Calcutta High Court
Surendra Agarwala vs Indira Gupta & Ors on 8 April, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 2 of 2016
(Old No: GA 1840 of 2016)
With
IA No: GA 5 of 2017
(Old No: GA 203 of 2017)
With
IA No: GA 12 of 2021
In
C.S. No. 128 of 2016
Surendra Agarwala
Versus
Indira Gupta & Ors.
Mr. Chayan Gupta
Mr. Pourush Bandyapadhyay
Mr. Arun Kr. Mishra
... For the plaintiff.
Mr. Aritra Basu
Mr. Aditya Garodia
2
Mr. Pintu Ghosh
Ms. Sangeeta Kar
... For the defendant nos. 2 & 7.
Mr. Mainak Bose
Mr. Rishabh Karnani
Mr. S.N. Pandey
.... For the defendant no.5.
Hearing Concluded On : 20.02.2025
Judgment On : 08.04.2025
Krishna Rao, J.:
1. 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.
2. 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.
3. 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).
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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).
4. 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
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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;
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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;
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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,
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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;
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g) Such further and/or other order or orders as
Your Lordships may deem fit and proper.”
5. 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
9or 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.”
6. 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.
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7. 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.
8. 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.
9. 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.
10. Mr. Gupta submits that submits that the company, namely, Narendra
Kumar Surendra Kumar & Co. was constituted as a partnership firm
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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.
11. 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.
12. 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.
13. 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.
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14. 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.
15. 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.
16. 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.
17. 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.
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18. 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.
19. 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.
20. 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.
21. 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
14
joint family. Mere pleading that a settlement had taken place cannot be
a ground to resist the claim for partition of family properties.
22. 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.
23. 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.
24. 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.
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25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
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30. 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.
31. 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.
32. Mr. Garodia submits that the plot in Amarsar, Rajasthan is not owned
by the defendant no.2.
33. 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.
34. Mr. Garodia submits that the residential flat at 74, Bibek Park, Ground
Floor, Kolkata – 700 081, is presently owned by the plaintiff.
35. 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.
36. Mr. Garodia further submits that the money which has been
transferred from the plaintiff to Narendra Kumar Surendra Kumar &
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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.
37. 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.
38. 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.
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39. 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.
40. 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.
41. 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.
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42. 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.
43. 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.
44. 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).
45. 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.
46. 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)
20
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.
47. 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.
48. 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).
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(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”.
49. 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.
50. 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
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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.
51. 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.
52. 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
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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.
53. 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
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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.
54. 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).
55. 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),
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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.
56. 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).
57. 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
26
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.
58. 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.
59. 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.
(Krishna Rao, J.)
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