Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/sum No.104/2019
MHCC010006302019
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
CHAMBER SUMMONS NO. 104 OF 2019
IN
SUMMARY SUIT NO. 7487 OF 2001
Tifco Holdings Limited ...Plaintiffs
Versus
Kaushik J. Shah …Defendant
And
The Indian Hotels Co.Ltd. ...Applicant.
Appearance :
Ld adv. Ms. Joshi for applicant.
Ld.adv. Mr. Waghela for defendant.
CORAM : DR. S. D. TAWSHIKAR
C. R. NO. : 61
DATE : 17-10-2022
ORDER
By way of present chamber summons applicant seeks its
transposition as plaintiff and seeks consequent amendment.
2. Heard Ld. advocate Joshi for the applicant. She submits
that the original plaintiff i.e. Tifco Holdings Limited has undergone
amalgamation with the transferee company i.e. ‘The Indian Hotels Co.
Ltd.’, the applicant herein. She submits that the Hon’ble NCLT Mumbai
Bench by way of order dated 8-3-2018 in CSP No.1136/230-232/NCLT
MB Mah-2017, pleased to allow the scheme of amalgamation filed by
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the original plaintiff. By virtue of the said order of NCLT, in fact the
present applicant is substituted in place of original plaintiff. She further
submits that in view of amalgamation, the present applicant had
moved this chamber summons seeking amendment of the plaint and
thereby to introduce the transferee company as the plaintiff. She points
out the order passed by NCLT and prays to allow the Chamber
Summons and permission to carry out amendment as per the schedule
annexed with the Chamber Summons.
3. The Chamber summons is strongly objected by the
defendant by filing detailed reply. Ld advocate Mr. Waghela submits that
the Chamber summons, in fact, is not maintainable in the present form.
He submits that owing to the order passed by NCLT dtd. 08-03-2018,
suit is already abated long back in 2018 itself. He points out that the
present applicant is a third party and cannot seek amendment in the
plaint. He submits that third party ought to have opted proper course to
seek its impleadment as a plaintiff. He further points out that NCLT has
not allowed entire amalgamation scheme filed by the applicant.
However, NCLT has merely allowed transfer of liability including tax
and charges. He further submits that order is silent about the pending
suit and assets. In absence of a specific order of NCLT, it cannot be
presumed that the NCLT has even allowed transferee applicant to
continue the present suit.
4. Mr. Waghela, Ld advocate for the defendant further submits
that order of NCLT is in fact is a merge and not amalgamation and
therefore, the chamber summons needs to be dismissed.
5. After having heard both the sides it can be gathered that
owing to order of Hon’ble NCLT now the original plaintiff i.e. Tifco
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Holdings Limited is no more in existence. The Hon’ble NCLT has
allowed the scheme of amalgamation in terms of order more
particularly in para 7. It cannot be disputed that now the present
applicant being a transferee is in-charge of all the liability of the original
plaintiff. Though the order of NCLT is silent as to the pending
proceedings, it cannot be seen that the object of the said amalgamation
is to introduce the transferee at the place of the original plaintiff for all
legal purposes. Therefore, in my considered view despite the present
applicant being a transferee is entitled to seek impleadment in the
present suit in place of original plaintiff.
6. So far as submission as to delay in filing chamber summons
is concerned, I find it to be a technical objection. Considering the age of
the present suit i.e. pending from year 2001, such technical objections
cannot be entertained. So as to proceed with the matter, the
impleadment/replacement of the present applicant, in place of original
plaintiff is necessary. Unless present applicant is permitted to amend the
suit, the present suit cannot proceed. Thus the amendment sought is
necessary. It is needless to say that the procedure is hand made of
justice and the technicalities of law shall not block the road of justice.
Hence, the order.
ORDER
1. Chamber Summons No.104/2019 is hereby allowed in terms of
prayer clause (a) which reads as under.
“that the Applicant may be permitted to amend the
plaint and the proceedings of the above Suit as per
schedule annexed hereto.”
2. Applicant to carry out amendment within 14 days from the date
of this order and file copy of amended plaint on or before next
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date.
3. Chamber Summons No.104/2019 is disposed of accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Dated:17-10-2022 Court Room No.61
Dictated on : 17-10-2022
Transcribed on : 18-10-2022
Signed on : 19-10-2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19-10-2022 at.5.45p.m. Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
17-10-2022
JUDGMENT/ORDER signed by P. O. on 19-10-2022
JUDGMENT/ORDER uploaded on 19-10-2022
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