Decided on March 03,2005



Pratibha Upasani, - (1.) THIS Miscellaneous Appeal is filed by the appellant-third party M/s. Shivmoni & Co., being aggrieved by the order dated 2.12.2002, passed by the learned Presiding Officer of DRT, Bangalore, in I.A. 6 in OA No. 702/1996. By the impugned order, the learned Presiding Officer rejected the application made by the appellant in which they prayed that the order of attachment before judgment passed on 15.4.1993 in LA. No. 2/1993, be forthwith vacated and the attachment be lifted with respect to the said property. According to the third party, the said property belonged to them and it was a property of that Partnership Firm, M/s. Shivmoni Co., and that it did not belong to the 2nd defendant as contended by the applicant Bank. It was the contention of the appellants that the said property, though it was obtained in the name of defendant No. 2, who was one of the partners of the said firm, way back in the year 1965, it was in fact the property of the partnership firm inasmuch as it was purchased with the money of the partnership firm and, therefore, it could not be treated as the property of defendant No. 2. THIS was the basis on which it was prayed that the attachment be lifted. The applicant Bank filed its objections opposing the said application. It was contended that the property in question did belong to defendant No. 2 in his personal capacity and the third party M/s. Shivmoni & Co. has been put up to avoid the attachment and the consequent sale of the property.
(2.) The learned Presiding Officer heard both the sides, considered the material placed before him and then passed the impugned order, coming to the conclusion that the property in question did not belong to Shivmoni & Co., that it was the property of defendant No. 2 only and, therefore, attachment could not be raised. Being aggrieved, the present appeal is filed. I have heard Mr. R. Balachander, Advocate for the appellant and Mr. Urval N. Ramanand, Advocate for the respondent Bank Nos. 1 and 2. I have also gone through the proceedings. In order to prove its claim, the third party/appellants have mainly relied upon Exhibit D-7, which is the Xerox copy of the title deed in respect of the property in favour of defendant No. 2, which has been attached by the Bank. In that title deed, which is only a Xerox copy, defendant No. 2 Moni Bose is described as a partner of the partnership of M/s. Shivmoni & Co. It was for the reason that the third party/present appellants were placing heavy reliance upon this. It is contended by them that this gave an ample indication of the intention of all persons including that of defendant No. 2, that the said property came to be acquired only on behalf of the partnership firm. However, if one goes through this title deed, it will be revealed that absolutely there is no indication in the recital of the document pertaining to the origination of the consideration passed on under the said deed to the vendor. In other words, in Ex. D-7 it is not stated anywhere as to the source of the consideration or that the amount was raised from the assets of the firm. There is nothing to show that the title deed is a true copy of the original title deeds. As observed earlier, it is merely a Xerox copy without any certification whatsoever. Under these circumstances, it was incumbent upon the appellants to produce the original title deeds, but that has not been done by them. Another document on which reliance is placed by the appellants is the balance sheet of the year 1996 of M/s. Shivmoni & Co. It is submitted that the balance sheet has made a reference to the building showing that the purchase value of the said building was Rs. 97,200/- which comprised Rs. 97,000/-, the price of the property paid under Ex. D-7 plus Rs. 6,300/- by way of stamp duty and corporation duty plus 1% registration charges. It was sought to correlate Ex. D-7 property to the entry in the balance sheet of Shivmoni & Co. for the year 1966. In short, attempt is made to show that the property in question was purchased by the partnership firm Shivmoni & Co., with partnership funds. There are also Certificates from Chartered Accountants, which apparently show that the property belonged to the firm. However, these certificates are dated 8.12.1995 and 11.12.1995, and they are issued after the death of defendant No. 1 i.e. Moni Bose, in whose name the property stood as per the documents of the title and as per the document Ex. A-6 which is of the year 2000.
(3.) IT appears from the entire proceedings that the third party partnership came to be reconstituted from time-to-time. In the first instance, the partnership was constituted in the year 1953, and the name of the partners were Shivnarain M. Mohatta and Moni Bose. In the year 1959, an agreement came to be executed between Shivnarain Mohatta and Moni Bose to bring about some kind of change in the partnership. Thereafter, it was reconstituted on 27.10.1990, on the death of Shivnarain Mohatta invoking the continuation clause in the earlier deed. From then onwards, wife of Shivnarain Mohatta, by name Bhagwati Devi and defendant No. 2 Moni Bose constituted the partnership firm which remained in force till 11.8.1995, which was the date of death of defendant No. 2 Moni Bose. The partnership firm Shivmoni & Co., thus, underwent change with the death of Moni Bose, and a new partnership came to be constituted with effect from 12.8.1995. IT is pertinent to note that the reconstituted partnership Shivmoni & Co., though it retained the same name, did not have any member from the family of late Moni Bose i.e. defendant No. 2. IT will be useful to reproduce below the clear recital in this regard which is as follows: "AND WHEREAS soon upon the demise of said Sri Moni Bose, as per requirements of reconstituted partnership deed, formal requests were made by the FIRST PARTY, surviving Partner, namely, Smt. Bhagwati Devi Mohatta, to the legal heirs of late Moni Bose inviting them to join as partners and be parties to the said business and whereupon the aforesaid legal heirs of late Moni Bose declined to join as partners but conveyed their decision of having the Accounts of late Moni Bose settled by making payment.";

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