Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1346 of 2018
CNR No.MHCC010042822018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1346 OF 2018
IN
SUIT NO.6117 OF 2007
Tarun Keshrichand Shah and anr. .. Plaintiffs.
Versus
M/s. Kishor Engineering Company .. Defendants
AND
Nak Engineering Company Pvt. Ltd and anr. .. Applicant
Ld. Advocate Aayush for plaintiff.
Ld. Advocate Arun Mehta for defendants/Intervener/Applicant.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 05.10.2018
: ORDER :
This Notice of Motion is taken out by
intervener/applicant/defendant for directing the plaintiff, to add them
as a party defendant in place of present defendant and thereafter they
be permitted to file written statement on record.
2. Applicant submitted that they have not received any notice in
this matter. The name of the advocate S.S.Dube and Nagendra Dube
shown as appeared for defendant. But their vakalatnama is not on
record. Plaintiff further submitted that the applicant Nak Engineering
Company Pvt. Ltd. is the successor of M/s. Kishor Engineering Company
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present defendant and had filed on record certificate incorporation
alongwith memorandum of association Nak Engineering Company
Pvt. Ltd. It was further contended that inview of this plaintiff
should have brought Nak Engineering company as the defendant
and not Kishor Engineering. It was further submitted that plaintiff
was aware of this and had purposely not implicated them and
prayed to allow the notice of motion.
3. Original plaintiff appeared and submitted that the notice of
motion is misconceived, malafide and based on frivolous and vexatious
grounds. Applicant has no locus standi in the matter. They are in
wrongful and illegal occupation of the suit premises. Defendant M/s
Kishor Engineering are recognized tenants and they have filed an
eviction proceeding against the said defendant and also Himanshu
Patwa, who is the director of Nak Engineering Company. It was further
submitted that Nak Engineering and Himanshu Patwa are in illegally
and unlawfully occupation of the suit premises. Similarly, observations
are made by the Small Causes Court in L.E.& C. Suit No.
139/158/2007, which is filed by the plaintiff. Writ of summons was
duly served upon the defendant. They did not appear. Hence no reply
order was passed against him. Applicant/intervener was aware of
pending the litigation. There is delay of 9 years and it cannot be
condoned.
4. Heard Ld. Counsel Arun Mehta for the applicant and Ld.
Counsel Ayush Singhvi for plaintiff. Perused the material on
record.
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5. Upon considering the hearing it is not disputed that the
present applicant Nak Engineering Company Pvt. Ltd. is in the
occupation of the suit premises. As per the contention of the plaintiff
the premises was given on license to M/s. Kishor Engineering Company
and they had illegally inducted M/s Nak Engineering in the suit
premises. Admittedly the premises was first letout to M/s. Kishor
Engineering. Now it is in the possession of Nak Engineering Company.
According to plaintiff Nak Engineering Company are the trespasser.
Whereas the Nak Engineering Company contended that they are the
successor of M/s. Kishor Engineering and the entire dispute aroused
out of it.
6. Upon considering the hearing it is also apparent that the
plaintiff, defendant and the applicant are contesting the suit before
Small Causes Court inregard to the suit premises. Similarly, the
criminal complaint was filed by the plaintiff no. 1 Tarun Keshrichand
Shah against Nak Engineering Company Pvt. Ltd and Himanshu
Patwa for dishonour of two cheques for Rs. 2100/ and 400/ and
also for not clearing the electricity dues. Thus, in the opinion of the
court the plaintiff was aware who was in possession of the suit
premises.
7. Further, the Certificate of incorporation relied by the
applicant alongwith memorandum of association and was strongly
objected by the plaintiff. Upon considering the hearing, it prima facie
shows that the applicant Nak Engineering Company Pvt. Ltd has
been taken over and acquired the business interest of defendant M/s.
Kishor Engineering Company. Ld. Counsel for the defendant had
objected to this certificate incorporation and submitted that partnership
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firm cannot be converted into a Pvt. Ltd. Company. It is not
incorporated under Part IX of the Companies Act and hence, the
impugned certificate cannot be relied upon.
8. The Court is of the opinion that Part IX of the Companies Act
is concerned with the Company Registrar. He is statutory authority.
Whether the defendant company would eligible to be incorporated or
not and whether the proper procedure are followed by the Company
Registrar or not cannot be decided and adjudicated by this court. This
court does not have jurisdiction to decide the issue pertaining to
Registration of the company. Thus, the certificate given by the
Registrar of firm can be relied upon by this court as a prima facie proof
of incorporation. The said certificate was issued on 22.02.1988.
9. This suit is filed by the plaintiff for recovery of Rs. 75,600/
towards the arrears of service charges due and payable by the
defendant from November, 2004 to October, 2007. Thus, upon the
considering the hearing the court is of the opinion that plaintiff was
aware that the suit premises and its possession was handed over
by the defendant M/s. Kishore Engineering Company to the
applicant Nak Engineering Company Pvt. Ltd. He had made the
applicant/intervener as a party before the Small Causes Court. In this
suit for recovery he should had made the applicant/intervener as a
party. Defendant also appears to be having knowledge of the present
litigation. They too failed to intervene. But it was the duty of the
plaintiff to add the present applicant/intervener as a party
10. Whether the possession of the applicant is legal or illegal is
not the issue before the court while adjudicating the impugned
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Notice of Motion. As earlier observed this suit is for recovery of service
charges of Rs. 75,600/. As per certificate of incorporation and
submission of applicant it can be expressed that the defendant M/s.
Kishor Engineering Company has been acquired by the applicant Nak
Engineering Company Pvt. Ltd. It also appears that due to this Kishor
Engineering Company is not legal entity anymore. Thus, for the proper
adjudication of this matter the applicant is required to be added as a
defendant in the place of present defendant as prayed. Hence,
considering this, I pass the following order.
: ORDER :
Notice of Motion No.1346 of 2018 is allowed in terms of
prayer clause (a), (b), (c) and (d).
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 05.10.2018 Gr. Mumbai
Dictated on : 05.10.2018
Transcribed on : 06.10.2018
Signed on : 06.10.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 10.10.2018 at 2.42 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
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Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
05.10.2018
JUDGMENT/ORDER signed by P.O. on 06.10.2018
JUDGMENT/ORDER uploaded on 10.10.2018
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