TaxTMI 
TaxTMI 
2026 (10) TMI 732
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.... of the present application. e) Alternatively leave be granted to the applicants to file written statement and delay in filing the same be condoned. f) Ad-interim orders in terms of prayers above; g) Such further or other order or orders be passed and/or directions be given as this Hon'ble Court may deem fit and proper. The case of the applicants may be summed up thus; 1. The present suit has been filed not only against the applicant Nos. 1 and 2 but also against the applicants/defendants Nos-3 to 34 which have been alleged to be the A.K. Group of companies pursuant to leave granted by Order dated 27th April 2017. 2. Pursuant to the leave granted by the aforesaid order dated 27th April 2017 the plaintiff amended the instant suit by claiming the following reliefs:- a) A decree declaring that all the properties and assets including the defendant Nos. 3 to 34 and those mentioned in the schedule being annexure 'E' are the properties and assets belonging to the plaintiff's husband; aa) Decree for partition of the assets and property mentioned in the schedule being Annexure 'E' hereof among the plaintiff and the defendant nos. 35 to 3....
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....ither a director nor a shareholder of the defendant Nos. 3 to 34. The plaintiff at best is entitled to 1/4th of the shareholding of Late Arun Kumar Bhutoria. The other three co-sharers having 1/4th share in the estate of Arun Bhutoria and the defendant Nos. 35 to 37 who are the mother and two sons of Late Arun Kumar Bhutoria. 4. The plaint also does not disclose any cause of action against either the petitioners herein or the defendant Nos. 3 to 34. The plaint case against the petitioners and the defendant No. 3 to 34 is also barred by law, especially the Benami Transaction (Prohibition) Act 1988 and the Companies Act 2013. 5. The defendant no-1 and 2 are directors of several of the companies i.e. defendant Nos. 3 to 34. The defendant Nos. 1 and 2 and their immediate family members are also shareholders of several of those companies. The said defendants are vitally interested in the management and affairs of the defendant Nos. 3 to 34. However the defendants Nos. 3 to 34 have several other directors as well as shareholders particulars whereof are in public domain as in the records of the Ministry of Corporate Affairs which can be accessed by any person so interested. There we....
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....o frivolous and vexatious and has been filed in abuse of process of law. 12. In any event the plaintiff does not and cannot have any right, title or interest in any of the assets or properties of the defendant no. 3 to 34. 13. No cause of action is disclosed in the plaint against the defendant Nos. 1 and 2. 14. If at all the plaint filed in the present suit is held to be maintainable leave may be granted to the defendant Nos. 1 and 2 to file their written statement and delay in filing the written statement be condonded. The said application was contested by the plaintiff by filing Affidavit in opposition to the Affidavit filed by Defendant No-1, on behalf of Defendant no-3, as well as Affidavit in opposition to the Affidavit filed by Defendant No-2 on behalf of himself and defendant no. 4, 5, 6, 10, 13, 24, 28, 30, 31, and 34. in GA NO-11 of 2025. In the affidavit in opposition to the affidavit of defendant no-1 the plaintiff has contended that the Defendant no-1 has filed this affidavit not only in his personal capacity but also on behalf of a company being Defendant No. 3. It is further contended as follows:- i) The instant suit being C.S. No. 280 of 2012 was....
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.... including Defendant No. 3 (AK Computech Pvt. Ltd.) at this late stage of the current application is a tactical plot designed solely to delay the proceedings and to further erode the assets of the Defendant companies after having wrongfully taken complete control of the same taking advantage of the sudden demise of the plaintiff's husband. x) Counsel appearing for the Defendant No-3 initially appeared without proper authorization. When this was challenged in Court, they sought leave to Produce 'de facto' authorizations. xi) The Bar under Section 430 of the Companies Act 2013 does not apply as this is a Civil Suit for partition of family assets, which cannot be adjudicated by the NCLT. xii) The prohibition of Benami Property Transactions Act 1988, is also inapplicable as the properties were created and held for the benefit of family members from the karta's funds. Now with regard to the affidavit filed by Defendant no-2 it is contended by the plaintiff in her affidavit in opposition that the defendant no-2 has filed this affidavit not only in his personal capacity but also on behalf of a large group of companies being Defendant Nos. 4, 5, 6, 10, 13, 24,....
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....r of the undivided interest of a co-parcener. iv) Persons entitled to provision for their maintenance and marriage i.e. widows, daughters sister and such like and distinguished heirs; v) Any person entitled to maintenance from the family. The plaintiff may also implead any other coparcener or any person interested in the family such as a mortgagee or a lessee. Such a person may himself apply and be made a party.' Learned Advocate also submits that it is not the plaint case that any of the defendant Nos. 1 to 34 are the heirs in intestacy of or have any share in the estate of Late Arun Kumar Bhutoria. Thus they are neither necessary nor proper parties. The present application is under Order 1 Rule 10(2) read with Order 7 Rule 11 of the Code of Civil Procedure for striking off the names of the defendants Nos. 1 to 34 and dismissing the suit against these defendants. It is submitted by Learned Advocate that defendant nos. 1 and 2 have been impleaded as ostensible owners of shares in the defendant nos. 3 to 34. Therefore if the defendant Nos. 1 and 2 are necessary or proper parties by virtue of them being shareholders of the defendant Nos. 3 to 34, then....
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.... entertaining an action which is maintainable only before NCLT or the NCLAT as the case may be. Learned Advocate also submits that a perusal of the plaint as amended would reveal that the properties of the companies were sought to be dealt with and partitioned and the plaintiff if at all would be required to initiate appropriate proceedings before the NCLT and if such step is taken in future by the plaintiff the answering defendant reserves its rights to defend the same appropriately. The following decisions are relied by the Learned Advocate. Narendra Kumar Berlia and ors VS Om Prakash Bertia and ors. Reported in 2011 SCC Online Cal-923. Pesticide and Brewaries Ltd. VS Narendra Kumar Berlia. 2011 SCC Online Cal-1570. Bacha F. Gurdar VS Commissioner of Income Tax. Reported in 1954 (2) SCC.563. Amrat Lal Bhanji Laxman VS Kusum Probhudas Laxman and ors. Suit No.-3461 of 2009. Mr. Vijay Nahar. VS Mr. Anil Nahar and Anr. C.S. No-86 of 2004. It is submitted that the petition filed by Defendant Nos. 1 and 2 being supported by the Defendant No. 3 that the plaint be rejected for the aforesaid reasoning. Learned Advocate for the Defen....
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....missioner of Income Tax Bombay. Reported in (1954) 2 SCC. P 563. Shyamlal Purohit and anr. VS Jagannath Roy and Anr. (1970) 40 Comp. cases 138. T. Arivandandam. VS T.V. Satyapal and Anr. (1977) 4 SCC. 467. Learned Advocate for the Plaintiff submits that the instant suit was filed by the plaintiff in the year 2012. The said suit was initially a suit for declaration and perpetual injunction. However when an appeal was preferred by the plaintiff against an interlocutory order, the Division Bench of this Hon'ble Court by an order dated 28th April 2014, inter alia held that the pendency of the appeal could not preclude the appellant from filing a suit for partition as well as praying for appropriate reliefs in the suit. Thereafter the plaintiff filed an application seeking amendment of the plaint before the interlocutory Court and by an order dated 27th April 2017, it was observed that the plaintiff can make necessary and suitable amendment to the existing pleading in order to convert the suit to a partition suit when a reading of the plaint pre-eminantly chose the ascertainment of the right of the plaintiff in relation to various properties treating the said proper....
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.... Kumar Bhutoria. Therefore reliefs claimed by the plaintiffs in the instant suit cannot be a bar because of Section 430 of the Companies Act 2013. It is also submitted that the bar under the provisions of the prohibition of Benami Property Transaction Act 1988 does not apply in the instant case as the properties were held for the benefits, of the members of the family and the consideration of the property which has been purchased and or created comes out from the funds of the Karta. Learned Advocate distinguishes the decisions as relied upon by the Defendant no. 1, 2 and 3 as follows:- a) 2015. 8 SCC-331-It is submitted that the judgment holds that the rejection of the plaint is a drastic step and what requires to be considered under Order VII Rule 11 CPC is only the averments made in the plaint which are to be read as a whole. Therefore this decision goes against the defendant nos. 1 and 2 as the amended plaint discloses a cause of action against all the defendants. b) In the matter of Bhaskar Gupta VS The Calcutta Club Limited and ors it is submitted that the judgment is distinguishable for the sole reason that the same has decided the fate of an interlocu....
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....lly different and the plaintiff's contention is that the companies were formed out of the funds of Late Arun Kumar Bhutoria since deceased therefore the said decision is factually distinguishable. j) In the matter of Baimahakore VS Bai Mangola and ors it is submitted that the point involved relating to a property held in trust based on a credit entry in books of accounts. k) (2012) 8 SCC-P-706-With regard to this decision it is submitted that while scrutinizing the plaint's averments, it is the duty of the court to ascertain the materials for cause of action. This judgment does not support the case of the defendant as from plain reading of plaint it will be clear that the plaint discloses cause of action. Similarly it is submitted by the Learned Advocate for the plaintiff that the decisions relied upon by Learned Advocate for the defendant no. 4,5,6,10,13,24,28,30,31, and 34 namely 2025 SCC Online-Cal-8307, 2026 SCC Online Cal-7121, (2019) 18 SCC.569, 1990 (2) SCC. 42, (1970) 40 Comp. Case-138, (1977) 4 SCC-467 are not applicable to the facts of the case. Learned Advocate for the defendant no-36 submits that by filing this application after a period of 13 ye....
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....o the plaintiff. e) Where it is not filed in duplicate. f) Where the plaintiff fails to comply with the provision of rule 9. In the instant case much argument was raised on the ground that the suit is barred under law in view of the provisions contained in Section 430 of the companies Act 2013, the said section is quoted hereinbelow. S. 430-Civil Court not to have jurisdiction-No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by as under this Act or any other law for the time being in force by the Tribunal or the Appellate Tribunal. Upon perusal of the relief prayed for in the plaint it will appear that the suit is filed for declaration and for partition of the assets and property mentioned in the schedule being Annexure 'E'. Thus from the nature of suit it is clear that Civil Courts have power to adjudicate the same as empowered under Section 9 of the Code of Civil Procedure:- As per Section 9 of the Code of Civil Procedure the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of c....
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.... '49. Although it is pleaded by the appellant that benami is a new ground argued for the first time in the appeal, since the court can suo moto reject the plaint under Order VII Rule 11 of the Code and/or return a plaint under Order VII Rule 10 thereof, and the argument of benami has been made on the basis of the averments in the plaint itself and no new facts are required to be decided, we are of the opinion that the said ground can be validly urged by the defendants/respondents even for the first time in the present appeal. 50. The argument of the plaintiffs/appellants that since the latest amendments to the Benami Act came in 2016, ten years subsequent to the institution of the suit, the same cannot be applied, is not acceptable, since as on the date when the application under Order VII Rule 11 of the Code was filed, the 2016Amendment had already come into force. The relevant juncture for deciding the applicability of the bar incorporated in the Benami Act by the 2016 Amendment is the date when the decree is passed. Hence, the said defence of the plaintiffs is not tenable in the eye of law. 51. Even considering from such angle, Section 2(9)(A)(b) of the Benami ....