TMI Blog2019 (3) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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. - Appeal No. 308 of 2017 Notice of Motion(L) No. 511 of 2017 - - - Dated:- 3-1-2019 - MR NARESH H. PATIL, C.J. AND MR B.P. COLABAWALLA, J. For The Appellant : Sharan Jagtiani For The Respondent : S.C. Gaikwad JUDGMENT B.P. Colabawalla, J. - Admit. By consent of parties taken up for heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0400610001516; e. If this Hon'ble Court comes to the conclusion that the suit flat cannot be transferred in favour of the plaintiff due to any reason whatsoever; i. then this Hon'ble Court may please to direct the 1st defendant to repay the amount of ₹ 84,60,849/- which is the actual amount spent on the suit flat by the plaintiff from 2010 with the interest of 18% per annum; ii. That this Hon'ble Court be further pleased to direct the 1st defendant to pay such sum of money as may be paid by the plaintiff to the 3rd defendant towards settlement of Loan Account No. 10400610001516; iii. In the event of default, to attach the said Flat and sell the same to recover the amount of ₹ 84,60,849/- together with such sum of money as may be paid by the Plaintiff to the 3rd defendant towards settlement of Loan Account No. 10400610001516; along with 9% per annum interest or any such rate as this Hon'ble Court deem fit and proper on the said amount; f. That this Hon'ble Court be pleased to pass an order of mandatory injunction as against; i. The 1st Defendant, her agents, servants or her family members or any other person claimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, in the year 2005, the plaintiff took the adjoining office being Flat No. 105 in the same building. 8. According to the plaintiff, his business started flourishing. Various Companies became his clients who approached him for collection of NPA, Investigation, Due Diligence, vehicle verifications, insurance claim investigations etc. It has thereafter been averred that in the year 2005-2006, some of the clients of the plaintiff required him to have a separate distinct firm other than the existing ones (namely, M/s. Balaji Financial Services and M/s. Pathfinders) for doing their exclusive work. It is in these circumstances and to have an exclusive operation for his exclusive clients, the plaintiff opened a new proprietary concern in the name and style of M/s. Guru Systems, in the name of the 1st defendant and who was then working with the plaintiff as a trustworthy employee. This was done in the year 2005-2006. 9. It is the case of the plaintiff that although the proprietary concern M/s. Guru Systems was opened in the name of the 1st defendant, the entire operation, control, administration and management as well as the business affairs of the said concern vested in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and E-5 which are put for sale in the adjoining building of the office. 11. The plaintiff therefore approached the owner, Mr. Anis Ebrahim Nizami of the Flat No.E-4 and E-5 of the building, namely, Dimple Apartment Co-operative Housing Society Limited ( i.e. 2nd Defendant) and other inspecting both the Flats, the Plaintiff expressed his desire to purchase suit flat for himself and his friend Mr. Vikas Salvi. The plaintiff called the seller of both the Flat No.E-4 and E-5 for discussion at his office and negotiated with him. The Suit Flat was agreed to be purchased by the Plaintiff for a lump sum consideration of ₹ 84,00,000/- and whereas the Flat No.E-4 was to be purchased by Mr. Vikas Salvi. The Plaintiff states that he paid a token amount of ₹ 3,50,000/-in cash to Mr. Anis Ebrahim Nizami on or about 24th May, 2010. At that time, the Plaintiff took a sum of ₹ 1,50,000/-by cheque from Mr. Vikas Salvi as a friendly loan which is reflected in the books of account of M/s. Guru Systems. Thereafter, M/s. Guru Systems issued a cheque No. 487050 of ₹ 1,50,000/- to the seller - Mr. Anis Ebrahim Nizami. In this fashion, an amount of ₹ 5,00,000/- was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s come up before us. 13. In this factual backdrop, Mr. Jagtiani, learned Counsel appearing on behalf of the appellant (original plaintiff) submitted that the learned Single Judge has gone completely wrong in reading and understanding the averments in the plaint. He submitted that in the plaint and read as a whole, it was clear that the plaintiff had clearly averred that the 1st defendant was holding the property in a fiduciary capacity and for the benefit of the plaintiff. This being the case, the prohibition as contemplated under Section 4 was not attracted. In this regard, Mr Jagtiani brought to our attention Section 4 (3)(b) of the Benami Transactions (Prohibition) Act, 1988. This, of course, was the provision prior to the Benami Transactions (Prohibition) Amendment Act, 2016. In the new Act, the exception is laid down under Section 2 (9) (A) (b) (ii) which is similar to Section 4 (3) (b) as it stood before the Amendment. He submitted that under Order VII Rule 11 of the CPC, the Court has to proceed on a demurer and. on the basis of the averments made in the plaint. At that stage, the Court is not called upon to look into the merits of the averments or whether the plaintiff i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 5, 7, 9,10, 11 and 12 of the plaint. It has been averred in the plaint that it was, because of the faith, trust and confidence that was reposed in the 1st defendant that a proprietary concern in the name of M/s. Guru Systems was started in her name though it was actually a proprietary concern of the plaintiff. It has been further averred that since the plaintiff felt the need of a residential accommodation in Mumbai for himself and for employees of M/s. Guru Systems, the plaintiff purchased the suit property It has also been averred that the suit property was purchased from the funds of M/s. Guru Systems and it was further agreed by the 1st defendant that she would transfer the business of M/s. Guru Systems and the suit property in the name of the plaintiff as and when called upon by the plaintiff without any condition or consideration. Looking to all these averments, we do not think that the plaintiff could have been non-suited at this stage. 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 provin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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