TMI Blog2009 (3) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... restraining the Defendant as well as the Respondent s from creating 3rd party rights in respect of the Transfer of Development Rights (TDR) on the suit property, utilising and loading the TDR on any property and acting pursua nt to the agreement s entered into by and between the Defendant s and the Respondent s in respect of TDR and for an order against the Defendant to deposit monies received under the transaction relating to the TDR by him. HELD THAT:- In the case of Sikandar Vs. Bahadur [ 1905 (1) TMI 1 - ALLAHABAD HIGH COURT] considered in the case of Chheda Housing [ 2007 (2) TMI 664 - BOMBAY HIGH COURT] it has been held a lease of more than 1 year of a right to collect market dues upon a piece of land, being a benefit which arises out of the land would fall within the purview of Section 3 of the Registration Act, 1877 and must, therefore, be made by a registered instrument . The consequence of the TDR being an immovable property would be the requirement of registration upon its transfer. The TDR was issued in the name of the Respondent No.2 by the MMC. Even prior to its issue, the Respondent No.2 had claimed the TDR. The Decree on Admission obtained by the Firm of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r accounts kept in the normal course of the conduct of the Partnership business by him before the Commissioner for taking accounts. 1) The Defendant shall show all the documents relating to the Creditors of the Firm. 2)The Defendant shall give inspection and xerox copies of these document s to the Plaintiff. 3)The Commissioner for taking account s shall ascertain the genuine and bonafide Creditors, if any, of the Firm. 4)The Commissioner shall allow the parties to lead oral and documentary evidence as required and desired by each of them. 5)The Commissioner shall make his report of the account s of the Firm to the Court upon the evidence. 6)The Defendant shall deposit the amount admittedly received by him in Court within 4 weeks from today. The Prothonotory and Senior Master of this Court to invest the said amount in any Nationalised Bank intially for a period of 37 months. Chamber Summons is disposed of accordingly. Preliminary Decree is passed in the suit accordingly. Suit to be placed on board for final decree upon the Commissioner making his report. - R.S. DALVI, J. For the Appellant : Kevic Setalvad instructed by Vimla Co. For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the defendant herein entered into an MOU. The MOU is not happily worded. However, a reading of the MOU shows that respondent No. 2 as the party of the first part had got processed the file with regard to the TDR which was to be transferred to the Partnership Firm cleared from the legal department of the MMC. It was agreed that the Partnership Firm would process the file at its own cost and be entitled to use the TDR in the manner it liked on the plot of land for which it was issued or to sell or dispose it off on consideration. The parties agreed to get satisfaction of the decree recorded. 5. On 26th August, 2003 the Prothonotary and Senior Master of this Court recorded that the decree was fully satisfied out of Court without execution. 6. The defendant No. 2 signed the MOD as a partner of the Firm. The plaintiff had no knowledge of the execution of the said MOD at that time. 7. It is the plaintiff's case that on 16th May, 2005 he learnt about the TDR issued in the name of respondent No. 2 by the MMC from a public notice issued in the Free Press Journal by the MMC. On 24th August, 2005 the plaintiff issued a notice upon the defendant stating that he had come to kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent Decree transferred it to respondent No. 3 on the same day. The respondent No. 3 claims to have purchased the TDR from, respondent No. 1 through its sister Concern. 12. The defendant has filed an affidavit in reply to the interim application taken out by the plaintiff upon filing the suit being Notice of Motion No. 777/2007. In that affidavit he has mentioned about various creditors of the Firm to the extent of Rs. 50 lakhs who were not paid off constraining him to dispose off the TDR The reason for the constraint mentioned in the affidavit is the non-cooperative attitude of the plaintiff sought to be shown by two omissions - in not operating the Bank account of the Firm in Cosmos Co-operative Bank Ltd. since December, 2006 by refusing to sign any cheque and in not even filing income tax returns since 2002. It is seen that the defendant has sold and disposed off the TDR, which admittedly belonged to the Firm, singly as the partner of the Firm without notice to the plaintiff, without his consent and immediately upon the receipt of the notice of the dissolution. Hence, despite the plaintiffs non-co-operative attitude the defendant did nothing from 2002 to December, 2006, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff admittedly has not taken part in the business of the Firm Even accepting the non-co-operative attitude of the plaintiff in signing the cheques or non-production of income tax returns, there is no case of the plaintiff having known or partaken in any affairs of the Firm The notice given by the plaintiff on 24th August, 2005 to the defendant shows that he was also not aware of the Consent Decree passed in favour of the Firm and against respondent No. 2. The Consent Decree which came to be passed in the year 2000 appears to have been brought to the knowledge of the plaintiff only in August, 2005. Who are the creditors of the Firm is not stated. A large amount from the only property of the Firm which was an assigned debt has been realised by the defendant. That amount must be secured for the plaintiff subject of course, to the claim of genuine creditors of the firm. The amount of Rs. 65,24,198/- would, therefore, require to be deposited in this Court to the credit of the account in this suit with the Prothonotary and senior Master of this Court under the provisions of Order XXXIX, Rule 10 of the Civil Procedure Code relied upon by Mr. Setalvad. It is seen from the affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the yet further affidavit for the directions to show the 3rd party rights, if any, created. That affidavit shows a registered Development Agreement between Panchayati Co-op. Hsg. Society Ltd. and the respondent No. 3 dated 31st October, 2005' registered on 23rd January, 2006, in which the respondent was to give alternate accommodation to 4 occupants on the suit plot before development of the plot. The respondent No. 3 was to grant permanent accommodation of the carpet area of the premises specifically recited in clauses 6 and 7 of the said Development Agreement. The respondent No. 3 itself was to retain the balance area of the ground and mezzanine floor in the said construction. Out of an area of 4145.42 sq. ft. of the ground floor, 2767 sq. ft. were to be given as and by way of permanent alternate accommodation to the 4 occupants of that plot. Out of an area of 2084.55 sq. ft of the mezzanine floor 1376 sq.ft. was to be given to those 4 occupants by way of permanent alternate, accommodation. Therefore, the balance area that the respondent was to retain was 1378 sq. ft. on the ground floor and 708 sq.ft. on the mezzanine floor. 20. The respondent No. 3 has entered int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issued on 18th May, 2007. The delay on the part of the plaintiff is in not insisting upon the interim reliefs in this Chamber Summons after it came to be filed. The first affidavit to the Chamber Summons by respondent No. 3 has been filed on 20th March, 2007. Thereafter until this Chamber Summons appeared on the board of this Court in March, 2009, the reliefs prayed for have not been pressed. The construction has been completed by the respondent No. 3. The entire property has been mortgaged to Dena Bank save and except 9 shops on the ground floor 8 of these shops are to be given by way of permanent accommodation to the occupants. The respondent No. 3 as one of the occupants itself was to retain the balance area of the shops i.e., the area aforesaid. That area is not mortgaged to the Bank That area is not shown to have been sold by respondent No. 3 to any 3rd party However, that area has been constructed from the FSI available on the plot itself and not under the TDR. It may be mentioned that the plaintiff has not sought to avoid the TDR The plaintiff has accepted the TDR as an asset of the Firm which could have been transferred by the Firm The plaintiff only claims his share in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, it would certainly be an immovable property itself as held in the case of Chheda Housing (supra). 25. In the case of Sikandar vs. Bahadur, 1905 (27) ILR 462 considered, in the case of Chheda Housing (supra) it has been held a lease of more than 1 year of a right to collect market dues upon a piece of land, being a benefit which arises out of the land would fall within the purview of section 3 of the Registration Act, 1877 and must, therefore, be made by a registered instrument. 26. Hence, the consequence of the TDR being an immovable property would be the requirement of registration upon its transfer. The TDR was issue in the name of the respondent No. 2 by the MMC. Even prior to its issue, the respondent No. 2 had claimed the TDR. The Decree on Admission obtained by the Firm of the plaintiff and the defendant against respondent No. 2 in Suit No. 6736/1999 was to be satisfied partly by payment of money and party by the agreement to sell the TDR to the Partnership Firm. The TDR is transferred to the defendant as a partner of the Partnership Firm or to the Firm itself by respondent No. 2 under the Consent Decree for consideration. The Consent Decree is not registered. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, be taken. 31. The suit is referred to the Commissioner for taking accounts under Order XXVI, Rule 2 of the Civil Procedure Code with directions under Order XXVI, Rules 11 and 12 of the Civil Procedure Code. The defendant who has alone been in management of the suit Partnership Firm shall produce the bank accounts as well as any other accounts kept in the normal course of the conduct of the Partnership business by him before the Commissioner for taking accounts. 32. The defendant shall show all the documents relating to the Creditors of the Firm. 33. The defendant shall give inspection and xerox copies of these documents to the plaintiff. 34. The Commissioner for taking accounts shall ascertain the genuine and bona fide Creditors, if any, of the Firm. 35. The Commissioner shall allow the parties to lead oral and documentary evidence as required and desired by each of them. 36. The Commissioner shall make his report of the accounts of the Firm to the Court upon the evidence. 37. The defendant shall deposit the amount of Rs. 65,24,198/- admittedly received by him in Court within 4 weeks from today. The Prothonotary and Senior Master of this Court to invest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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