignation letter on the ground that the same has not been served through any mode of service including 7 email, fax, etc. As per the version of the plaintiff, by taking undue advantage of his health condition who was hospitalized, defendants themselves got executed a supplementary LLP partnership agreement and also submitted Form No.3 and 4 on 23.01.2024 to illegally remove the plaintiff from his position of designated partner. The defendants have forged the signatures of plaintiff and also fraudulently obtained the signature of designated partner by Ruch Abdul Hameed. Now, there is an apprehension of alienating the property. Hence, comes to the conclusion that prima facie case is made out and allowed the application. Being aggrieved by the order of the Trial Court, the present appeal is filed by the defendants before this Court. 7. The main contention of the learned counsel appearing for the appellants before this Court is that the allegation of fraud or collusion is required to be supported by material facts and suit is misconceived. The Trial Court ought to have held that the respondent has no locus standi to question the agreement dated 16.01.2024 as the same purports to exit Ruch Abdul Hameed from the Firm and induct the appellants 8 No.2 and 3 into the firm. The counsel also would vehemently contend that the Trial Court ought to have held that respondent does not dispute issuance of his resignation letter and the same is also corroborated by photographs and video submitted by the appellants. The counsel also would vehemently contend that the Trial Court ought to have held that respondent has not challenged his resignation but challenged only the process of intimation of the same to the competent authority. The Trial Court ought to have held that respondent having received Rs.3½ crore towards settlement and having retained the same, has suppressed the material facts and hence, the plaintiff had not approached the Court with clean hands and inspite of it, the Trial Court granted the relief of temporary injunction. The counsel also would vehemently contend that the document dated 16.01.2024 is also signed by his wife as a witness and also brought to notice of this Court the communication sent for having signed the entire document on 22.01.2024 itself to upload the same and inspite of it, the Trial Court granted the relief. Hence, the finding of the Trial Court requires interference of this Court. 9 8. Per contra, the learned counsel appearing for the respondent would vehemently contend that the respondent had challenged both supplemental agreements dated 16.01.2024 and 23.04.2024. The counsel also would vehemently contend that the respondent was under medication and the medical report also clearly discloses that he was hospitalized. The plaintiff was ousted on 23.01.2024. When the question was put to the counsel for the respondent for having received the amount of Rs.3½ crore, he made the submission that the said amount was paid in respect of other transaction and sought time to produced the documents and thereafter produced the documents No.1 to 10 i.e., the copy of statement of account for relevant period of ICICI Bank; copy of notice dated 29.07.2024; copy of reply dated 29.08.2024; statement of accounts; balance sheet; copy of complaint dated 28.06.2024 filed by the respondent to the Registrar of Companies; reply dated 03.09.2024 by the Registrar of companies; endorsement dated 06.07.2024 by the Sub-Urban Police, Dharwad to the respondent; FIR registered in Cr.No.150/2024 and copy of Form No.9. 10 9. The counsel for the appellants in reply to these documents made his further submission that the respondent not made any such payment in favour of the owner of the property to which premises is leased out to the Firm and the same is in the name of the Firm and not in the individual capacity. Hence, the respondent cannot claim that the same is in individual capacity and the amount was paid out of the investment made in the Firm. The counsel also would vehemently contend that no explanation is given for having received the amount of Rs.3½ crore except showing the payment of Rs.3 lakh. The counsel also would vehemently contend that the owner has surrendered the premises in favour of the Firm and not in favour of the respondent. The counsel also would vehemently contend that the payment shown to the Malabar Gold is nowhere concerned and the same is not stated in the plaint and new statement is made before this Court. The fact that resignation letter is signed and the same is not disputed and now, cannot dispute the transaction. 11 10. In reply to this argument, the counsel for the respondent would vehemently contend that, the payment was made towards refund of advance money and signatures are obtained by misrepresentation. The counsel also submits that 90% investment is made by the plaintiff i.e., Rs.9 crore and brought to notice of this Court the document placed before the Court for having made the payment and particularly, the document No.5 shows the investment of 4½ crore and also long term borrowings and long term loans and advances. 11. In reply to this argument, the counsel for the appellants would vehemently contend that when the wife is a witness to the document at Annexure-B, now cannot contend that by misrepresentation, same was taken and complaint is also filed after filing of the suit for creation of said document. When the resignation letter is signed and the same is not challenged and no relief is sought with regard to the resignation letter except challenging the agreements dated 16.01.2024 and 23.01.2024 i.e., Annexure- B and F, the Court has to see whether there is a prima facie case made out or not. But the 12 Trial Court fails to take note of the prima facie documents placed before it. 12. The counsel also brought to notice of this Court Annexure-E which clearly discloses that the respondent/plaintiff has requested to upload the same in MCA portal and even in the month of March 2024, a reply was given with regard to the process for removal of the name of the plaintiff as a partner has been completed from their end and no dispute till then and suit was filed only in the month of July, 2024 and kept quiet and acquiesced his right. 13. The counsel for the respondent in support of his arguments relied upon the judgment of the Apex Court reported in (2022) 7 SCC 1 in the case of VEENA SINGH (DEAD) THROUGH LEGAL REPRESENTATIVE vs DISTRICT REGISTRAR/ADDITONAL COLLECTOR (F/R) AND ANOTHER wherein the Apex Court held with regard to denial of execution by signatory and mere execution of document and signing of an instrument/agreement cannot be a ground and also brought to notice of this Court paragraph 73 wherein discussion 13 was made that the execution of a document does not stand admitted merely because a person admits to having signed the document. Hence, contend that the case of the appellants cannot be accepted. 14. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record as well as the principles laid down on the judgment referred supra, the points that would arise for the consideration of this Court are: 1. Whether the Trial Court committed an error in granting the relief of temporary injunction in favour of the plaintiff as sought in I.A.No.1 and whether it requires interference of this Court? 2. What order? Point No.1: 15. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record and also taking into note of the prayer sought in the 14 plaint which is annexed as Annexure-G wherein the relief is sought for declaration to declare that the documents dated 16.01.2024 and 23.01.2024 are null and void and also sought for the relief of mandatory injunction and inter alia sought for the relief of temporary injunction for not to sell or not to alienate the suit schedule property. The Trial Court granted the relief of temporary injunction having considered the pleadings of both the parties in coming to the conclusion that the main contention of the plaintiff is that without his knowledge and consent, the defendants used his digital signature for filing Form No.3 and 4 and at no point of time, the plaintiff has given his consent to the defendants to come for any meeting and he has not tendered his resignation letter and not served the same through any mode of service including e-mail, fax, etc. The Trial Court accepted the contention of the plaintiff that taking undue advantage of his ill- health condition, the document dated 16.01.2024 got executed and submitted Form No.3 and 4 on 23.01.2024 and hence, granted the relief of temporary injunction. It is also opined that the defendants have forged the signature of plaintiff and fraudulently obtained the signature of designated partner by 15 Ruch Abdul Hameed. Now the plaintiff is having apprehension that the defendants at any movement will alienate or create the charge over the suit schedule property. 16. Having perused the pleadings of the parties and also on perusal of the document dated 16.01.2024 at Annexure-B, it is clear that the same is signed by the plaintiff. The main contention of the plaintiff that he was hospitalized. But the document reveals that he had signed the document personally and also said document discloses the capital of LLP is Rs.5 crore and out of that he had invested 90% i.e., 4½ crore. In this document, the appellants are included as partners. The said document also discloses the signature of existing partner i.e., the plaintiff and apart from that one of the witnesses in the said document is none other than the wife of the plaintiff and the said fact is not disputed by the plaintiff. 17. It is also important to note that the contention of the plaintiff that Ruch Abdul Hameed was thrown out from the Firm but he had given an affidavit as per Annexure-C and also the fact that he had not disputed the execution of the affidavit and 16 also going out of from the Firm. Annexure-D is the letter addressed by the plaintiff tendering his resignation dated 20.01.2024. It is rightly pointed out by the counsel for the appellants that same has not been challenged before the Trial Court except challenging Annexure-B and F. It is important to note that after the resignation letter at Annexure-D, Annexure-F came into existence i.e., on 23.01.2024. It is also important to note that Annexure-E is the letter correspondence made by the plaintiff himself i.e., on 22.01.2024 wherein the plaintiff stated that he has signed all the documents and handed over to Mazhar Javeed and also requested to upload the same in MCA portal i.e., Ministry of Corporate Affairs. It is also important to note that Annexure-E also discloses that in view of the letter addressed by the plaintiff, a reply was given stating that all the work relating to removal of his name as a partner has been completed from their end and the said letter is dated 12.03.2024 and the suit is filed in the month of July 2024. It is also important to note that the plaintiff not dispute the fact that he has received the amount of Rs.3½ crore. The appellants also in order to substantiate their contention that they made the payment of Rs.3½ crore as 17 settlement, produced the documents before the Court. During the course of the argument, the counsel for the respondent would vehemently contend that the said payment is towards other transaction and an attempt is made before this Court filing document No.1 for having paid the amount in favour of the land owner for having taken the premises for lease to the tune of Rs.1,95,00,000/- but the same is made by the Firm and not in the individual name of the plaintiff. 18. The counsel for the respondent also brought to notice of this Court with regard to the amount of Rs.72,50,000/- which was paid for having purchased the diamond ornaments from Malabar Gold from the family members of appellant No.2 and also payment of Rs.32,55,000/- and in total an amount of Rs.1,05,05,000/- was paid. It was mutually agreed between appellant No.2 and respondent and for that payment, appellant No.2 will refund with interest @ 10% p.a. With regard to this aspect is concerned, there is no averment in the plaint as contended by the appellants’ counsel and the same is after thought and details are given when this Court asked about the 18 other transaction. There is no explanation on the part of plaintiff for having received the amount of Rs.3½ crore. The earlier payment in favour of the landlord also in the name of the Firm and not in the individual name of plaintiff and only payment of Rs.3 lakh is admitted by the appellants that is on 17.05.2022. The fact that these two documents came into existence in the month of January, 2024 and resignation letter was tendered on 20.01.2024 and the same is reaffirmed by the plaintiff on 22.01.2024 sending the message and also admitted the very execution of this document and now the plaintiff contend that those documents were obtained by misrepresentation and the same cannot be accepted. It is rightly pointed out by the appellants’ counsel that in order to prove the fraud as contended by the respondent is concerned, there is no any material facts. The document of resignation letter and also the confirmation of execution of document and requesting to upload the same in MCA portal and the same was uploaded and process was completed and letter also sent to the chartered accountant to complete the processes clearly disclose for having executed the document of Annexure-B and F and hence, the Trial Court ought 19 to have taken note of the said fact into consideration but committed an error in coming to the conclusion that the defendants have forged the signature of the plaintiff and fraudulently obtained the signature of the designated partner by Ruch Abdul Hameed and the said reasoning is against the material available on record since the said Ruch Abdul Hameed has executed the affidavit and he also not disputed the same. It is also important to note that the plaintiff also not approached the Court challenging the document of Annexure-D. Thus, the conclusion of the Trial Court that defendants have forged the signature of the plaintiff is erroneous since the very plaintiff has not disputed his signature but his only contention is that the same has been taken by misrepresentation. 19. The Trial Court comes to the conclusion that fraudulently obtained the signature of the designated partner by Ruch Abdul Hameed and the said conclusion is also against the material available on record when the respondent did not challenge the same. Hence, the Trial Court ought to have comes
Decision
ORDER The miscellaneous first appeal is allowed. The impugned order dated 20.09.2024 passed on I.A.No.1 in O.S.No.5221/2024 by the Trial Court is set aside and consequently, I.A.No.1 is dismissed. Sd/- (H.P. SANDESH) JUDGE SN