Full Judgment
$~ * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
20. h September, 2017 Pronounced on:
25. h September, 2017 CS(OS) 202/2014, IA No.7237/2017 MANJU SINGH Through : Ms.Anu Mehta, Advocate. ..... Plaintiff versus DHARAMVIR SINGH AND ANR ..... Defendant Through : Ms.Amrit Kaur Oberoi, Advocate for defendant No.1 and 2. CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.
OA No.26/2016 1. This Original Appeal is filed against the impugned order dated 19.12.2015 passed in IA. No.22306/2014 by the Joint Registrar (Judicial). The operative part of said order is as under:-
"“Per contra, plaintiff has claimed that besides dissolution of partnership firm and rendition of accounts, the original suit is also for recovery of an amount of Rs.2.50 Crore which has been claimed against both the defendants including defendant no.2. Plaintiff has claimed that defendant no.2 nowhere pointed as to how and when the loan of Rs.2.25 Lacs taken by him in OA No.26/2016 in CS(OS) No.202/2016 Page 1 of 5 into the year 2002, was returned and even the documents relied upon by him does not reflect the same. It is also the claim of plaintiff that diversion of money by defendant no.1 to defendant no.2, without permission and knowledge of plaintiff, is beyond the scope of this partnership arrangement. It is further the case of plaintiff that bank records relied upon by him shows various unexplained withdrawals ranging from Rs.1.00 lac to Rs.3.00 lac by defendant no.1, for which no explanation has been offered and said withdrawals were never put the knowledge of plaintiff and defendant no.2 being the ultimate beneficiary of transfer of funds from partnership account, is the most competent and proper party to throw light into the affairs of the firm and should stand test of trial. It is further the case of plaintiff that the presence of defendant no.2 in the suit would enable this court to appreciate as to how defendant no.2 served as beneficiary and a channel to defendant no.1, to divert funds of the partnership firm. It is further claimed that prayer clause at page no.28 & 29 of the plaint needs presence of defendant no.2 and his presence shall also be required for proper calculation of amount due and to be recovered from both defendants jointly and severally. In support of her case, she has relied upon a judgment titled „Vidur Impex & Traders Pvt. Ltd. & Ors. Vs. Tosh Apartments Pvt. Ltd.‟ and Ors. (2012) 8 SCC384 In the original suit, besides the claim of other reliefs, plaintiff has claimed recovery of amount of Rs.2.50 Crore against both the defendants. From memo of parties, it is clear that defendant no.2 is the son of defendant no.1. OA No.26/2016 in CS(OS) No.202/2016 Page 2 of 5 Disputed question of facts can only be decided by means of evidence. In view of the aforesaid facts on record and in the facts and circumstances, plaintiff needs to be given an opportunity to prove her case against defendant no.2. Defendant no.2 appears to be a necessary and proper party for just disposal of the case and judgment sought by defendant no.2 does not help his case and distinguishable on facts. Hence defendant no.2 cannot be deleted from the array of defendants. Accordingly, the captioned IA is dismissed and is accordingly disposed of.” 2. It is alleged by the learned counsel for defendant no.1 that he was a partner with the plaintiff’s late husband in a partnership firm namely M/s Drona Bricks and a bare reading of the entire plaint would reveal the plaintiff, primarily, has a grievance only against defendant no.1 viz the partner of M/s Drona Bricks. Further, he alleges the prayers sought are also substantially against defendant no.1, as an erstwhile partner of M/s Drona Bricks qua siphoning off the funds of the firm or in giving loan to his son - defendant No.2, and to such extent the plaintiff has already sought for the reliefs for rendition of accounts; injunction against subletting the partnership business; siphoning off the money of the firm; furnishing details of the accounts of the firm; the dissolution of the partnership firm and recovery etc. It is alleged by the defendant No.1 that his son - defendant No.2 is settled in Australia since 2002 and has nothing to do either with the partnership business M/S Drona Bricks or with its funds. OA No.26/2016 in CS(OS) No.202/2016 Page 3 of 5 3. Though the submission made appear plausible but it is pertinent to note the defendants no.1 and 2 have admitted in their pleading that defendant No.1 had given a loan of `2.5 lac to defendant No.2 from the funds of M/s Drona Bricks though allegedly it was repaid in the year 2009 itself. Admittedly no proof is filed of its repayment. Further the plaintiff in para 11 and para 17 of her plaint has alleged the defendant no.1 have been transferring funds illegally from the account of the firm to his son’s account in Australia and whenever the plaintiff insisted to inspect the accounts of the firm, her access was always denied, not only by defendant no.1 but also by bank authorities and ultimately the plaintiff had to move RTI to obtain the bank accounts of the partnership firm and then she came to know about more than 30 transactions in the range of `1 lac to `3 lac and other numerous transactions of lesser amounts having been debited/withdrawn by the defendants from time to time without furnishing any detail thereof to the plaintiff. There are also allegations to the effect the defendant no.1 has been transferring huge amounts of money belonging to the firm to Australia with the aid of his son, defendant no.2.
4. Thus a bare reading of the plaint may reveal the allegations being primarily against defendant no.1 and even certain prayers viz rendition of account, dissolution etc. may lead to such an inference but the allegations qua siphoning of money by defendant no.1 with the aid of his son - defendant no.2 coupled with their admission qua an amount of `2.25 lac being paid to defendant no.2 without any proof of its repayment cannot be ignored at this stage and need to be looked into further. Thus the view OA No.26/2016 in CS(OS) No.202/2016 Page 4 of 5 taken by the learned Joint Registrar wherein he notes the alleged loan transaction and unexplained withdrawals ranging from `1 lac to `3 lac and the defendant No.2 being an alleged ultimate beneficiary of transfer of such amounts coupled with no justifiable explanation by defendants of such withdrawals or of proof of repayment of loan cannot be ignored. Hence dehors the final result of this litigation against defendant No.2, the presence of defendant no.2 during the trial is essential to settle the controversy in this suit.
5. 6. The appeal thus is dismissed. No order to cost. CS(OS) 202/2014, IA No.7237/2017 7. List before the learned Joint Registrar on 28.11.2017, the date already fixed. YOGESH KHANNA, J SEPTEMEBER25 2017 Renu/Rs OA No.26/2016 in CS(OS) No.202/2016 Page 5 of 5