2024 (6) TMI 716 - HC - Companies Law

Partition suit plaint rejection dismissed under Order VII Rule 11 CPC for joint family properties

USHA PASARI Versus SATYA NARAYAN PASARI AND ORS

Calcutta HC dismissed an application under Order VII Rule 11 CPC seeking rejection of plaint in a partition suit. The suit concerned joint family ... Prayer for rejection of plaint - absence of joint family nucleus - declaration of rights - HELD THAT:- The suit is instituted and the principal averment in the plaint is existence of joint family properties. Joint family properties, sought to be partitioned, include immovable properties mentioned in Schedule ‘B’ of the plaint, as well as movable properties and companies registered under the Companies’ Act 2013. Whether the companies can be subject matter of partition is a questionable issue. But there are immovable properties too. It is argued that the plaint failed to disclose genesis of the joint family fund or any particulars on it. Whether the properties were purchased out of joint family fund or not and the question of jointness of movable and immovable properties are question of fact to be established in trial. It is too early to say at this stage, that the suit does not disclose cause of action. Joint fund is averred in the plaint, as stated above; purchase of properties out of joint fund is also averred, which is sought to be partitioned. The question of existence of nucleus of fund is also a matter of fact to be established in evidence. But at this stage it cannot be said that the suit does not disclose cause of action or barred by Companies’ Act 2013 or Benami Transaction Prohibition Act, 1988. A conclusion at this stage that the suit is barred under the laws, as mentioned above, would be inappropriate. The suit is one for partition. The National Company Law Tribunal has no authority to consider partition suit of immovable properties. This Court is of opinion that the instant application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 is not tenable and stands dismissed. Issues involved: Application for rejection of plaint u/s Order 7 Rule 11 CPC on grounds of absence of joint family nucleus, membership in defendant companies, Companies Act 2013 bar, and Benami Transaction Prohibition Act 1988.Summary:The suit involved a declaration of rights, partition by metes and bounds, and other prayers by the Plaintiff, who claimed joint family properties and businesses formed by Late Jaichand Lal Pasari for the Pasari family. Defendant No. 9 sought rejection of the plaint under Order 7 Rule 11 CPC, citing lack of coparcenary, absence of Plaintiff's membership in defendant companies, Companies Act 2013 bar, and Benami Transaction Prohibition Act 1988.The Plaintiff, in the Affidavit-in-Opposition, argued that the plaint's contentions were sacrosanct, disclosing a cause of action, and refuted the Defendant's claims. The Defendant contended that the suit lacked disclosure of joint family or nucleus, failed to prove membership in defendant companies, and was barred by Companies Act 2013. The Plaintiff's counsel argued that the suit was based on joint family corpus, within civil court jurisdiction, and not seeking remedies against the companies.The Court noted the existence of joint family properties in the plaint, including immovable properties and companies under Companies Act 2013, raising questions on the partition of companies. It held that the suit's cause of action, joint fund existence, and properties' jointness were factual matters for trial, dismissing the application under Order 7 Rule 11 CPC as premature. The Court scheduled further hearings for pending applications.In conclusion, the Court found the application under Order 7 Rule 11 CPC untenable and dismissed it, emphasizing the need for evidence to establish factual aspects before applying relevant legal principles.