Order 1

Order Details: Chamber summons
Pdf Text: CS.804/19 in CS 2129/18 in Session Case 5291/18 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.804 OF 2019
IN
CHAMBER SUMMONS NO. 2129 OF 2018
IN
S.C.NO. 5291 OF 2018
(CNR.NO.MHCC010159382012)
G.M.Mills Pvt. Ltd. )
formerly known as M/s. Hartex Exports )
Pvt. Ltd., a company registered under the )
provisions of the Indian Companies Act, )
having its registered office, Andheri Kurla )
Road, Mumbai 400 059. ).... Plaintiff
VERSUS
J. Dwarkadas )
A partnership firm carrying on business at )
Jaydwar 19, champagali, Mumbai400002 ).... Defendant
AND
Hansaben Himatlal Dwarkadas )
Partner of Defendant firm carrying on )
business at Jaydwar 19, Champagali, )
Mumbai 400 002. ).... Respondent
Mrs. Vidita Bhalekar Adv. for Plaintiff.
Mr. Suryankant Patil, Advocate for Defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Addl. Judge
CR No. : 32
Dated : 04th June, 2019.
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CS.804/19 in CS 2129/18 in Session Case 5291/18 2
: ORDER :
1. The plaintiff has filed instant Chamber Summons for
condonation of delay of 406 days in taking out Chamber Summons for
bringing Legal Heirs of partner of defendant firm.
2. It is contended by the plaintiff that Himatlal Dwarkadas
was one of the partner of the defendant firm who is expire on
15.04.2017. The plaintiff came to the know the aforesaid fact in the
month of August 2018. Mrs. Hansa Himatlal is the wife of the deceased
Himatlal Dwarkadas, who is also one of the partner of the defendant
firm. It is contended by the plaintiff that as the information of death is
not supplied by the defendant firm, therefore, it was difficult for them
to bring the legal heirs on record. Therefore, the delay of 406 days has
been caused to present file. The delay is not intentional, hence, delay
be condoned.
3. The Chamber Summons is apposed by the defendant by
filing their reply. Heard both the sides. Perused application and say.
The plaintiff filed instant suit against the defendant who is the
partnership firm. As per Order 30, Rule 4, there is no necessity to join
the legal representative of the deceased as the party to be suit in event
of death of any of the partner. The order 30 Rule4 is enumerated as
under :
1. Notwithstanding anything contained in Section 45 of the
Indian Contract Act 1872, where two or more persons may
sue or be sued in the name of a firm under the foregoing
provisions and any of such persons dies, whether before the
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CS.804/19 in CS 2129/18 in Session Case 5291/18 3
institution or during the pendency of any suit, it shall not be
necessary to j9oin the legal representative of the deceased as a
party to the suit.
2. Nothing in subrule(1) shall limit or otherwise affect any
right which the legal representative of the deceased may
have
a) to apply to be made a party to the suit, or;
b) to enforce any claim against the survivor or survivors.
4. Thus, in view of aforesaid provisions, in my view, there is
no necessity of bringing legal heirs of deceased partner on record.
Hence, in my opinion, the Chamber Summons is misconceived.
Therefore, I do not find any substance in condoning the delay for
bringing legal heirs of deceased partner on record. Hence, I dismissed
the Chamber Summons.
5. It is vehemently contended by the Advocate for the plaintiff
that, defendant firm has not disclosed the details of name of the
partners and therefore, in order to fix responsibility, it is necessary to
direct the defendant firm to furnish details of partners.
6. As per order 30, Rule 6, where persons are sued as partners
in the name of their firm, they shall appear individually in their own
names, but all subsequent proceedings shall, nevertheless, continue in
the name of the firm.
7. Thus, in view of the Order 30, Rule 6, even though the
defendant firm did not disclose the name of the partners, but the
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CS.804/19 in CS 2129/18 in Session Case 5291/18 4
proceedings shall be continue in the name of firm and no prejudice
would be caused to the claim of the plaintiff. As per Order 30, Rule 6,
it is necessary for the party to disclose the name of the partners. Hence,
the defendant firm is directed to furnish the details of the name and
addresses of the partner within the period of one month. In view of the
above, the Chamber Summons is disposed off as misconceived. Thus, I
proceed to pass following order.
: ORDER :
1. The Chamber Summons No. 804/2019 is hereby disposed off.
2. The Defendant No. 1 is directed to furnish names and addresses
of the Defendant firm within period of one month.
3. As the Chamber Summons No. 804/2019 is disposed off as not
maintainable, the Chamber Summons No. 2129/18 for bringing
legal heirs of deceased is also stands disposed off.
4. No order as to cost.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 04.06.2019 Greater Mumbai
Dictated on : 06.06.2019
Transcribed on : 06.06.2019
Draft submitted on : 06.06.2019
Checked on : 06.06.2019
Signed on : 10.06.2019
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CS.804/19 in CS 2129/18 in Session Case 5291/18 5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/06/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.32)
Date of Pronouncement of
JUDGMENT/ ORDER
04/06/2019
JUDGMENT/ORDER signed by
P.O. on
10/06/2019
JUDGMENT/ORDER uploaded
on
10/06/2019
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