TaxTMI 
TaxTMI 
2009 (3) TMI 1072
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....dency of the partnership a suit came to be filed by the Partnership Firm against respondent No. 2 being Suit No. 6736/1999. On 18th August, 2000 the minutes of the decree on admission came to be passed in the suit upon consent of the parties and signed by the parties. Under those Consent Terms the total claim of Rs. 52.52 lakhs came to be admitted by respondent No. 2. A decree on admission came to be passed in terms of prayer (a) of that suit. That decreetal amount was to be paid partly in cash and partly under an agreement to sell the TDR, which was to be obtained in the name of respondent No. 2 by respondent No. 2 to the plaintiff in that suit being the Partnership Firm of the plaintiff and the defendant herein. Under the minutes of the order respondent No. 2 declared that it had applied to the MMC for issuance of their Development Rights Certificate (DRC) which was agreed to be transferred to the plaintiffs in that suit. The respondent No. 2 undertook not to sell or transfer or utilize the DRC/TDR until the decree on admission dated 14th September, 2000 was fully satisfied. The defendant signed the Consent Terms as partner of the Firm of the plaintiff and the defendant. The plai....
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.... Mumbai Samachar of the fact of the dissolution of the Firm of the plaintiff and the defendant. The public gazette dated 18th January, 2007 showed a public notice dated 11th January, 2007 published under serial No. 966 showing the fact of dissolution of the Partnership Firm of the plaintiff and the defendant dissolved from 11th January, 2007, the notice having been given by the plaintiff as the partner of the Firm. 9. The defendant appears to have sprung in action immediately upon receipt of the notice of the dissolution. He executed an agreement for sale of the TDR in favour of the respondent No. 1 on 19th January, 2007 within 2 days of the dissolution of the Firm This fact was brought to the notice of the" plaintiff on 21st February, 2007 in the interim application moved by the plaintiff in this suit, which came to be filed on 17th February, 2007 for dissolution and accounts. 10. On the same day i.e. 19th January, 2007 respondent No. 2 executed an agreement for transfer/utilisation of the FSI/TDR in favour of respondent No. 3, respondent No. 1 also entered into an agreement with the sister concern of respondent No. 3 for transfer of the TDR on 19th January, 2007. That Concern h....
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.... Court to use the amount for payment to the Creditors upon taking over all the liabilities of the Firm and paying the plaintiff, if anything remains payable upon accounts being taken. 14. The defendant and respondents 1 and 2 have not filed any affidavit in reply to this application. The respondent No. 3 has filed an initial affidavit on 20th March, 2007. He claims to have purchased the TDR for consideration from respondent No. 1. 15. The plaintiff has sought a direction against the defendant for depositing the consideration received under his agreement with respondent No. 1 expressly admitted by him in his affidavit in reply to the plaintiffs Notice of Motion No. 777/2007 dated 27th February, 2007 under/prayer (d) of this Chamber Summons. 16. There is certainly an express admission of the receipt of the amount. The affidavit of the defendant further shows the admission of the partnership between the parties as well as the dissolution of the Firm. The defendant has stated that he himself is equally keen in dissolving the Partnership Firm on account of total loss of faith between the partners. The receipt of the consideration is undertaken to be used for paying off the creditors ....
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....n the suit against his partner, the defendant. 17. Upon the transfer of the TDR in the manner aforesaid the plaintiff claims reliefs also against respondent No. 3, as the ultimate transferor. It has utilised the TDR. It has developed the suit property. The entire property is constructed. The application for relief against the respondent No. 3 is far too delayed, Mr. Majumdar, on behalf of the respondent No. 3, has drawn my attention to the judgment in the case of William Brunton Vs. John E.C. Brunton, AIR 1925 Madras 360 which was also a partnership action, but in which equitable reliefs were sought to avoid a contract on the ground of fraud. The principles regarding the application which was long delayed as held in that judgment are the consideration of the length of the delay, of the nature of the acts done during the intervals affecting rights of parties and the balance of justice or injustice. 18. Respondent No. 3 was specifically directed to file further affidavits to show the acts done by the respondent No. 3 under the TDR. In the first such further affidavit the respondent only stated that the entire TDR, which was sought to be utilised by the Firm under the Consent Decree....
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....ilisation. Considering the "nature of the acts done" as held in the case of William (supra) the entire constructed premises is required to be protected against the injunction sought by the plaintiff since no part of the construction which utilised the TDR of the Firm of the plaintiff and the defendant is free for an order of injunction. 22. Upon the aforesaid chronology of events it would have to be seen whether the plaintiff's action, followed upon dissolution of the Firm, the notice of which came to be given upon the DRC being issued by the MMC on 11th January, 2007, but later not pressed for 2 years could be so tainted with delay as to disentitle the plaintiff to any equitable relief. The relief sought for by the plaintiff is two fold: i). Against the defendant ii). Against respondent No. 3 The plaintiff has applied for deposit by the defendant of the admitted amount received as consideration under the TDR, which the Firm came to be entitled to under the Consent Decree dated 14th September, 2000. Soon after filing of the suit on 17th February, 2007 the plaintiff came to learn on 21st February, 2007 that the Firm's only asset being the TDR was sold by the defendant....
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....in Section 3(26) of the General Clauses Act, 1897 has been considered. The definition is inclusive and shows land, benefits arising out of land, things attached to the earth and permanently fastened to anything attached to the earth as immovable property. Considering the earlier decisions it was observed that the right to collect market dues and bazar dues were benefits and were held to be immovable properties accordingly. The further observation is that a lease of the market dues had to be under a registered instrument and that the lease of bazar dues would be lease of immovable property. Consequently it is held that an agreement for use of TDR could be specifically enforced. Since TDR is held to be immovable property, all the incidents of immovable properties would be attached to such an agreement. Two of the incidents of it being an immovable property would be registration of the agreement for transfer of the TDR under Section 17(1)(b) of the Registration Act and the lack of implied authority of a partner in dealing with or in transferring the TDR as an agent of the Firm during the course of the business of the Firm to bind the Firm under Section 19(2)(g) of the Partnership Act....
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....intiff has claimed the relief under prayer (d) as aforesaid against the defendant. The defendant is admittedly the plaintiffs partner under the suit Partnership Deed. The Partnership is admittedly dissolved. The defendant himself has accepted and wants dissolution of the Firm Consequently accounts of the Firm are required to be made. The defendant has been in management. He has not produced any accounts. He has stated that the Creditors of the Firm are to the tune of more than Rs. 50 lakhs. He has admitted receipt of Rs. 65,24,198/- on account of the TDR which the Firm acquired and thereafter sold. 29. The express admission of the defendant about the Partnership Firm, its dissolution and the account relating to the main, and only one, asset of the Partnership requires Judgment on Admission itself to be passed under the provisions of Order XII, Rule 6 of the Civil Procedure Code. Consequently at least the preliminary decree for dissolution of the suit Partnership Firm under the provisions of Order XX, Rule 15 of the Civil Procedure Code is forthwith required to be passed. The shares of the plaintiff as well as the defendants are required to be declared. They admittedly share 50% in....