Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ord. In Ch/s no 210 of 2019, in Suit no.77761998
MHCC010011092019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.210 OF 2019
IN
SUIT NO.7776 OF 1998
IN
(HIGH COURT SUIT NO. 1123 OF 1998)
Patel Integrated Logistics Limited. ..Plaintiff.
V/s
Ahmed Oomerbhoy . ..Defendant.
And
Nadeem Majid Ommerbhoy . Applicant.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 18th DAY OF NOVEMBER, 2022
: Appearances:
The learned Adv. Mr Ambekar for the applicant.
The learned Adv. Mr. Shivang Tiwari for the plaintiff.
The learned Adv. Mr. Jayesh Gawande for defendants.
ORAL ORDER
The present Chamber Summons is taken out by the
applicant being legal heir/legal representative of deceased Mr. Majid
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Ommerbhoy being one of the partner of defendant ‘Ahmed
Oomerbhoy’.
2. In short, it is contention of the applicant that, Majid
Ommerbhoy has filed Suit no.4913/2000 before the Hon'ble High
Court for dissolution and accounts of the firm ‘M/s. Ahmed
Oomerbhoy’. It is contended that, the plaintiff being fully aware of
Suit no.4913/2000 intentionally chosen not to join legal heirs of late
Majid Oomerbhoy as party in the present suit.
3. It is further contended that, the Hon'ble Bombay High
Court has appointed Court Receiver, High Court, Bombay in respect
of the defendant in the above suit. However, Court Receiver failed to
defend the various suits including present suit properly. The plaintiff
is acting in collusion and in connivance with other partners in order
to make illegal gain for themselves. Inspite of direction of the Hon'ble
High Court vide order dated 21.09.2011, Court Receiver failed to
protect and safeguard the interest of the suit firm.
4. It is further contended that, the applicant along with his
mother and sister are entitled to an aggregate 45% share in the suit
firm. As Court Receiver is not diligent in looking after the affairs of
the defendant, hence it is necessary to join the applicant as party
defendant to the suit in order to enable him to protect/ to defend
himself and his personal interest and his share in the defendant firm.
Hence Chamber Summons.
5. The plaintiff by filing reply on affidavit strongly opposed
Chamber Summons. It is contended that Chamber Summons is filed
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at belated stage and thus is not maintainable and liable to be
dismissed. It is contended that proceeding in the suit has been
completed long back. The plaintiff denied all the adverse allegations
and prayed to dismiss Chamber Summons.
6. The defendant/Court Receiver, High Court, Bombay also
strongly opposed Chamber Summons by filing reply pertaining to
allegations leveled against him. So far as joining of the applicant to
the suit, defendant has no objection.
7. Heard learned advocate for the applicant, the plaintiff
and the defendant at length. Perused the record.
8. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the applicant being necessary
and proper party needs to be joined as
party defendant to the suit?
Yes.
2. What order ? As per final order.
REASONS
AS TO POINT NO.1:
9. It is to be seen that, father of the applicant Nadeem
Majid Oomerbhoy has filed Suit No.4913/2000 before the Hon'ble
High Court for dissolution and accounts of the defendant firm ‘M/s.
Ahmed Oomerbhoy’. The Hon'ble High Court was pleased to appoint
Court Receiver, High Court, Bombay in respect of the defendant firm.
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10. It is contention of the applicant that, the plaintiff being
aware of the Suit No.4913/2000 and death of Majid Oomerbhoy, who
has expired on 11th May 2010, intentionally did not join the applicant
as a party to the suit. The plaintiff along with other partners tried to
make illegal gain for themselves. The applicant prayed to join him as
legal heir of deceased Majid Oomerbhoy, who is one of the partner of
the defendant firm.
11. For ready reference, I reproduce Order 30 Rule 4 Sub
Rule (1) and (2) of the Code of Civil Procedure which read as
follows:
“(1) Notwithstanding anything contained in section 45 of the Indian
Contract Act, 1872 (9 of 1872), where two or more persons may sue or
to be sued in the name of a firm under foregoing provisions and any of
such persons dies, whether before the institution or during the pendency
of any suit, it shall not be necessary to join the legal representative of
the deceased as a party to the suit.
(2) Nothing in subrule (1) shall limit or otherwise affect any right
which the legal representative of the deceased may have
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.”
12. In view of sub rule (2) when legal representative of
deceased partner applied to be made a party to the suit he needs to
be joined as party to the suit to enforce any claim against survivor or
survivors. Even otherwise the applicant being legal representative of
deceased partner of the defendant firm is necessary and proper party
so as to avoid further complications at the time of taking accounts
and to enforce the decree. It is further to be seen that the applicant
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came to be joined as party in Summary Suit No.6824/2004,
7129/2004 and 7090/004. To support same, the applicant has placed
copy of orders on record. Thus considering the facts and
circumstances of the case as well as in view of provisions of Order 30
Rule 4 of CPC, I am of the view that the applicant being necessary
party needs to be joined as a party defendant to the suit. Hence my
answer to Point No.1 is in affirmative.
AS TO POINT NO.2:
13. In view of above discussion, I pass following order.
ORDER
1. Chamber Summons No.210/2019 stands allowed and
made absolute in terms of prayer clause(a).
2. Plaintiff is directed to join the applicant as defendant
No.2 to the suit.
3. Plaintiff to carry out necessary amendment within 14
days and supply amended copy of plaint and documents to the
applicant/ defendant no.2.
4. Chamber Summons stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 18.11.2022 (C.R. No.1)
Dictated on : 18.11.2022
Transcribed on : 19.11.2022
checked and Signed on : 19.11.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 19.11.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 5.30 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 18.11.2022
JUDGMENT/ORDER signed by P.O. on 19.11.2022
JUDGEMENT/ORDER uploaded on 19.11.2022
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