- (1.) BOTH the appeals arise out of the impugned order dated 25.10.08 passed by the Addl. District Judge (Fast Track) No.3, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in the T.I. Application NO. 129/08, and, therefore were heard simultaneously and this common judgment is being passed.
(2.) THE SBCMA No. 5086/08 has been preferred by the appellants Devi Sahai Mittal and Ors., whereas the SBCMA 3056/10 has been preferred by the appellant Rajasthan Financial Corporation Ltd. The appellants of the SBCMA No. 5086/08 are the defendant Nos. 1,2 and 4, the respondent No.1 is the plaintiff, and the respondent Nos. 2 to 4 are the defendant Nos. 5,6 and 3 respectively in the suit. For the sake of convenience the parties shown in the SBCMA No. 5086/08 shall be referred as such hereinafter. The trial court vide the impugned order dated 25.10.08 had partly allowed the T.I. Application of the respondent No.1 -plaintiff and had restrained the appellants i.e. the defendants Nos. 1,2 and 4 from transferring, alienating or creating charge over the disputed premises and had restrained the respondent No.2 -defendant No.5 from taking any action in respect of the disputed plot and further restraining the respondent No.3 -defendant No.6, RFC from auctioning or selling the disputed plot pending the suit. The short facts giving rise to the present appeal are that the respondent No.1 -plaintiff has filed the suit seeking declaration, accounts, mesne profits in respect of the respondent No.4 -defendant No.3 partnership firm, and cancellation of lease deed in respect of the disputed plot, against the appellants and the respondent Nos. 2 to 4 alleging interalia that the plaintiff was the proprietor of the firm called M/s. S.R. Industries and that the RIICO had allotted him a plot bearing No. E -412 at Vishwakarma Industrial Area, Jaipur admeasuring 4000 sq. meters on 25.4.72. Since the plaintiff was working in the Bank and had no financial resources to set up the industry, he had entered into a partnership with the appellant No.1 -defendant No.1 Shri Devi Sahai Mittal by executing the partnership deed on 7.8.73 in the name of M/s. S.R. Industries i.e. the respondent No.4. The said partnership firm was also got registered under the Partnership Act with the Registrar of Firms. As per the said partnership deed, the defendant No.1 had 90% share and the plaintiff had 10% share in the profits of the firm. According to the respondent No.1 -plaintiff, the said partnership firm was continuing and was never dissolved, however the appellant No.1 had converted the said firm into a private limited company on 14.2.94, forging the document of dissolution and showing the appellant Nos. 1 and 2 to be the Directors of the said company. As per the further case of the plaintiff, the lease deed in respect of the plot in question was transferred in the name of the said company i.e. the appellant No.3 on 29.3.94 without cancelling the previous lease deed by the respondent No.2. Since the said company had taken the loan of Rs. 29.70 lacs from the RFC, mortgaging the said disputed property and since the said company did not pay the outstanding amount of loan, the RFC had taken over possession of the said premises on 4.6.97. According to the respondent No.1 -plaintiff, the respondent No.2 -RIICO on 26.8.96 had illegally cancelled the lease deed originally issued in his favour and hence the plaintiff had filed an appeal before the Competent Authority under RIICO Disposal of Property Rules, 1979, which appeal was dismissed on 6.9.97. The plaintiff had challenged the said order of Competent Authority by filing the Writ Petition being SBCWP No. 3562/97, which came to be dismissed on 2.6.05. The DB Special Appeal filed against the said order of the learned Single Judge, was also dismissed on 11.1.08 on the ground of availability of alternative remedy. The plaintiff therefore had filed the suit thereafter on 3.7.08 claiming various reliefs. The respondent No.1 -plaintiff had also filed an application under Order XXXIX Rule 1 and 2 of CPC seeking temporary injunction against the defendants in the suit.
(3.) THE said application was resisted by the appellants -defendants contending interalia that the plot in question was initially allotted by the RIICO to the proprietary firm of the plaintiff namely M/s. S.R. Industries, however since the plaintiff was working in the State Bank of Bikaner and Jaipur, he had entered into the partnership with the defendant No.1 for the purpose of development of the industry by executing the partnership deed. According to the appellants -defendants, as per Clause 9 of the partnership deed, the plot allotted by the RIICO had stood transferred to the newly constituted partnership firm. Thereafter, one more partner i.e. Smt. Usha Singh was taken up in the said firm on 1.6.76 and the partnership deed was accordingly amended. It was further contended that on 25.7.76, the plaintiff had withdrawn himself from the said partnership and Smt. Usha Singh had also thereafter given notice on 23.7.79 for dissolution of the firm, and she also retired from the firm. Thereafter, the defendant No.1 took the defendant No.2 as the partner in the said firm and the said firm had made a request to the RIICO to allot additional land adjacent to the plot in question. The RIICO therefore executed a fresh lease deed for the plot No. E -142 total admeasuring 5995 sq. meters on 29.9.93. According to the appellants -defendants, subsequently the said partnership firm was converted into a company i.e. defendant No.4 which was duly incorporated under the Companies Act, with the defendant Nos. 1 and 2 as the Directors, and the said change in the constitution of the firm was also intimated to the RIICO vide the letter dated 5.3.94. The RIICO accordingly issued amended lease deed in favour of the defendant No.4 Company. It was further contended by the appellants -defendants that the RFC had sanctioned the loan in favour of the said company to the tune of Rs. 29.70 lacs on 16.5.94, however due to financial constraints, the company could not repay the loan amount and, therefore the RFC had taken the possession over the premises on 4.6.97. The appellants subsequently having repaid about Rs. 29 lacs to the RFC, the possession was restored to the appellants -defendants on 20.5.08. According to the appellants -defendants, since the huge amount was still outstanding towards the dues to the RFC, the appellants were required to sell out part of the disputed plot.;