Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.403 OF 2018
IN
SUIT NO.388 OF 2000
Neha Bhagwandas Vakani ...Applicant.
Bhagwandas Tulsidas Vakani & ors. ...Plaintiff
V/s.
Dinesh Govindji Joshi & ors. ...Defendants.
Appearances:
Applicant in person.
Ld. Adv. Mr.Anil Bagwe for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 10th September,2018
ORDER
By way of this chamber summons applicant/plaintiff No.1(c)
prayed for allowing chamber summons to bring legal heirs of deceased
defendant No.1 on record and necessary amendment in the plaint.
2. In supporting affidavit of applicant it is submitted that, she is the
legal heir of deceased plaintiff Nos.1 and 2. Deceased plaintiff No.1 is
her father and deceased plaintiff No.2 is her brother. She is conversant
with the facts. The suit has been filed by deceased plaintiff Nos.1 and
2, who are original partners of the suit Partnership Firm namely
M/s Tulsidas Valji & Co, against the deceased defendant. Defendant
was made partners in the said Firm in the year 1985 as per record and
MHCC01-002906-2018
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therefore, suit was filed for dissolution of Partnership Firm and account
and other reliefs sought in the suit. During pendency of the suit
defendant was declared insolvent vide order dt.19.08.2006 passed by
Hon.Bombay High Court in Insolvency Petition No.142 of 2005. During
pendency of the Insolvency Proceedings before the Insolvency Registrar,
defendant Dinesh Govindji Joshi expired on 27.08.2017 and therefore,
she has filed Notice of Motion No.67 of 2017 in the said Insolvency
Petition No.142 of 2005 before the Hon.Bombay High Court. The said
matter is under challenge and pending before Hon.Apex Court in
Special Leave Petition No.1745517456 of 2017. As the deceased
Dinesh Govindji Joshi expired during the pendency of the suit,
therefore, his legal heirs are necessary to be brought on record.
Therefore, she submitted that proposed proposed legal heirs be brought
on record as defendant No.1(d) in the array of defendants and
necessary amendment to that effect be also made on record insertion of
para No.1(a).
3. The applicant submitted the presence of third daughter of
deceased defendant No.1 is necessary for proper adjudication of the
matter and to determine the questions involved in the matter properly
when dissolution of firm is sought in respect of assets and liabilities and
accounts of the firm, the assets and liability of deceased defendant must
be brought on record. Hence, in the interest of justice the proposed
amendment is sought to be allowed as per schedule and prayed that,
chamber summons be made absolute.
4. After service of the notice of chamber summons, defendant 1(c)
filed her reply on record and submitted that chamber summons is
misconceived, not maintainable and liable to be dismissed. She is Priti
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Jayesh Shah and her name was not disclosed and no proof in support of
the prayer of the chamber summons is placed on record. Hence,
chamber summons is not maintainable and needs to be dismissed. The
prayer about her name as Sandhya Dineshchandra Joshi is her maiden
name before her marriage and after marriage her name is changed as
Priti Jayesh Shah and for which she is annexed her marriage certificate.
From this it is proved that, Sandhya Dineshchandra Joshi is the same
person i.e herself, whose name is already on record as defendant
No.1(c). When she is already on record the question of adding her as
defendant No.1(d) does not arise and therefore, only to harass and
pressurize, the applicant is taking such frivolous and false application
wasting the time of Court and therefore, she prayed that, chamber
summons does not survive become unfructuous and liable to be
dismissed with heavy costs.
5. Heard both the sides at length. Perused the record and
submissions.
6. Learned Advocate for defendants flatly submitted that, now
proposed defendant 1(d), who is already on record as defendant
No.1(c) after marriage now she becomes Priti Jayesh Shah and will
remain liable for any liability falling on Sandhya Dineshchandra Joshi
as her name changed after marriage. Therefore, question of allowing
this chamber summons does not arise. He submitted in rejoinder that,
her name was not changed in the LIC policy, which has been relied by
this applicant. But now after marriage her name being changed as per
marriage certificate and it changed name appears on her passport.
Hence, chamber summons even though made absolute will not serve
any purpose.
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7. On the other hand applicant in person submitted that as LIC
policy itself, downloaded from the Internet shows her name. However,
birth date of said Sandhya Dineshchandra Joshi recorded by LIC and on
the passport is the same i.e. 06.08.1974. Therefore, even if she is the
same person to avoid future discrepancies the proposed defendant
No.1(d) must be add in the array of defendant, since defendant 1(c)
herself in his reply submitted that, Sandhya Dineshchandra Joshi and
Priti Jayesh Shah are one and the same person and that proposed
defendant 1(d) Priti Jayesh Shah will remain liable for any liability
fixed on Sandhya Dineshchandra Joshi arising out of the suit.
Therefore, they prayed that, chamber summons be made absolute.
8. The legal heirs of deceased Dineshchandra Joshi have already
brought on record. Defendant No.1(c) is also record. Now defendant
No.1 (d) Priti Jayesh Shah, which is the daughter of deceased
defendant No.1 Dineshchandra Joshi who is having her maiden name as
Sandhya Dineshchandra Joshi. Therefore, she being legal heir and
representative of defendant No.1 is already on record in the suit. Even
if again her name is added in the array of defendant as defendant
No.1 (d) will not change the nature of the suit, even it will not cause
any prejudice. The fact that said Priti Jayesh Shah and Sandhya
Dineshchandra Joshi is one and the same person as per her marriage
certificate and passport produced on record. Therefore, entire
responsibility lies upon the said Priti Jayesh Shah (nee Sandhya
Dineshchandra Joshi). Therefore, to avoid further complication and
travelling the matter on different issues when the suit is filed for
dissolution of Firm its assets and liabilities and accounts, the presence
of Priti Jayesh Shah alias Sandhya Dineshchandra Joshi as legal heir of
deceased defendant Dineshchandra Joshi will subserve the purpose for
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effectual adjudication of the matter and to determine the real questions
of controversies involved between the parties. If she is added as
defendant No.1(d) when she is already on record as defendant No.1(c)
it will not cause prejudice to her.
9. In such circumstances, chamber summons needs to be made
absolute. The proposed amendment will not change the nature of the
suit. It is within limitation. The question of bar of commencement of
trial does not arise. On the other hand in view of abundant precaution
by the applicant, who is now conducting the proceedings in person,
wants to have legal heirs of deceased defendant No.1 i.e defendant
No.1 (a) to 1(d) to be specifically mentioned in the record will
definitely have substance to avoid further complication. Due diligence
is also shown and therefore, proposed amendment is necessary to be
carried out in the plaint as per schedule attached to the chamber
summons. Hence, chamber summons needs to be made absolute. In
the circumstances parties are directed to bear their costs and hence, I
proceed to pass the following order :
O R D E R
1. Chamber Summons NO.403 of 2018 in Suit
No.388 of 2000 is made absolute.
2. Plaintiff/applicant to carrying out necessary
amendment as per schedule attached to the
chamber summons within 14 days from the date
of this order and to file amended copy of plaint
on record.
3. Smt.Sandhya Dineshchandra Joshi be added as
legal heir of deceased defendant in the array of
defendant as 1(d) and after amendment writ of
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summons be served upon her along with
amended plaint with necessary documents for
calling her reply on record.
4. No order as to costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 10/09/2018 City Civil Court, Gr. Mumbai
Dictated on : 10.09.2018
Transcribed on : 11.09.2018
Signed on : 11.09.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.09.2018 at 2.46 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 10.09.2018
Judgment/order signed by P.O. on 11.09.2018
Judgment/order uploaded on 11.09.2018
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