Interim Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 671/2020 in Comm. Suit No. 2/19. 1 Order.
MHCC010060852020
Presented on : 05-12-2020
Registered on : 05-12-2020
Decided on : 03-09-2021
Duration : 0 years, 8 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 671 OF 2020
IN
COMMERCIAL SUIT NO. 2 OF 2019
M/s. Chetan Traders ...Plaintiff
Versus
M/s. KS Group and others ...Defendants
And
KEC International Limited and others ...Respondents
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 3rd SEPTEMBER, 2021.
Shri P.D.Gandhi and Shri Hardik Desai, Advocate for the plaintiff.
Shri Zubin Dalal, Advocate for the defendants.
ORDER
1. This chamber summons is moved by the plaintiff for adding
respondents no.1 to 4 as defendants no.5 to 8 in the suit and also for
carrying out amendment in the pleading regarding role of respondents
no.1 to 4 under Order I Rule 10 and Order VI Rule 17 of the CPC.
Perused chamber summons with supporting affidavit and reply given by
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 2 Order.
defendants no.1 to 4. Heard learned counsel Shri P.D.Gandhi and Shri
Hardik Desai for the plaintiff and learned counsel Shri Zubin Dalal for
the defendants. It is contention of the plaintiff that he has filed the suit
for recovery of money against defendants no.1 to 4. He further
contended that he had forwarded cargo in pursuance of orders placed
by defendant no.1 to his customers as per their requirement and
request. He rendered services to defendant no.1 for the purpose of
forwarding the said cargo. It is his contention that proposed defendants
/ respondents are the customers / clients of defendant no.1 to whom he
had rendered services during the lifetime of Ketan Dholakia (proprietor
of defendant no.1 firm). Defendants no.2 to 4 are legal representatives
of late Ketan Dholakia. Now, the defendants denied their responsibility
to pay the amount towards services rendered by the plaintiff in reply of
defendant no.2 filed in Notice of Motion No. 1383/2019. Meanwhile,
the plaintiff came to know that defendant no.2 made substantial
recoveries of the amounts due and payable to defendant no.1 from
proposed defendants. For this reason, the plaintiff wants to add
customers of defendant no.1 as party to the suit and seek relief of
recovery of money against them.
2. In reply affidavit, the defendants have contended that
chamber summons taken out by the plaintiff is not maintainable being
illegal, badinlaw, false, frivolous, baseless, misconceived and devoid of
facts. It is their contention that proposed defendants appears to be the
customers of Ketan Dholakia or M/s. KS Group and they are not directly
or indirectly connected with the plaintiff. As the plaintiff is trying to
recover the amount from the defendants by filing this suit and he has
made pleading regarding services rendered to the proposed defendants,
similar contentions cannot be allowed to be repeated by way of
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 3 Order.
chamber summons. Proposed defendants are not proper and necessary
parties as per Order I Rule 10 of the CPC. Furthermore, no relief or
claims are made by the plaintiff against the respondents. Therefore, the
suit can be decided in absence of proposed defendants. The defendants
denied the aspect of recovery of the amount from the respondents. By
stating so, dismissal of the chamber summons is prayed.
3. Learned counsel Shri P.D.Gandhi reiterated contents in the
chamber summons. He drew attention of the Court towards tax
invoices and bills of lading placed on record and submitted that the
plaintiff had rendered services to the respondents by forwarding cargo.
He further submitted that Ketan Dholakia was the customer of the
plaintiff and he rendered services to the respondents on his request.
Unfortunately death of Mr. Ketan Dholakia forced the plaintiff to file
instant suit against his legal representatives for the recovery of amount
in respect of services rendered by him as per tax invoices filed with the
plaint. He further submitted that the defendants denied their
responsibility of payment and at the same time, they proceeded to
recover legal dues from the respondents to whom the plaintiff had
rendered services. By stating so, he proceeded to state that the plaintiff
has right to recover the sum either from the defendants or from the
respondents. The respondents are actual beneficiaries of services
rendered by the plaintiff and they are necessary parties to the suit. He
submitted that chamber summons may be allowed by the Court.
4. On the contrary, learned counsel Shri Zubin Dalal for the
defendants placed reliance upon citation of Kasturi V/s. Iyyamperumal
And Others (2005) 6 Supreme Court Cases 733 and submitted that
the parties proposed to be added should have direct and legal interest in
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 4 Order.
the controversy involved in the suit and there must be a right to some
relief against such party in respect of the controversies involved in the
proceedings and no effective decree can be passed in the absence of
such party. He also relied upon citation of Anil Kumar Singh V/s.
Shivnath Mishra – (1995) 3 Supreme Court Cases 147 to make
submission that respondent, who is neither a necessary nor a proper
party to adjudicate upon the dispute arising in the suit, cannot be made
party. Third citation relied by learned counsel Shri Zubin Dalal is
Mumbai International Airport Pvt. Ltd. V/s. Regency Convention
Centre & Hotels Pvt. Ltd. & Ors. AIR 2010 Supreme Court 3109 in
which it is observed in para 12 that discretion given to the Court is
judicial discretion and it is to be exercised according to reason and fair
play and not according to whims and caprice. He further relied upon
the citation of Ramesh Hirachand Kundanmal V/s. Municipal
Corporation Of Greater Bombay And Others (1992) 2 Supreme
Court Cases 524 and submitted that the Court should exercise judicial
discretion having regard to facts and circumstances of the case.
Learned counsel Shri Zubin Dalal for the defendants submitted that no
relief is asked by the plaintiff against the respondents. Order I Rule 10
of the CPC does not permit enlarging the scope of the suit. As the
respondents availed services of the plaintiff, the suit itself is not
maintainable. If the respondents are liable to pay, different suit should
be filed against them. The plaintiff cannot be permitted to enlarge
cause of action. Proposed amendment will result into enlarging the
scope of the suit. The respondents are not necessary parties to the suit.
No cause of action is disclosed against the respondents in proposed
amendment. By raising all these points, he submitted that chamber
summons may be rejected.
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 5 Order.
5. On perusal of the record, it appears that the plaintiff had
rendered services to Mr. Ketan Dholakia who was carrying the business
of providing freight forwarding services, custom clearance services and
transportation services in the name and style of 'M/s. KS Group'
(defendant no.1). The plaintiff has engaged in the business of
providing freight logistics services. The plaintiff had raised invoices for
providing services to Mr. Ketan Dholakia, but they remained unpaid to
the tune of claim amount in the plaint. Meanwhile, Mr. Ketan Dholakia
expired on 07/07/2018. Resultantly, the suit is filed against his firm
(defendant no.1) and legal representatives (defendants no.2 to 4).
6. Now, the plaintiff came up with the case that the
defendants denied their liability. The plaintiff has pointed out the bills
of lading in which names of the respondents are written as consignee.
It appears from these bills of lading that cargo forwarding services were
actually rendered to the respondents by the plaintiff. If the respondents
make payment to the defendants and the defendants avoided to pay the
dues of the plaintiff by denying respondents, the plaintiff would not be
in position to pursue the aspect of recovery from the respondents in
future by engaging in another round of litigation. Amendment can be
allowed in order to avoid multiplicity of litigation. Though Late Ketan
Dholakia was having business dealings with the plaintiff, the
respondents are actual beneficiaries of the services rendered by the
plaintiff. In such circumstances, the plaintiff is justified in making claim
for recovery of the amount either from the defendants or from the
respondents. There is nexus between the plaintiff and the respondents
through the medium of defendant no.1. Considering all these delicate
aspects involved in the matter, the plaintiff can pursue the aspect of
recovery of money against the defendants as well as respondents
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 6 Order.
(proposed defendants). Proposed defendants are necessary parties to
the suit.
7. Before parting the discussion, above referred citations have
to be dealt with. In citations of Kasturi, Anil Kumar Singh and Mumbai
International Airport Pvt. Ltd. (cited supra), Hon'ble Apex Court
considered the aspect of addition of party to the person obtaining
interest in the suit property. All suits were relating to specific
performance of contract of sale of immovable property. Hon'ble Apex
Court has observed in para 9 of Anil Kumar Singh's citation (cited
supra) that :
“Subrule (2) of Rule 10 of Order I provides that
the Court may either upon or without an
application of either party, add any party whose
presence before the Court may be necessary in
order to enable the Court effectually and
completely to adjudicate upon and settle all
questions involved in the suit. Since the
respondent is not a party to the agreement of sale,
it cannot be said that without his presence the
dispute as to specific performance cannot be
determined. Therefore, he is not a necessary
party.”
8. Above para in Anil Kumar Singh's citation is quoted in the
para 14 of Kasturi's citation. In all these three citations, relief of
addition of party by way of amendment was refused by Hon'ble
Supreme Court. In short, all these citations are pertaining to the cases
of similar set of transactions. Present case is quite different from the
point of view of facts. As discussed earlier, the plaintiff has pleaded
that he rendered services to proposed defendants at the behest of
defendant no.1 (firm) on the say of proprietor Ketan Dholakia.
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 7 Order.
Considering difference in facts and circumstances of the case, ratio in
above referred citations cannot be applied to conclude that proposed
defendants are neither necessary party nor proper party.
9. So far as citation of Ramesh Hirachand Kundanmal is
concerned, Hon'ble Supreme Court has guided on the point of exercise
of judicial discretion while dealing with addition of necessary parties .
Proposed defendants are necessary parties as discussed earlier and
amendment in the plaint is going to be allowed by following guiding
factors while exercising judicial discretion. Learned counsel for the
plaintiff Shri P.D.Gandhi had filed pursis (Ex.11) on 27/07/2021
stating that service of chamber summons would not be effected upon
respondent no.3 and it is causing delay in adjudication of the suit and
chamber summons. He not pressed the chamber summons against
respondent no.3. Therefore, chamber summons can be partly allowed
in respect of respondents no.1, 2 and 4. Hence, I pass the following
order :
ORDER
1. Chamber Summons No. 671/2020 is made absolute in
terms of prayer clause (a) excluding relief of amendment as
to the name of respondent no.3 (proposed defendant no.7
shown in the schedule) and pleading in his respect.
2. Respondents no.1, 2 and 4 be arrayed as defendants no.5, 6
and 7 respectively.
3. The plaintiff is directed to carry out amendment in the
plaint within 14 days from the date of this order.
4. Costs in cause.
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Ch/s No. 671/2020 in Comm. Suit No. 2/19. 8 Order.
5. Ch/s No. 671/2020 is disposed off accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 03/09/2021. Mumbai.
1. Dictated on : 03/09/2021.
2. Transcribed on : 04/09/2021.
3. Signed on : 04/09/2021.
4. 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
04/09/2021. 3.36 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 03/09/2021.
Judgment/Order signed by P.O. on 04/09/2021.
Judgment/Order uploaded on 04/09/2021.
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