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Petitioner: ABDUL AZIZ VS Respondent: ABDUL REHMAN dad anothers
Court Name: Sindh High Court Judge(s): Maqbool Baqar Title: ABDUL AZIZ vs ABDUL REHMAN dad anothers Case No.: Suit No,11 of 2008 and C.M.As. Nos.8142 of 2006 and 11084 of 2008 Date of Judgment:2012-08-16 Reported As: PLD 2013 Sindh 83 Result: Application Dismissed.
Judgment ORDER ' MAQBOOL BAQAR, J.---Through the instant order, propose to dispose of two applications filed by the plaintiff, being C.M.A. No,8142 of 2008 and C.M.A. No,11084 of 2008, one under Order I Rule 10, C.P.C. And the other under Order 6, Rule 17, C.P.C. 2. The brief facts of the plaintiff's case are that (Late) Haji Abdul Rahim, the deceased father of the plaintiff and the defendants, stared his transport business in the year 1949-1950 under the name and style, of "Taj Transport Company". Upon being successful in the business, (Late) Haji Abdul Rahim decided to expend and diversify the .Business by including plaintiff and defendant No,1 in the business as they were ready to join him and thus established another company under the name and style of Mehran Tanker Company. Both these companies, with the passage of time, expanded their business operations and the fleet of Lorries and tankeRs, The companies were run as family concerns; there was nothing in writing to specify the shares held by (Late) Haji Abdul Rahim, the defendant No,1 or the plaintiff. However, the business was run under the supervision and guidance of (Late) Haji Abdul Rahim. The plaintiff besides looking after the.Business also continued his studies. Haji Abdul Rahim died in the year 1984. However, the business and other assets left behind by (Late) Haji Abdul Rahim were not divided and distributed amongst the legal heiRs, The business was carried on as usual by the plaintiff and defendant No, I. In or about 1988, the plaintiff graduated from Medical College and in the meanwhile defendant No,2, the "younger brother of the plaintiff and the defendant No,1 also completed his higher education and as such it was decided to bring him on board as well, he being equal shareholder in the aforesaid two companies. Thereafter, the business of the aforesaid two companies was looked after by the plaintiff and the defendants. There was no formal division of assets and shares of the aforesaid two companies but there was
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an understanding between the three brothers that they are equal partners in the said two companies, each having 33.3% share in the said two companies. As per family tradition, the defendant No,1, being elder in the family, became the Managing Director and In-charge of the said two companies and business. With the growth of business, it was decided by the parties herein to establish more companies and thus the following new companies and business have been formed and established from time to time and were managed by all the three brothers having equal shareholding in that companies:-- (I) Delta Water Services (under the proprietorship of plaintiff)," having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi and its another office at HS-4, Truck Stand, Hawksbay Road, Karachi. (II) Delta Enterprises (under the proprietorship of plaintiff), having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi and its another office at HS-4, Truck Stand, Hawksbay Road, Karachi. (III) Wahab Enterprises (under the proprietorship of defendant No,2), having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi. (IV) Delta Water (under the name of an employee namely Idrees), having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi and its another office at HS-4, Truck Stand, Hawksbay Road, Karachi. (V) Rehman Motor Car Co, (Car Showroom) (under the proprietorship of defendant No,1), having its office at 150-0, Block-2. PECHS, Khalid Bin Walid Road, Karachi. (VI) Al-Rehman Trucking Station (Petrol Pump) (under the proprietorship of defendant No,1), having its office at National Highway, near Zulfiqarabad Oil Terminal (ZOT), Zulfiqarabad, Karachi. 3. All the three partners divided their work and responsibilities with respect to the aforesaid companies/business ventures. The plaintiff was responsible to diversify, expand and market new transport related products. It was his responsibility to manage and maintain the vehicles, tankers and workshop owned by the companies. The defendant No,1 was responsible for ovorall supervision of the activities of the companies as well as tax related and other business issues, whereas the defendant No,2 controlled all the finances of the companies and mandate of accounts were given to him. As the business activities of the companies streamed lined, the plaintiff went to USA to pursue his higher education between 1993-1996 with the mutual understanding that in his absence, the plaintiff would remain equal partner in the business of the companies and the family wealth. During this period, the defendant No,1, who was responsible for tax related matters, made changes in the tax returns by adding and removing the partners from time to time without the consent of the plaintiff in order to manage the tax issues? Sometime some family members were added as partners and sometime they were removed, including the plaintiff, his wife, defendant No, 1's wife and their mother. On his return to Pakistan in the year 1996, the plaintiff resumed his participation in the business activities of the aforesaid companies in the manner mentioned above. In, the year 1999-2000, the plaintiff was retired from the partnership of Mehran Tanker Company by defendant No,1 on the ground proposed by the defendants Nos.1 and 2 that it was the requirement of the time for tax purposes but assured the plaintiff that his duties participation and share in the company would remain as before and he would have the same authority and control in the said company, with the power to negotiate, sign contracts and expand the business and his designation as Executive Director of Mehran Tanker Company would also remain the same. The plaintiff agreed with the view of the defendant No,1 being his elder brother and continued to work as such and negotiated and signed several contracts on behalf of the company and also expanded the business of the company keeping the past usual practices. Since the beginning and till date the plaintiff has been involved and represented Mehran Tanker Company as Executive Director and Delta Water Services and Delta Enterprises as proprietor in dealing with various top rated
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companies and organizations as mentioned in the plaint. From the funds of the said companies, various properties were purchased from time to time with an understanding that each partner viz. Plaintiff and defendants will have equal shares. The 13 properties so purchased in the name of defendant No,1 have been mentioned and described in para 14 of the plaint. Out of the aforesaid properties, the defendants sold properties mentioned at Serial Nos.(i) to (iii), being Plot No, 150-S, Block-2, PECH, Karachi measuring 1000 Sq. Yards and approximately 60 tankers (Tank Lorries), but never gave any account for the same nor share of the plaintiff was paid to him from the sale proceeds of the aforesaid properties. Similarly, eight different properties in the name of defendant No,2, with the above arrangement, are also listed in the aforesaid para of the plaint, out of which the defendants sold properties mentioned at Sr. No,viii, being Plot No,10 (Commercial), Block-4, Clifton, Karachi measuring 544.44 Sq. Yards, but never gave any account for the same nor share of the plaintiff was paid to him from the sale proceeds of the aforesaid property. Description of various bank accounts maintained in respect of the Mehran Tanker Company, Delta Water Services, Delta Enterprises and Delta Water by defendant No,2 are also mentioned in the plaint. It is alleged that the parties formed Delta Water Services under the proprietorship of the plaintiff with the object to transport water to various organisations and to domestic consumeRs, However, the defendants mala fidely and secretly formed Delta Water in the name of their employee namely, Muhammad Idrees and got the business of Delta Water Services transferred to Delta Water without the knowledge of the plaintiff. This was done to syphon out the funds and caused wrongfully loss to the plaintiff. It is claimed, that the properties moveable and immovable were purchased from the common funds of the family business without giving importance to title of the assets on the understanding that all the three brothers are equal partners and with a view to keep unity in the family. Around May, 2007, the plaintiff noticed a change in the attitude of the defendants towards him. In the circumstances, the plaintiff requested the defendant to provide him with the information and details of the properties acquired and sold and also regarding financial affairs and the accounts of the companies but the defendant avoided to comply. The plaintiff has, however, gathered some information regarding the properties and banks accounts, as mentioned in the plaint. The plaintiff was taken aback to find out gross irregularities and mismanagement being committed by the defendant in running the affairs of the companies, misappropriation of funds and the change of names in various documents and tax returns to the disadvantage and loss of the plaintiff. It is further alleged that the defendants who are in collusion with each other and are in control of all the business, bank ccounts and assets of the companies, have refused to disclose to the plaintiff details of properties, business of companies, bank accounts and to render accounts and divide the properties in accordance with the shareholding viz. 33.3% each for plaintiff and defendants. 4. On the above facts, the plaintiff has prayed for a declaration that the plaintiff is the real owner of 33.3% share in the properties, bank accounts and afore-noted companies and that the defendants are only ostensible owners/Benamidars of the plaintiff with respect thereto; and for orders directing the defendants to execute necessary instrument of transfer of the above properties and assets to the extent of 33.3% share of the plaintiff; and directing the Nazir of this Court to divide the properties by metes and bounds if possible and if such division is not possible then to sell the same by holding a restrictive auction between the plaintiff and the defendants and to distribute the sale proceeds amongst the parties in accordance with their share accordingly. The plaintiff has also sought rendition of accounts with respect to the aforesaid properties and bank accounts and to permanently restrain the defendants from alienating, selling, disposing of and/or creating any third party interest in the afore-mentioned properties and companies and also to restrain them from withdrawing any money or issuing any cheque in favour of, any person from the bank accounts mentioned in the plaint.
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5. In his written statement, the defendant No,1 stated that Taj Transport Company was established by (Late) Haji Abdul Rahim in partnership with his brother (Late) Muhammad Ismail. The two brothers were equal partners in the business. The business was started in a rented office with very little investment. The nature of the business was that of commission agent and thus no investment in vehicles or real estate was required and it was at a very young age, the defendant No,1 started helping his father in his business. He dropped out of school in Class 9 and worked full time with his father. After the death of Muhammad Ismail in the year 1972, a new partnership deed was executed. The sons of (Late) Muhammad Ismail namely, Abdul Ghaffar and Abdul Sattar as well as defendant No,1 were brought in as partners with (Late) Haji Abdul Rahim on 6-5-1972. The defendant No,1 was made a partner in recognition of his hard work and services to the business as well as his business skills. On the death of Abdul Ghaffar, another son of (Late) Muhammad Ismail was brought in as a partner w,e,f, 19-6-1975. It is further stated that the plaintiff was born on 15-6- 1961. He was a full time student. After qualifying as a doctor in 1988, he worked as a full time House Officer in the Department of Internal Medicine, Civil Hospital, Karachi from May, 1988 to November, 1988. Later he worked as House Officer General/Vascular Surgery in Civil Hospital, Karachi from November, 1988 to May, 1989. From June, 1989 to September, 1991- he was the Resident Medical Officer in Taj Medical Hospital, Karachi. In 1991, he went to USA for further studies and remained there for all practical purposes as a student till 1996. The plaintiff, however, visited Pakistan several time and got married, in Pakistan in the year 1993. After marriage, he left for USA with his wife. The defendant No,1 denied that (Late) Haji Abdul Rahim included the plaintiff and defendant No,1 as partners and stated that the plaintiff was never a part of the business of (Late) Haji Abdul Rahim and that the plaintiff remained a student throughout the life of (Late) Haji Abdul Rahim and never had any role or participation in the business of the Taj Transport Company. The defendant No,1 also denied that the business was expanded or diversified by (Late) Haji Abdul Rahim. It is denied that (Late) Haji Abdul Rahim started Mehran Tanker Company. It is stated that the business was set up in the name and style of Mehran Tanker Company by defendant No,1 as a partnership between him, his wife Mst. Aisha, Mst. Shamim wife of Muhammad Idrees, Mst. Zainab wife of Abdul Jabbar and Mst. Rabia wife of Muhammad Hanif vide deed of partnership dated 1-12-1983 and that the defendant No,1 was the managing partner. The business of this firm was that of cartage contractors and hardly required any capital investment because it basically operated by finding transporters, who were prepared to carry oil and businessman, who were in need of vehicles to transport oil. The business made money through commission. This business too was started in rented premises. (Late) Haji Abdul Rahim had no share in the partnership and played no role in the operation and control of the business set up as a consequence of the deed of partnership dated 1- 12-1983 (Annexure "WS-1"). It is further averred that the state of health of (Late) Haji Abdul Rahim did not permit him to run or establish any business at that time, as he had been seriously ill since 1980. He was suffering from kidney failure and was on dialyses. It is stated that at the time of the death of Haji Abdul Rahim, Mehran Tanker Company was in a nascent state having been set up a few months ago. It is denied that the business of Taj Transport Company and that of Mehran Tanker Company was run as family conderns. It is claimed that the business were owned by their respective partners and were run as per arrangement between the partneRs, It is denied that the plaintiff besides continuing studies also looked after any of these businesses. It is stated that at the time of death of (Late) Haji Abdul Rahim, Taj Transport Company did not own any assets. This partnership was dissolved on the death of (Late) Haji Abdul Rahim through deed of dissolution of partnership dated 17-10-1984 (Annexure "WS-2"). However, it was agreed. That Abdul Sattar son of (Late) Muhammad Ismail shall carry on the business under the name and style of Taj Transport Company as its sole proprietor. The amounts outstanding in favour of Abdul Rehman and Abdul Jabbar, being Rs,63,345.25 and Rs,80,235.16 respectively, were paid to them in installments by
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Abdul Sattar, whereas the amount outstanding in favour of (Late) Haji Abdul Rahim being Rs,68,057.53 was paid to his legal heirs by Abdul Sattar. It is denied that after the death of (Late) Haji Abdul Rahim, the business was carried out by the plaintiff and defendant No,1. It is further averred that neither (Late) Haji Abdul. Rahim was a partner in the business of Mehran Tanker Company nor did he have any concern therewith. It is claimed that since the plaintiff wanted to proceed USA for his further studies and there was a need to show that he had means to support himself, it was in order to meet this requirement that the defendant No,2, being the elder brother of the plaintiff, agreed to let him appear as partner in Mehran Tanker Company. A new deed of partnership was, therefore, prepared on 1-7-1991 with defendant No,1, his wife, the plaintiff, the defendant No,2, Ms. Rubina daughter of Malik Mehar Khan and Mst. Nasiban Widow of (Late) Haji Abdul Rahim as partneRs, At the same time Mst. Shamim, Mst. Raba and Mst. Zainab retired from the partnership. It is stated that Ms. Rubina was a student of Dow Medical College and there was an understanding between her and the plaintiff. They later married. As they were planning to go to USA as husband and wife, Ms. Rubina was brought in as a partner to show that she was a person of means. It is further claimed that even after the deed of 1-7-1991 was executed, defendant No,1 continued to be the managing partner of the firm and remained responsible to deal with the business, as stipulated in the deed itself. In the year 1991, the plaintiff applied for USA visa and left for USA to take his qualifying examinations in order to work and study further. He continued to visit Pakistan and in 1993 after marrying with Ms. Rubina again let for USA from where he eventually returned in 1996., On 30-6-1998, the partnership was dissolved by a deed of 30-6-1998 (Annexure "WS-4"). All the partners received their respective shares. The plaintiff and his wife being benamies of defendant No,1 were never entitled to any money but received the same in their capacity as benamies for and on behalf of defendant No, 1 . As per the above deed of dissolution, defendant No,1 was allowed to continue the business in the name and style of Mehran Tanker Company either in partnership with others or as a proprietor, in his discretion. "Delta Water Services" was established by defendant No,1, as he was the real owner, and the plaintiff was only a benami. The money received by the plaintiff and his wife as benamies of this defendant on the dissolution of partnership, through Annexure WS-4, was invested in the business of Delta Water Services. The same is true for Delta Enterprises. It is stated that neither the plaintiff nor the defendant No,1 had any share or concern or interest in. Wahab Enterprises, which is a sole proprietorship of defendant No,2 and is operated by him and that defendant No,1 has no concern with Delta Water, which is owned and operated by Muhammad Idrees. It is denied that Muhammad ldrees is an employee of defendant No,l. It is claimed that Rehman Motor Car Co. Is sole proprietorship concern of defendant No,1, which was, set up and started by him in October, 2001 and that AIRehman Trucking Station is also a sole proprietorship concern set up by defendant No,1 in the year 2003. It is stated that the plaintiff, even after dissolution of the partnership may have signed a few documents of Mehran Tanker Company but that was only on account of the fact that defendant No,1 placed trust in him as he was his younger brother and also because the plaintiff was the benami for defendant No, 1. It is claimed that the properties in the name of defendant No,1 were purchased from his own money and no one else had any share in or claim upon the same and that the property listed at Serial No, (i) is not owned by defendant No,l. The properties at Serial No,(ii) were sold by him vide Annexures "WS-7" to "WS-9", the defendant No,1 also denied that he ever owned 60 tankers and stated that the property listed at Serial No,(iv) was sold by defendant No, 1 on 3-8-2005 vide Annexures "WS-10". The property listed at Serial No,(v) is not owned by defendant No,l. The property listed at Serial No, (ix) actually measuring 3 acres and 15 ghuntas and was sold on 24-5=2005 through Annexures "WS-11", whereas the properties listed at Serial No,(xii) and (xiii) are not owned by defendant No,1 and further that the properties which the defendant No,1 owned have been purchased by him from his money and the plaintiff has no title, interest or claim in the same. It is denied that the defendant
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No,1 transferred the business of Delta Water Services or was responsible for siphoning of any funds or caused any loss to the plaintiff. It is claimed that the dispute arose between the parties when the plaintiff attempted to sell the properties for which he was a benami of defendant No,1 and had, therefore, no right to sell the same. The details of 13 different properties in that regard are mentioned in the written statement. 6. The contents of the written statement, filed by defendant No,2 are also to the same effect as are the contents of the written statement of defendant No, 1. The defendant No,2 has also stated that though (Late) Haji Abdul Rahim admittedly expired in 1984, however, till date none of the remaining surviving legal- heirs including the plaintiff ever objected to the division and distribution of the assets of the deceased despite lapse of 23 yeaRs, As regards the properties owned by him, the defendant No,2 has denied that the same were purchased from the funds of the companies. It is stated that the deed of partnership .In respect of Mehran Tanker Company was dissolved a year after the return of the plaintiff to Pakistan vide deed of dissolution dated 30-6-1998 with the express consent of the plaintiff; who from that date till the filing of the instant suit had no complaint against the defendant No,2. 7. Through C.M.A. No,8142 of 2008, the plaintiff has sought impleadment of one Muhammad Idrees as defendant No,3, while through C.M.A. No,11084 of 2008, the plaintiff has sought permission to amend the plaint. 8. I have heard the learned counsel for the plaintiff, the defendant No, T, and the proposed defendant No,3, perused the record and the case-law cited by the counsel for the parties. 9. According to the plaintiff, the family business was started by the father of the parties in the year 1949-1950 under the name and style of Taj. Transport Company and by the time the plaintiff and defendant No,1 became able and ready to join, they were inducted into the business. 10. However, the defendant No,1 denies the plaintiff's 'claim in that regard. According to defendant No,1, Taj Transport Company was established by (Late) Haji Abdul Rahim in partnership with his brother (Late) Muhammad Ismail with equal share and that the business- was started in a rented office with a very little investment. The business being a commission agency, required, no investment in vehicles or real estate. According to him, he started helping his father's business at a very young age and dropped out of school in Class 9 and worked full time with his father. After the death of Muhammad Ismail in the year 1972, a new partnership deed was executed by induction of two sons of (Late) Muhammad Ismail namely, Abdul Ghaffar and Abdul Sattar in his place, as well as defendant No,1 with (Late) Haji Abdul Rahim on 6-51972. The defendant No,"1 has claimed that he was made a partner in recognition of his hard work and services to the business as well as his business skills. On the death of Abdul Ghaffar, another son of (Late) Muhammad Ismail was brought in as a partner w,e,f, 19-6-1975. This partnership was dissolved on the death .Of Haji Abdul Rahim through deed of dissolution of partnership dated 17-10-1984 (Annexure. "WS-2"). However, it was agreed that Abdul Sattar son of (Late) Muhammad Ismail shall carry on business under the name and style of Taj Transport Company, as its sole proprietor. The amounts outstanding in favour of Abdul Rehman and Abdul Jabbar of Rs,63,345.25 and Rs,80,235.16 respectively, were paid to them in installments by Abdul Sattar, whereas the amount outstanding in favour of (Late) Haji Abdul Rahim being Rs,68,057.53 was paid to his legal heirs by Abdul Sattar. It is further stated that the plaintiff was born on 15-6-1961. He was a full time student. After qualifying as a doctor in 1988, he worked as a doctor in various hospitals upto 1991, details of the plaintiff's employment with various hospitals from time to time throughout this period have been mentioned in the written statement. It is further alleged that in 1991 the plaintiff went to USA for further studies and continued to live there as a student till 1996. The plaintiff, however, visited Pakistan several times and got married in Pakistan in the year 1993 and that after marriage he left for USA with his wife. The defendant No,1 denies that (Late) Haji Abdul Rahim included the plaintiff and defendant No,1 as
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partners and states that the plaintiff was never a part of…
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