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2015 (9) TMI 1606 - HC - Benami PropertyWhether the Suit as filed is barred under the provisions of the Benami Transactions Act? - Whether the Suit is barred by limitation? - Section 9-A of the Code of Civil Procedure, 1908 - Sabita's refusal to give evidence in the matter. Held that: - the entirety of her case, from start to finish, demands evidence. She says that after the 1995-96 Family Arrangement, the family business continued to be closely-held, and run as a joint family quasi-partnership. This needs evidence. She says that "no member of the Gopal Raheja Group ever asserted any rights independently as shareholder and/or Director but always acted in a fiduciary capacity and in trust for each other". That needs evidence. Sabita had the opportunity to establish this fiduciary relationship, even outside the exclusions of the Benami Act, and relying on the second part of Section 4(3)(b), i.e., "other fiduciary capacity". She might have shown, say, that while assets were held in one name, the benefits or income from those assets were shared in a 23 of 27 manner inconsistent with a sole or personal holding. Sabita repeatedly refers to 'intentions', 'understandings', 'practices' and more. Of this, there is no evidence whatever. All that I have is a surmise piled on conjecture wrapped up in speculation. - the first preliminary issue must be answered in the affirmative - The suit is barred under the provisions of the Benami Transactions (Prohibition) Act, 1988. Time limitation - Held that: - It is a mixed question of fact and law. No facts are proved as required by Section 9A of the CPC - In any case, what appears to be material is that if according to the Plaintiff in 2005-2006 there was an agreement or understanding by which certain properties were transferred to Sandeep Raheja, and if this was in derogation of the 1995-1996 Family Arrangement, then that must surely be a starting point of limitation of this suit - it is not possible to hold in favour of the Plaintiff in the absence of necessary evidence. A mere pleading is insufficient - Without evidence, a segregation of these claims is impossible. The second issue is also answered in the affirmative. The suit is barred by limitation. Suit dismissed.
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