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2019 (3) TMI 336 - BOMBAY HIGH COURTDetermination of ownership of property - suit barred by virtue of Section 4 of the Benami Transactions (Prohibition) Act, 1988 - operation, control, administration and management as well as the business affairs of proprietary concern opened in the name of the 1st defendant - fiduciary relationship between the plaintiff and defendant - Held that:- The plaint when read as a whole, certainly averrs that there was a fiduciary relationship between the plaintiff and the 1st defendant. This is quite clear when one reads the plaint as a whole and more particularly Paragraphs 5, 7, 9,10, 11 and 12 of the plaint. We are not examining whether there is any merit in the factual averments made in the plaint with reference to the fiduciary relationship that the plaintiff had with the 1st defendant. That will, of course, be subject to the plaintiff proving such a relationship by adducing the necessary evidence. If he is unable to prove those facts, his suit would then fail as it would clearly be hit by Section 4 of The Benami Transactions (Prohibition) Act, 1988. Fiduciary relationship - Held that:- It is not as if under no circumstances there can be no fiduciary relationship between an employer and an employee. Whether on the facts pleaded, such a relationship is proved is a question that will be decided at the trial after both the parties are allowed to lead their evidence in support of their respective cases - the word “fiduciary” has not been specifically used in the plaint. However, that makes a little difference. When one reads the plaint as a whole, it is clear that such a relationship is pleaded though the specific word “fiduciary” has not been used - the learned Judge could not have rejected the plaint under Order VII Rule 11 (d) of the CPC. The impugned order dated 8th February, 2017 is hereby set aside - the suit is restored back to the file of the Trial Court to be decided on merits and in accordance with law - appeal allowed.
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