Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1230-19 in S.C.SUIT no.9650-90
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1230 OF 2019
(CNR no. MHCC010031622019)
IN
S.C. SUIT NO.9650 OF 1990
(CNR no. MHCC010073322012)
(HIGH COURT SUIT NO. 607 OF 1990)
M/s. Sona Constructions ]..Plaintiff
Versus
1. Vimal Prabhakar Dhuru & ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 04th April, 2019.
Mr. Agrawal, advocate for plaintiff.
Mr. Chitnis, advocate for defendant no. 6.
ORDER
1. The plaintiff has taken out this motion seeking leave under
Order XXII Rule 10 of the Code of Civil Procedure (C.P.C.) permitting
M/s. Sona Constructions a proprietory concern of Shri. Ramniklal
Damaji Gada to continue to prosecute the suit against defendant by
making suitable changes in the cause title of the plaint.
2. The learned advocate for the plaintiff submitted that the
suit was originally instituted by M/s. Sona Constructions a partnership
firm in 1990. Thereafter, by deed of dissolution dated 04.06.1992
executed between the partners Prakash Damaji Gada and Ramniklal
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2 NM no.1230-19 in S.C.SUIT no.9650-90
Damaji Gada, the plaintiff firm was dissolved with a permission to
Ramniklal Gada to continue to carry on the same business in the name
and style of M/s. Sona Constructions & Co. He further submitted that
the defendants earlier took out a notice of motion for dismissal of the
suit as the aforesaid partnership firm was dissolved and necessary
amendment was not carried out, however, the said motion was
withdrawn by the defendants. He further submitted that in the written
statement the defendants have raised same issue. According to him, the
leave under Order XXII Rule 10 of C.P.C. can be granted at any time by
the Court. No prejudice will be caused to the defendants. He placed
reliance on the following authorities :
I. Civil Appeal No.9697 of 2013 (arising out of SLP (C)
no.20563 of 2012.
M/s. A. V. K. Traders vs. Kerala State Civil supply Ltd.
Facts : On the death of one of the partners of a partnership firm
consisting of only two partners, the remaining partner became the
sole proprietor / owner with all assets and liabilities and as such
he sought for leave under Order XXII Rule 10 of C.P.C. to proceed
with the suit.
Ratio : The question was before the Hon'ble Supreme Court that
on dissolution of partnership on the death of a partner could the
suit already filed be proceeded with by the remaining so called
partner. It was held that the principle laid down in Order XXII
Rule 10 of C.P.C., deals with the procedure in case of assignment
before the final order of the suit. Rule 10 refers to, “devolution of
any interest” during the pendency of the suit. In such a case the
Court can grant leave to prosecute the suit against the person to
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3 NM no.1230-19 in S.C.SUIT no.9650-90
or upon whom such interest has been devolved.
II. A.I.R. 1983 Jammu & Kashmir 62
Gulam Mohamad vs. Gulam Ahmad
Ratio : In case the appellant assigning his interest in the property
during the pendency of appeal, the assignee moves an application
for impleadment and leave to continue the appeal, mere delay in
moving the application can not constitute a sufficient cause for
rejecting the application.
3. On the other hand, the learned advocate for the defendants
submitted that the partnership entered into in the year 1995 was
dissolved in 1992. The motion has been taken out at much belated
stage, and that too, during the course of final arguments when it was
argued that the suit would not tenable. No reason is stated for such
delay for taking out the motion. According to him, the plaintiff was well
aware of the fact. He kept silent for long time. Thus, the motion is not
tenable.
4. Undisputedly, the suit was filed by a partnership firm
consisting of two partners, which was dissolved in 1992 by assigning
the rights and with permission to use the name of the firm to the
proprietory concern which is headed by the applicant herein. In view of
the provisions of Order XXII Rule 10 of C.P.C. and the ratio in the case
of M/s. A.V.K. Traders (supra) the motion deserves to be allowed as in
fact and effect since 1992 the applicant is prosecuting the suit for all
purposes and has undergone the cross examination even. The motion
would not amount to filling up the lacuna because the provisions of
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4 NM no.1230-19 in S.C.SUIT no.9650-90
Order XXII Rule 10 of C.P.C. can be invoked at any time. The prejudice
which may be caused to the defendants because of delay in taking out
the motion during the final arguments can be compensated in terms of
costs. The defendants have withdrawn the motion which was taken out
by them earlier for dismissal of the suit on the said ground and
therefore, on that point there will not be any prejudice to the
defendants. Thus, the following order is passed:
ORDER
1. The Notice of Motion no. 1230 of 2019 is made absolute in terms
of prayer clause (a) subject to payment of costs of Rs.5,000/ to
the defendant no. 6 or to be deposited in the Court for that
purpose within a period of two weeks from today, with a further
directions to carry out necessary amendment by supplying
amended copy of the plaint within a period of two weeks from
today.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 05.04.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 05.04.2019
Checked by HHJ on : 05.04.2019
Signed by HHJ on : 05.04.2019
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5 NM no.1230-19 in S.C.SUIT no.9650-90
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.04.2019 at 5.47 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
05/04/2019
JUDGMENT/ORDER signed by
P.O. on
05/04/2019
JUDGMENT/ORDER uploaded
on
05/04/2019
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