Usha Jalan Vs. Shakyntala Devi Pasari and ors. - Court Judgment

Excerpt:
[ a.n. venugopala gowda j.] these writ petitions are filed under articles 226 and 227 of constitution of india, praying to quash the impugned order dated 18.10.2010 passed on i.a.nos. 9 to 11 in o.s.no.2847/2006 on the file of the city civil judge, bangalore vide annexure - f. these petitions coming on for preliminary hearing in 'b' group this day, the court made the followingthe court : this is a second application in a suit for partition brought by a daughter of the person to whom the joint assets are traced. the plaintiff is a daughter of babulal pasari, deceased, and the first defendant and says that she is entitled to share in the assets and properties of babulal pasari along with her mother and her brothers and sister. on the plaintiffs earlier interlocutory application an order was made on august 19, 2009 directing the parties to maintain status quo as regards the bank account of the defendant nos.7 and 8 in respect of rs.50 lakh and rs.1.44 crore maintained with karur vysya bank, shakespeare sarani branch. status quo was also directed to be maintained in respect of the movable property and immovable properties of babulal pasari. a receiver was appointed to take symbolic possession of a locker with vijaya bank at its park street branch. such order of august 19, 2009 was carried in appeal which was disposed of on august 28, 2009 by modifying the order passed by the interlocutory court. thereafter, on another application, another order was made on september 9, 2009 by the appellate court. the plaintiff says that the order of status quo that was directed to be maintained on her earlier application, ga no.2220 of 2009, has run by efflux of time on september 22, 2009 and that the plaintiff has not applied for continuing the order due to inadvertence. the plaintiff says that the previous application is ready for hearing and affidavits have been filed. the immediate grievance in the present application is upon the plaintiffs discovery, on september 14, 2010, that a substantial amount has been removed from an account with state bank of india and parked with one plano vyapaar private limited. the plaintiff has averred at paragraphs 59 and 60 that the transfer of the money was made in april, 2010 and the plaintiffs enquiries have revealed that the defendant nos.2 to 5 are in control of plano vyapaar private limited. on behalf of the defendant nos.2, 3, 4, 7 and 8, it is submitted that it would be improper to make any ad interim order on this application since it is the same grievance which has been carried to court a second time. the opposing defendants say that the plaintiffs earlier application should be taken up and no ad interim order should be passed on this present application. it is also submitted that plano vyapaar private limited is not a party to the present suit. whether plano vyapaar private limited is or is not a party to this suit is not really relevant. the substance of the plaintiffs allegation is that money belonging to the estate has been diverted by the defendant nos.2 to 5 through an entity over which they are in control. the allegation is squarely leveled against the defendant nos.2 to 5. there is no immediate denial, even before an affidavit is used by the opposing defendants, that such money was removed. there is no justification that the appearing defendants offer as to the reason for the removal of the money. it is evident that subsequent to the previous round of orders made in the present suit, a significant amount of money has been taken out frogman account which should have been held to the credit of the estate and the money has been used by some members of the family to the exclusion of others. the charge today is unrequited. doubtless, the defendant nos.2 to 5 will have their own story to tell to justify the reasons for the money being removed in their affidavit; but as of now there is no explanation proffered. notwithstanding the limited scope of the previous orders passed, there is a case which has been made out by the plaintiff in support of the apprehension expressed that unless there is a specific order of injunction, at least in respect of further amounts that remain in the bank accounts belonging to the estate, there can be no certainty that the defendants would not remove further funds there from. there will be an order restraining the parties and each of them, whether by themselves or by their servants or agents or assigns or otherwise howsoever, from removing any money out of the bank accounts referred to at annexure-u to the petition. in other words, the fixed deposits for the respective sums of rs.35 lakh, rs.35 lakh and rs.6 lakh will be left untouched by the parties to the proceedings. the other prayer immediately sought in respect of the properties indicated at annexure-s to the affidavit, is not considered at this stage primarily on the ground that there does not appear to be any urgent need for making any order in respect of such properties which are either in the control of some of the defendants or are being enjoyed by companies controlled by the defendants. affidavits-in-opposition may be filed within two weeks after the reopening of court following the puja vacation; reply thereto, if any, within a week thereafter. the matter will appear as an adjourned motion in the monthly list of december, 2010. urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Judgment:
The Court : This is a second application in a suit for partition brought by a daughter of the person to whom the joint assets are traced. The plaintiff is a daughter of Babulal Pasari, deceased, and the first defendant and says that she is entitled to share in the assets and properties of Babulal Pasari along with her mother and her brothers and sister.

On the plaintiffs earlier interlocutory application an order was made on August 19, 2009 directing the parties to maintain status quo as regards the bank account of the defendant nos.7 and 8 in respect of Rs.50 lakh and Rs.1.44 crore maintained with Karur Vysya Bank, Shakespeare Sarani branch.

Status quo was also directed to be maintained in respect of the movable property and immovable properties of Babulal Pasari. A Receiver was appointed to take symbolic possession of a locker with Vijaya Bank at its Park Street branch. Such order of August 19, 2009 was carried in appeal which was disposed of on August 28, 2009 by modifying the order passed by the interlocutory court.

Thereafter, on another application, another order was made on September 9, 2009 by the Appellate Court. The plaintiff says that the order of status quo that was directed to be maintained on her earlier application, GA No.2220 of 2009, has run by efflux of time on September 22, 2009 and that the plaintiff has not applied for continuing the order due to inadvertence.

The plaintiff says that the previous application is ready for hearing and affidavits have been filed. The immediate grievance in the present application is upon the plaintiffs discovery, on September 14, 2010, that a substantial amount has been removed from an account with State Bank of India and parked with one Plano Vyapaar Private Limited.

The plaintiff has averred at paragraphs 59 and 60 that the transfer of the money was made in April, 2010 and the plaintiffs enquiries have revealed that the defendant nos.2 to 5 are in control of Plano Vyapaar Private Limited. On behalf of the defendant nos.2, 3, 4, 7 and 8, it is submitted that it would be improper to make any ad interim order on this application since it is the same grievance which has been carried to court a second time.

The opposing defendants say that the plaintiffs earlier application should be taken up and no ad interim order should be passed on this present application. It is also submitted that Plano Vyapaar Private Limited is not a party to the present suit. Whether Plano Vyapaar Private Limited is or is not a party to this suit is not really relevant.

The substance of the plaintiffs allegation is that money belonging to the estate has been diverted by the defendant nos.2 to 5 through an entity over which they are in control. The allegation is squarely leveled against the defendant nos.2 to 5.

There is no immediate denial, even before an affidavit is used by the opposing defendants, that such money was removed. There is no justification that the appearing defendants offer as to the reason for the removal of the money. It is evident that subsequent to the previous round of orders made in the present suit, a significant amount of money has been taken out frogman account which should have been held to the credit of the estate and the money has been used by some members of the family to the exclusion of others.

The charge today is unrequited. Doubtless, the defendant nos.2 to 5 will have their own story to tell to justify the reasons for the money being removed in their affidavit; but as of now there is no explanation proffered.

Notwithstanding the limited scope of the previous orders passed, there is a case which has been made out by the plaintiff in support of the apprehension expressed that unless there is a specific order of injunction, at least in respect of further amounts that remain in the bank accounts belonging to the estate, there can be no certainty that the defendants would not remove further funds there from.

There will be an order restraining the parties and each of them, whether by themselves or by their servants or agents or assigns or otherwise howsoever, from removing any money out of the bank accounts referred to at annexure-U to the petition.

In other words, the fixed deposits for the respective sums of Rs.35 lakh, Rs.35 lakh and Rs.6 lakh will be left untouched by the parties to the proceedings. The other prayer immediately sought in respect of the properties indicated at annexure-S to the affidavit, is not considered at this stage primarily on the ground that there does not appear to be any urgent need for making any order in respect of such properties which are either in the control of some of the defendants or are being enjoyed by companies controlled by the defendants.

Affidavits-in-opposition may be filed within two weeks after the reopening of Court following the puja vacation; reply thereto, if any, within a week thereafter. The matter will appear as an adjourned motion in the monthly list of December, 2010.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.