Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 55 OF 2019
(CNR NO.MH-CC01-000370-2019)
IN
L.C. SUIT NO. 959 OF 2010
M/s. Structknow Engineers ]
Pvt. Ltd. ].. Plaintiff.
V/s.
1. Ghatkopar Tribhuvan Co- ]
Operative Housing Society ]
Ltd. and others. ]..Defendants
Advocate Mr. Pradeep Dubey for the plaintiff.
Advocate Mrs. Chandramore for BMC/defendant No. 22.
Advocate Mr. Kudalkar for defendant Nos.23 and 24/State.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 5th SEPTEMBER 2022
ORAL ORDER
This Chamber Summons has been taken out by the plaintiff
for permission to amend the title of the plaint and Notice of Motion as
per the schedule annexed to the Chamber Summon.
2 Shri Ram Bhanushali, the Director of the plaintiff has filed
affidavit in support of Chamber Summons wherein stated that under a
“Certificate of Registration of Conversion” issued under Rule 32(1) of
LLP Rules 2009 by the Registrar of Companies, Mumbai. The name of
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the plaintiff i.e. “Structknow Engineers” Pvt. Ltd. was changed on
conversion as an LLP to “Structknow Engineers” w.e.f. 07.05.2018
being the date of incorporation under LLP No.AAM-5696. The
Certificate of Registration on Conversion issued by Registrar of
Companies and plaintiff, Company converted as an LLP under the LLP
Act. When the Private Limited Company was there and had filed the
suit, the Directors of the said Company were (1) Ram Bhanushali (2)
Smt. Neeta Ram Bhanushali and (3) Shivji Bhanushali and they are
Shareholder also. In the said conversion as an LLP the same Directors
are continued. There is no change of cause of action in the suit other
than substituting the name of the plaintiff.
3. It is further averred that the proposed amendment in terms
of Schedule annexed to the Chamber Summons will not cause any
prejudice to the defendants and necessary amendment required to be
carried out. If the amendment is refused, grave prejudice would be
caused to the plaintiff. There is no intention to delay the proceedings. If
there is any delay, application be condoned. Hence, the plaintiff prayed
for allowing the Chamber Summons.
4. The learned advocate for defendant Nos.1, 20 and 21 have
filed reply and strongly objected. It is submitted that the suit is based on
contractual obligation of the Development Agreement. It does not
provide by conversion of the party. The society of the defendants have
the Agreement with the original plaintiff which is legal entity
incorporated under the Companies Act. It cannot be substituted by any
LLP as contrary to the written contract. As per the Agreement the
constitution of the plaintiff cannot be changed. By converting the said
company into limited liability firm, the plaintiff making the future claim
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of the defendants infructuous. Prior to conversion, no notice was given
to the defendants. It appears that maximum liabilities of the LLP
partners is only of Rs.4,37,300/- only. There is danger to the property
of the defendants and in the event the further proceedings of claim will
increase, the plaintiffs will easily get away with maximum liabilities of
Rs.4,37,000/- only against their claim of over Rs.15 crores and more.
The conversion is
mala-fide and in any case the LLP Rules 2009 are not
applicable to them. By allowing third party in the present suit contrary
to the Development Agreement itself is illegal. The original plaintiffs
itself is not having any business whatsoever nature and the date of
incorporation of the LLP is on 07.05.2018 done with ulterior motive as
the Registrar of Companies would have declared the plaintiff as dead
company. On the above grounds, the Chamber Summons be rejected
with costs.
5. Heard the learned advocate for the plaintiff learned
advocates for the defendants. Perused documents on record.
6. It appears that the plaintiff wants to delete the name of the
plaintiff company. The learned advocate for the plaintiff has submitted
that the Certificate of Registration on Conversion issued by Registrar of
Companies to the plaintiff and plaintiff, Company converted as an LLP
under the LLP Act and the Directors of the said Company were (1) Ram
Bhanushali (2) Smt. Neeta Ram Bhanushali and (3) Shivji Bhanushali
and they were the share holders also. After conversion, the same
Directors are continued as partners with limited liability of the LLP. It
appears that there is no changed in the cause of action in the matter.
After conversion, the plaintiff company is ready to accept the liability of
the previous will not be disturbed. Therefore, there is no any harm
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caused to the defendants’ right over the suit property. By the
conversion, “Struck now Engineers LLP” is ready to take liability on
their shoulder though the defendants raised strong objection to change
the name of the plaintiff company and raise doubt about the liability of
LLP firm. But the plaintiff company executed Agreement with the
defendant. Thereafter, the plaintiff company is ready to take liability on
its shoulder. It will not harm or injury to the defendants. Though the
conversion took place on 07.05.2018, the defendants submitted that the
original plaintiff itself is not having any business whatsoever nature.
The date of incorporation is on 07.05.2019 done with ulterior motive
as the Registrar of the Companies would have declared the plaintiff as
dead company in new notification. But the new plaintiff company is
ready to join in the suit as the Directors are the same Directors.
Therefore, it will not any harm to the defendants.
7. The plaintiff company is ready to prove its claim on his own
legs. Therefore, if the plaintiff company wants to join and to take
liability on its shoulder, the question of ulterior motive does not arise.
The defendants have ample opportunity to file written statement.
Hence, it appears that it will better to allow the Chamber Summons in
the interest of justice. Therefore, amendment by way of this chamber
summons, it is just and necessary to be allowed, to avoid multiplicity of
proceedings and in the interest of justice. Thus, present Chamber
Summons is to be made absolute. With this, I proceed to pass the
following order:-.
ORDER
1. Chamber Summons No. 55 of 2019 is made
absolute.
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2 The Plaintiffs are hereby allowed to carry out
amendment in the suit plaint as per the schedule annexed
with the Chamber Summons till next date and the plaintiffs
are further directed to place on record amended copy of the
suit plaint.
3. The plaintiff is directed to furnish amended copies of
the plaint to the defendants.
4 Chamber Summons No.55 of 2019 stands disposed
of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 05/09/2022 Gr. Bombay.
Dictated on : 05/09/2022
Transcribed on : 07/09/2022
Signed on : 12/09/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/09/2022 At 3.50 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
05/09/2022
Judgment/Order signed by P.O. on 12/09/2022
Judgment/Order uploaded on 12/09/2022
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