HARDAYAN GARODIA Vs. GANGADHAR PERIWAL
HIGH COURT OF CALCUTTA
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P.C.Mallick, J. -
(1.) The plaintiffs seek to challenge in this suit the validity of an attachment and sale of a share in three tea gardens and the export quota rights therein.
(2.) The plaintiffs are five members of the Garodia family hereinafter for convenience referred to as Sarodias. They along with the defendant Gangadhar Perival and Nath-mull Pertwal constituted a partnership known as Messrs. Garodia Periwal Tea Co. [hereinafter for brevity referred to as the 'Tea Company'.) The defendant Gangadhar Periwal and Nathmull Periwal father of defendant Mahendra Kumar Periwal had another business of their own carried on in co-partnership under the name and style of Messrs. Gangadhar Nathmull. The firm of Gangadhar Nathmull became very involved and many of the creditors instituted suits and obtained decrees against the said firm of Messrs. Gangadhar Nathmull. Three such creditors are: 1. Hanuman Box Gothia, 2. Gouri Shankar Mal, and 3. Udaichand Hazarimal defendants Nos. 4, 5, and 6 in this suit.
(3.) It is pleaded in the plaint that the Tea Co., was the owner of three tea gardens and of export quota right therein for the year 1953/54. Ten annas share in three tea gardens known as Nurbong Tea Estate, Mulootar Tea Estate and Sivitar Tea Estate was attached along with quota rights therein. The share in the quota right was sold in execution of decrees obtained by the three decree-holders named before. This attachment and sale is pleaded to be unlawful and the allegations are that this attachment and sale was brought about fraudulently by the decree-holder defendants in collusion and conspiracy with the defendant Gangadhar Periwal. The particulars of fraud, collusion and conspiracy are set out in paragraph 8 of the plaint. The fraud alleged consists in not impleading the Garodias in the proceedings in which the sale took place and in suppressing from the court the fact that Messrs. Gangadhar Nathmull is an absolutely independent concern having no connection with the said Tea Co. The Periwals under the deed of partnership of the Tea Co. were entitled to ten annas share, the remaining six annas share belonged to the Garodias. The ten annas share in the tea quota rights was sold for Rs. 60,000/- approximately. It is contended that this attachment and sale is wrongful. In any event it is claimed that the Garodias are six annas owner of the export quota rights sold and are entitled to get back if not the whole of the sale proceeds amounting to Rs. 60,000/- at least to six annas share therein amounting to Rs. 22,500/-. The reliefs claimed are inter alia as follows:
(a) Declaration that the said orders for attachment of the said tea gardens are void, invalid, inoperative in law and not binding on the plaintiffs; (b) Removal of attachment of the said tea gardens; (c) Injunction restraining the defendants Nos. 4, 5 and 6 from proceeding in execution of the decrees obtained in suits Nos. 1162 of 1952, 1194 of 1952 and 1196 of 1952 against the said tea gardens; (d) Declaration that the said orders for attachment and sale of -/10/- annas share of the said tea quotas are void, invalid, inoperative in law and not binding on the plaintiffs; (e) Declaration that the attachment and sale of -/10/- annas share of the said tea quotas is not binding on the plaintiffs; Alternatively, a declaration that the plaintiffs were and are the owners of 6/16th portion of -/10/- share of the said tea quotas and/or the sale proceeds thereof and that the attachment and sale of the said portion is wrongful and not binding on the plaintiffs; (I) Payment to the said Tea Co. the said sum of Rs. 60,000/-; alternatively, a decree for Rs. 22,500/;;
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