Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 35/22 in Comm. Suit No. 454/2020. 1 Order.
MHCC010001962022
Presented on : 01-12-2021
Registered on : 05-01-2022
Decided on : 27-04-2022
Duration : 0 years, 4 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 35 OF 2022
IN
COMMERCIAL SUIT NO. 454 OF 2020
Nitin Purshottamdas Shah ...Plaintiff
Versus
Dwarkadas Tulsiani and one ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 27th APRIL, 2022.
Smt. Rutuja Mahadik, Advocate for the plaintiff.
Smt. Yashashvi Munde, Advocate for proposed defendant no.1A.
ORDER
1. This chamber summons is taken out by the plaintiff for
bringing legal representative of deceased defendant no.1 Dwarkadas on
record. Perused chamber summons and affidavit in reply. Heard
learned counsel Smt. Rutuja Mahadik for the plaintiff and learned
counsel Smt. Yashashvi Munde for proposed defendant no.1A.
2. On perusal of contents in chamber summons and affidavit
in reply, it is admitted position that defendant no.1 died on 02/05/2020
-- 1 of 3 --
Ch/s No. 35/22 in Comm. Suit No. 454/2020. 2 Order.
and proposed defendant no.1A Rajesh is his son. This chamber
summons is being opposed on the ground that proposed defendant no.1
did not inherit anything from his father's property and no Will was
executed in his favour. It is his contention that assets of defendant no.1
were distributed during his lifetime. In short, proposed defendant
no.1A has denied liability as a legal heir of deceased defendant no.1.
Learned counsel Yashashvi Munde has relied upon citation of Pannalal
and Another V/s. Mst. Naraini, through L.R.s AIR 1952 SC 170 in
which it is observed that the duty being religious or moral, it ceases to
exist if the debt is tainted with immorality or vice. In the case in hand,
defendant no.1 being sole proprietor of M/s. Dwarkadas Chandumal
had borrowed loan amount of Rs.5,00,000/ from the plaintiff for
business purposes. Therefore, it will be premature to conclude that
defendant no.1 had taken loan for immoral purposes. In short,
proposed defendant no.1A namely Rajesh is necessary party to the suit.
Cause of action survives even after death of defendant no.1 for
continuing the suit proceeding against his legal representatives.
Defendant no.1 died on 02/05/2020 and present chamber summons is
moved on 20/12/2021. Though there is delay in moving the present
chamber summons, it is justified in view of directions of Hon'ble
Supreme Court in Suo Moto (Civil) Writ Petition No. 3/2020 extending
the limitation. For all these reasons, I pass the following order :
ORDER
1. Chamber Summons No. 35/2022 is made absolute in terms
of prayer clause (a).
2. The plaintiff is directed to carry out amendment in the
plaint as per schedule of amendment within 15 days from
the date of this order.
-- 2 of 3 --
Ch/s No. 35/22 in Comm. Suit No. 454/2020. 3 Order.
3. Proceeding of Ch/s No. 35/2022 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 27/04/2022. Mumbai.
1. Dictated online on : 27/04/2022.
2. Signed on : 27/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27/04/2022. 5.12 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 27/04/2022.
Judgment/Order signed by P.O. on 27/04/2022.
Judgment/Order uploaded on 27/04/2022.
-- 3 of 3 --