Final Order 1

Order Details: Chamber summons
Pdf Text: Summary Suit No.77/18 1 Chamber Summons No.475/2019
(CNR NO. MHCC010023592019)
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 475 OF 2019
IN
SUMMARY SUIT NO.77 OF 2018
Jayesh Jayantilal & Co. )
A registered partnership firm )
Having their office at 406, )
Popatlal Chamber, 4th X St.Clive Road, )
Danabander, Mumbai – 400 009. )… Plaintiff
V/s.
1. Monshed Tarpaulins )
A registered partnership firm )
having their office at Shop no.1, )
Paradise Plaza, karani Lane, )
Ghatkopar (West), Mumbai 400 086. )
2. Geeta Ramesh Rajgor )
Age 56, Occupation – Housewife, )
Mumbai, Indian Inhabitant, )
r/at – 2201 Wadhwa Solitaire, )
Adi Shankaracharya Marg, )
Powai (W), Mumbai – 400 072. )
3. Hitend Ramesh Rajgor )
Age 31 years, Occupation – Business )
Mumbai Indian inhabitant, )
r/at – 2201 Wadhwa Solitaire, )
Adi Shankaracharya marg, )
Powai (W), Mumbai – 400 072. )
4. Mrs. Sheetal Ramesh Rajgor )
Age 36 years, Occupation – Housewife, )
Mumbai Indian Inhabitant, )
r/at – 2201 Wadhwa Solitaire, )
Adi Shankaracharya Marg, Powai (W), )
Mumbai – 400 072. )..Defendants
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Summary Suit No.77/18 2 Chamber Summons No.475/2019
APPEARANCE:
Ld. Adv. Mr. Gangar for the plaintiff.
Ld. Adv. Mr. Nandesh Manek for the defendant.
CORAM : HER HONOUR ADHOC JUDGE
C.P. JAIN (C.R. NO.40)
DATED : 03rd JANUARY, 2020.
ORDER
This Chamber summons is moved by defendant Nos.2 to 4
praying to delete their names from plaint of Summary Suit No.77/2018.
2. In the affidavit filed along with the chamber summons,
plaintiff has averred that the plaintiff has filed the above suit for money
recovery against the defendant No.1 firm primarily and has impleaded
defendant Nos.2 to 4 thinking them to be partners of the defendant
No.1 firm. As per the order dated 22.12.2017 passed by the Hon'ble
High Court at Bombay in OOCJ Suit/1127/2015, they are no longer
associated in any way whatsoever with the defendant No.1 firm. The
plaintiff has wrongly impleaded them as parties to the present suit
thinking them to be the partners of the defendant No.1 firm. In lieu of
the Consent Terms a/w order dated 22.12.2017, the defendant Nos.2 to
4 have been absolved of all past, present and future liabilities of the
defendant No.1. They are seriously prejudiced and affected if they are
continued in suit. Therefore, they have prayed to allow chamber
summons and to delete their names from the present suit.
3. Plaintiff has resisted the chamber summons by filing his
reply. Plaintiff has specifically denied all the averments in the chamber
summons except those which are specifically admitted by plaintiff
company. According to plaintiff company, defendant Nos.2 to 4 have
not disclosed the true and correct facts and misled the court in order to
avoid payment to plaintiff. According to plaintiff, the loan was
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advanced to Ramesh Rajgor, father of defendant Nos.2 to 4 who was
proprietor of the Monshed Tarpauline and others. Thereafter, defendant
No.3 has converted the proprietory firm into partnership firm without
giving knowledge to plaintiff. Defendant No.3 has paid the amount
towards the outstanding amount payable to plaintiff. Though
defendants are relying upon the consent terms, they have not disclosed
that the terms contained in the consent terms are not complied by
defendant Nos.2 to 4. Therefore, the consent terms are not acted upon.
Defendant Nos.2 to 4 have violated the undertaking given to the
Hon'ble Court in which the consent terms are filed. The contempt
petition (L) bearing No.138/2018 is filed in Hon'ble Bombay High Court
by plaintiff in Suit No.1127/2015, which is pending till this date. The
transfer deed as agreed in the consent terms is not executed between
the parties. As the consent terms are not acted upon, defendants cannot
avoid their liability towards plaintiff. For aforesaid reasons, plaintiff
company has prayed for dismissal of chamber summons.
4. Heard both the learned advocates. I have gone through the
proceeding. On perusal of the plaint in Summary Suit No.77/2018, it is
appearing that plaintiff has filed the suit against defendants for recovery
of sum of Rs.23,38,833/ along with future interest from defendants. In
the averments in plaint, plaintiff has specifically come with the case that
one Mr. Ramesh Rajgore, (father of defendant Nos.2 to4) proprietor of
Monshed Tarpauline had approached plaintiff for getting finance to
expand his business. In September 2013, plaintiff had advanced sum of
Rs.17.00 Lakhs to deceased Ramesh Rajgor. Ramesh Rajgor inturn has
executed promissory note dated 12.09.2013 and 13.09.2013 in favour
of plaintiff. Towards repayment of the aforesaid amount ,it is further
case of plaintiff that defendant had issued cheque in the year 2013
2014.
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5. From aforesaid pleadings, what I want to highlight is that
plaintiff had advanced amount to one Mr. Ramesh Rajgor as proprietor
of Monshed Tarpauline. Had plaintiff advanced amount to partnership
firm, it would have been different aspect. It is case of plaintiff that the
amount was advanced to Ramesh Rajgor who was proprietor of
Monshed Tarpauline. Whether there is truth in the case of plaintiff or
not cannot be concluded at this stage. What can be concluded at this
stage is that the case of plaintiff is not of advancing loan/amount to
partnership firm.
6. The fact that defendant Nos.2 to 4 are the HLR's of Ramesh
Rajgor is factum not in dispute. Plaintiff has arrayed defendant Nos.2 to
4 being the HLR's of Ramesh Rajgor who was the proprietor of Monshed
Tarpauline i.e. defendant No.1.
7. In present chamber summons, defendant Nos.2 to 4 have
averred that defendant Nos.2 to 4 being partners of defendant No.1
partnership firm have arrived into settlement with the other partners of
defendant No.1 partnership firm in the suit of 1127/2015. In view of
the consent terms in suit No.1127/2015, defendant Nos.3 and 4 are
exonerated from the liability of the past, present and future debts of the
defendant No.1 firm. Defendant Nos.2 and 3 will not be liable for any
past, present and future debts and liability of the partnership firm is
specifically agreed in the consent terms. Therefore, they cannot be
proper parties in the suit and can be made liable for the liability of the
defendant No.1 firm. Therefore, they have pleaded for deleting their
names from the summary suit.
8. On perusal of the copy of suit No.1127/15 and the consent
terms filed in the suit, it is appearing that one Mr. Kantilal Shankarji
Rajgor, partner of M/s Monshed Tarpauline had filed suit against
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present defendant No.1 to 3 and other partners of the firm. The plaintiff
in suit No.1127/15 and the present defendant Nos.1 to 3 and other
partners in defendant No.1 firm had filed consent terms and the order
of disposal of the suit in the terms of consent terms is passed on
22.12.2017. In this consent terms, it is specifically agreed that present
defendant Nos.2 and 3 are exonerated from the liabilities of the
defendant No.1 firm, which include past, present and future liabilities
with effect from 22.12.2017. There are other recitals in this consent
terms with respect to executing gift deed etc. As is rightly argued by
learned advocate for plaintiff, it is appearing that the terms agreed in
between the parties is not acted upon as till date no gift deed or transfer
deed as is agreed in the consent terms is executed. Contempt petition
(L)No.138/2018 with respect to noncompliance of the terms agreed in
consent terms is pending before Hon'ble Bombay High Court.
9. If the consent terms are not acted upon, it is the business in
between the Kantilal Shankarji Rajgor and present defendant Nos.1 to
3. In present case, the plaintiff in suit No.1127/2015 is not party. In the
consent terms the entire liability of the Monshed Tarpauline,
partnership firm is taken by Kantilal Shankarji Rajgor and legal heirs of
Bhagwanji Shankarji Rajgor. Both Kantilal and Bhagwanji Shankarji
Rajgor are not parties in present suit. Present plaintiff has not come
with the case that he had any connection with respect to the
outstanding amount claimed in present suit with Kantilalal or
Bhagwanji Rajgor. As case of plaintiff is entirely on different footings
i.e. amount being advanced to Ramesh Rajgor the proprietor of
Monshed Tarpauline, deleting the names of defendant Nos.2 to 4 from
this suit will put plaintiff in trouble. As it is not case of plaintiff that he
had advanced the loan amount to partnership firm, the arguments of
learned advocate for defendant Nos.2 to 4 cannot be accepted. As
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discussed above, if it was case of plaintiff that he had advanced loan
amount to partnership firm then the situation would have been
different. As plaintiff is not concerned with Kantilal Rajgor or Bhawanji
Rajgor and the present claim of plaintiff being not concerning present
partnership firm, the arguments of learned advocate for defendants are
not convincing.
10. I do not dispute that there is order of court in Suit
No.1127/2015 and defendant Nos.2 and 3 are exonerated from the
past, present and future liability of defendant No.1 firm. As the case of
plaintiff is on different footings, and as the claim of plaintiff is not
concerning either partnership firm or Kantilal Rajgor or Bhagwanji
Rajgor, deleting defendant Nos.2 to 4 from this suit will be putting the
claim of plaintiff in jeopardy. As there is order of court in Suit
No.1127/2015 in favour of defendant Nos.2 to 4, at final hearing in this
suit, if plaintiff fails to prove his case, and defendant Nos.2 to 4 succeed
to show that consent terms are acted upon, defendant Nos. 2 to 4 will
not be made liable for the outstanding amount as is prayed in the suit.
As there is order of exoneration of liability of defendant Nos.2 and 3 by
order in suit No.1127/2015, defendants will not be put to any
irreparable loss if they are continued as parties in the suit. On the
contrary, if defendant Nos.2 to 4 are deleted and plaintiff succeeds in
proving his case and if Kantilal Rajgor and Bhagwanji Rajgor deny the
claim of plaintiff, plaintiff will be put to trouble for his no fault. It is not
in dispute that the plaintiff has advanced the loan in year 2013. The
consent terms order filed in suit bearing No.1127/2015 is dated
22.12.2017. It is further not in dispute that defendant Nos.2 to 4 have
not intimated plaintiff about this consent terms prior to filing this
chamber summons. In such scenario, it is not appearing that plaintiff is
at any fault in arraying defendant Nos.2 to 4 as parties in this suit.
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11. When it has come on record that the consent terms are not
acted upon and the Contempt petition (L) bearing No.138/2018 is
pending in Hon'ble High Court, accepting the arguments of learned
advocate for defendants and deleting the names of the defendant Nos.2
to 4 from this suit will not be appropriate. As discussed above, if
plaintiff fails on the footings upon which he has knocked the doors of
the court, and defendant Nos. 2 to 4 succeed in showing that consent
terms are acted upon, defendant Nos.2 to 4 will be
exonerated/discharged from the liability of defendant No.1 firm. As
discussed above, plaintiff will be put to trouble and irreparable loss if as
is argued by learned advocate for plaintiff, the names of defendant
Nos.2 to 4 are deleted from the suit. On the contrary, continuing
defendant Nos.2 to 4 in summary suit will not put defendant Nos.2 to 4
to any jeopardy. For all aforesaid discussion, I accede with arguments of
learned advocate for plaintiff as against the arguments of learned
advocate for defendants. The chamber summons moved by defendants
deserves to be dismissed. In result, I proceed to pass following order.
ORDER
1. Chamber Summons No.475 of 2019 is dismissed with costs.
2. Chamber Summons No.475 of 2019 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.40)
Date : 03.01.2020 City Civil Court, Gr. Mumbai
Dictated on :03.01.2020
Transcribed on :04.01.2020
Signed on :07.01.2020
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Summary Suit No.77/18 8 Chamber Summons No.475/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.01.2020, 03.01 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.40
Date of Pronouncement of
JUDGMENT/ORDER
03.01.2020
JUDGMENT/ORDER signed by
P.O. on
07.01.2020
JUDGMENT/ORDER uploaded on 13.01.2020
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