Order 2

Order Details: Chamber summons
Pdf Text: 1 C/H No.871/2018 in S.S.1236/2014
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.871 OF 2018
IN
S.C.SUIT NO. 1236 OF 2014
Smt. Leela Parshuram Uttarkar ]
Age 64 years, Occupation : Housewife, ]
Residing at 404, Ajay Shopping Centre, ]
Mahim, Mumbai 400 016. ].. Applicant.
In the matter between;
Smt. Leela Parshuram Uttarkar ]
Age 64 years, Occupation : Housewife, ]
Residing at 404, Ajay Shopping Centre, ]
Mahim, Mumbai 400 016. ].. Plaintiff.
V/s.
1 M/s. Uttarkar Brothers ]
Registered partnership firm ]
represented through its partner ]
Arvind Atmaram Uttarkar. ]
2 Shri Arvind Atmaram Utttarkar ]
Partner of Uttarkar Brothers, ]
Aged 49 years, Both having ]
address at Shop Nos.1 and 2 ]
Amin Manzil, Ground Floor, ]
155, L.J. Road, Mahim, ]
Mumbai 400 016. ]
3 Mr. Parag Inamdar ]
Age not known, Occupation: ]
Business, Owner of Potoba Hotel, ]
Having address at Shop Nos. 3 & 4, ]
Amin Manzil, Ground Floor, ]
155, L.J. Road, Mahim, ]
Mumbai 400 016. ]..Defendants.
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Advocate Ms. C.A. Savitri for the plaintiff.
Advocate Mr. Rakesh Agarwal for the defendants.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 26th JUNE 2018
ORAL ORDER
This Chamber summons has been taken out by the plaintiff
for permitting the plaintiff to amend suit plaint as per schedule annexed
to this Chamber Summons.
2 In support of Chamber Summons, the plaintiff has filed her
affidavit. It is averred by the plaintiff that she has filed suit against the
defendants for a declaration that she is a deemed partner of defendant
no.1 and for directions to defendant no.2 to complete the formalities of
preparing the Deed of Partnership, in accordance with the Partnership
Deed dated 01.12.2006 in the name of defendant no.2 and the plaintiff
as the partners of defendant no.1 and execute the same and get the
same duly registered with the Registrar of firms. Also she has filed the
suit for furnishing true and proper accounts of defendant no.1 to her
and for other reliefs.
3 It is further averred that her husband late Parshuram
Uttarkar and Atmaram Uttarkar, father of defendant no.2 were the
original partners of defendant no.1 firm. They were carrying on the
business of tailoring in the name of Uttarkar Brothers since year 1950
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from the suit shop premises, as its principal place of business. In the
year 1970, both the deceased brothers under legal advice executed a
partnership deed dated 01.11.1970 and registered the same with the
Registrar of firms. Both the families of the plaintiff and defendant no.2
were being maintained from the income of the joint family business of
defendant no.1. Both the deceased brothers purchased their properties
being two adjacent flats in Ajay Shopping Centre at Mahim, out of
which the plaintiff is residing in flat no.404, which was purchased in the
name of her husband and defendant no.2 is residing in flat no.403,
which was purchased in the name of his mother. They were living as
one family in the said flats till the death of husband
of the plaintiff in the year 2011.
4 It is further averred that as per the terms of the said
partnership deed dated 01.11.1970, on the death of the said karta late
Atmaram Uttarkar in the year 2006, defendant no.2 being his son was
admitted as a partner of defendant no.1 by the husband of the plaintiff.
Partnership Deed dated 01.12.2006 was executed between the deceased
husband of the plaintiff and defendant no.2. In the said deed, similar
terms were there to admit one of the heirs of the deceased partner as a
partner of the firm.
5 In the exchange of notices prior to the filing of the suit,
defendant no.2 totally admitted her case and her rights to be inducted
as a partner of defendant no.1 firm through his advocate reply dated
12.02.2014. However, avoided the same without any reason. She has
admitted that she was being paid a sum of Rs.4,000/ per month from
the income of the said partnership business even after the death of her
husband. The suit premises shop nos.1 and 2 being the business
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premises of defendant no.1 were taken on tenancy for running joint
family business of defendant no.1 since 1950. Mutually rent receipts
were taken in the name of eldest brother, as he was the karta of the
joint family business of two deceased brothers. At the time of filing of
the suit, the plaintiff sought injunction against defendant nos.1 and 2
from negotiating and/or executing any documents or deeds or paper
with defendant no.3 or any other third or from handing over or parting
with possession of the business premises of defendant no.1. The Court
has partly allowed her notice of motion vide order dated 25.07.2014.
6 It is further averred that pending the present suit, the
process of redevelopment of the suit building was commenced by one
Zara Habitats, a partnership firm, who had also purchased the suit
building. She took Chamber Summons No.887/2015 seeking to
implead the partnership firm and for setting aside the agreement dated
15.07.2014. She is entitled for various payments, which the builder
would have paid to defendant no.2 in respect of the monthly
compensation for temporary alternate accommodation and other
benefits given to the owners on redevelopment. However, the said
chamber summons was dismissed by this Court vide Order dated
06.09.2017. She has challenged the said order by filing Civil Writ
Petition No.14301/2017 and the same is pending before the Hon'ble
High Court for admission.
7 Further, it is averred that she is not dealing with the
amendments sought in the said chamber summons no.887/2015 in this
chamber summons. In Chamber Summons No.887/2014, the builder
appeared through advocate and filed two notarized agreements dated
15.07.2014 as alleged to have been executed between them and
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defendant no.2. At that time, when she took search, but she could not
find any registered documents. After the filing of the Writ Petition
before the Hon'ble High Court, she again made a search in the office of
Sub Registrar through agent in January 2018 and she came across one
agreement dated 26.04.2016 executed between Zara Habitats and
defendant no.2 registered as document no.3569/2016. She has
obtained certified copy on 26.02.2018. In the said agreement,
defendant no.2 has been described as the tenant of the original suit
shop premises and has been allotted new premises known as Horizon
admeasuring about 522 sq. ft. as permanent alternate accommodation
for the original premises being shop nos.1 and 2 Amin Manzil at the
same site.
8 Defendant no.2 in collusion with the builder had combined
two suit shop premises nos.1 and 2 totally admeasuring 492 sq. ft. in to
one shop premises of 522 sq. ft. Defendant no.2 has also been paid a
sum of Rs.6,40,400/ towards compensation for temporary alternate
accommodation, brokerage and shifting charges. The suit premises of
defendant no.1 firm and are the assets of the partnership firm of
defendant no.1.
9 The rent in respect of the suit premises was paid from the
income of the partnership firm of defendant no.1. All the payments
made to defendant no.2 in respect of the suit shop nos.1 and 2 in Amin
Manzil on redevelopment and the allotment of new shop no.1 on the
ground with mezzanine floor therein of the newly constructed building
known as Horizon in lie of the original suit shop no.1 and 2 in Amin
Manzil belongs to the partnership firm of defendant no.1,being the
assets of the said partnership firm of defendant no.1.
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10 The plaintiff is one of the partners of defendant no.1. She
is also having 50% right, title and interests, over the suit shops, as it is
the asset and property of the joint family business of defendant no.1
partnership firm and also in the newly allotted shop and the payment
made in respect of the suit shop premises on redevelopment. All these
subsequent events that have happened pending the present suit.
11 The plaintiff claimed share in the rental income from the
suit premises when it was let out and also objected to defendant no.2
from handing over the suit premises to the owner on redevelopment as
the plaintiff is also one of the partners of defendant no.1 firm.
However, by oversight, the plaintiff has not pleaded that she is having
50% right, title and interest in the assets of the partnership firm of
defendant no.1. In the pending suit, the suit premises have been
redeveloped, agreement for sale dated 26.04.2016 has been executed in
favour of defendant no.2 and new shop no.1 has been allotted on
ownership basis and various payments have been made to defendant
no.2 in respect of the suit premises. Due to these subsequent events,
the plaintiff is entitled to seek a declaration that the agreement dated
26.04.2016 executed between M/s. Zara Habitats and defendant no.2 is
not binding upon the plaintiff. After redevelopment, defendant no.2
has been given ownership shop no.1 on the ground floor with
mezzanine floor. The plaintiff has right, title and interests in the new
shops even after redevelopment. Thus, in the facts and circumstances,
she has taken out this chamber summons and prayed for allowing the
present chamber summons.
12 Defendant no.2 has filed affidavit in reply and opposed
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chamber summons. It is contended that the present chamber summons
has been taken out by the plaintiff for amendment in the suit after
chamber summons no.627/2018 has been taken out by defendant no.2
for the amendment in the written statement to bring subsequent events
on the record. Through present chamber summons, the plaintiff wanted
to incorporate prayers as to declaration that the plaintiff having 50%
right, title and interest in the shop nos.1 and 2, so also for the
declaration that the agreement dated 26.04.2016 between defendant
no.2 and Devolper M/s. Zara Habitats is null and void. The plaintiff is
challenging agreement dated 26.04.2016.
13 It is further contended that in any event firstly, the plaintiff
could have sought the relief of her alleged share are at the time of
institution of the suit. The plaintiff is blowing hot and cold, as the
plaintiff is claiming the benefit of the agreement daed 26.04.2016
between the plaintiff and the developer in one of the proposed prayer,
whereas in another prayer the same plaintiff is seeking declaration that
the agreement dated 26.04.2016 is not binding on her. Such types of
amendment cannot be allowed by the Court. The original shop nos.1
and 2 were tenanted properties, were in existence at the time of
institution of the suit. The claim of the plaintiff for 50% share will
affect a limitation, as the said prayer is sought to be inserted after
expiry of more than 3 years and it will affect the valuation and
jurisdiction.
14 It is further contended that such types of prayers cannot be
allowed by the Court by way of the amendment, as it will not only
change the nature of the suit, but also affects valuation, jurisdiction and
hit by limitation. Defendant no.2 has denied that there was joint family
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business of which his father was karta as alleged. Earlier Chamber
Summons No.887/2015 was rightly dismissed by the Court, wherein the
plaintiff sought to challenge the agreement dated 15.07.2014. The said
agreement was rightly entered by the said developer with defendant
no.2 being the occupant of old premises. Defendant no.2 has denied
that the suit premises is the assets of partnership firm as alleged.
Defendant no.2 was sole occupant of whole premises, his name was
certified by Maharashtra Housing Area Development Act in certified list
of occupants. Therefore, he is entitled to permanent alternate
accommodation, which was rightly or wrongly granted by the
developer. It is further denied that on account of this event, the
plaintiff is entitled to challenge agreement dated 26.04.2016. Thus,
prayed for dismissal of chamber summons.
15 The plaintiff has filed rejoinder to reply of defendant no.2.
The plaintiff has denied all allegations made by defendant no.2 in toto.
16 Heard the learned advocate for the plaintiff and the learned
advocate for the defendants. It appears that the plaintiff has filed this
suit for declaration that the plaintiff is a deemed partner of defendant
no.1 upon the death of her husband as per the clause 15 of the
Partnership Deed dated 01.12.2006 and her further entitlement to
continue the business of defendant no.1. Further, the plaintiff has also
prayed for accounts of the partnership business of defendant no.1
alongwith seeking relief of permanent injunction. It appears that
defendant no.2 has amended the written statement by way of chamber
summons. The plaintiff wanted to incorporate prayers as to declaration
that the plaintiff having 50% right, title and interest in the shop nos.1
and 2, so also for the declaration that the agreement dated 26.04.2016
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between defendant no.2 and Developer M/s. Zara Habitats is null and
void. The execution of Agreement dated 26.04.2016 is the subsequent
event and it occurred during the pendency of the suit.
17 The learned advocate for defendants argued that in view of
reliefs claimed by the plaintiff by way of proposed amendment, it is not
within limitation. According to him, the plaintiff cannot be permitted to
amend the plaint after the suit is barred by the limitation during the
pendency of the proceeding.
18 The learned advocate for the defendants has placed his
reliance in Muni Lal V/s. The Oriental Fire and General Insurance
Company and another reported in AIR 1996 S.C. 642.
19 Besides the learned advocate for the plaintiff has placed his
reliance in Pankaja and another V/s. Yellappa (D) by L.Rs and
others reported in AIR 2004 S.C. 4102. Further, he has placed his
reliance in Chandrakant Rambhau Khachane and others V/s.
Nandlal Govardhandas Chandak reported in 2018(3) ALL MR 374.
With respects, considering the principle held in the authorities cited by
the plaintiff, it is guideline to decide present chamber summons.
20 It appears that entering into agreement dated 26.04.2016 is
the subsequent event occurred during the pendency of the suit.
Further, it reveals that the reliefs claimed by the plaintiff by way of
proposed amendments are consonance with already claimed reliefs.
Further, she is claiming her 50% rights in the assets of partnership firm
of defendant no.1, including in the suit premises. Thus, it is not total
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new relief claimed by way of amendment, but it is consonance with
prayer clause 21(a) of the plaint.
21 Further, it reveals that yet trial has not been commenced.
If present chamber summons is allowed, nature of the suit will not
change and no prejudice would be caused to the defendants. It appears
from proposed amendment that even the plaintiff has valued the suit in
view of her proposed relief clause. Thus, in order to decide real
controversial issues involved in the suit on merits at once and to avoid
multiplicity of the proceedings, it is just and proper to allow the present
chamber summons in the interest of justice. But considering the delay
caused in taking out this chamber summons, it is necessary to impose
costs upon the plaintiff, while allowing the chamber summons. Thus,
Chamber Summons is to be allowed. With this, I proceed to pass the
following order:.
ORDER
Chamber Summons No. 871 of 2018 is made absolute in
terms of prayer clause (a) subject to the payment of costs of Rs.5,000/
(Rupees Five Thousand only) payable by the plaintiff to the defendants
on or before next date.
2 On payment of costs, the plaintiff is allowed to carry out
amendment as per schedule to the chamber summons and further
directed to pay deficit Court fees on or before next date.
3 After compliance, the plaintiff is directed to place on record
amended copy of the suit plaint and furnish amended copies of the suit
plaint to the defendants.
4 If the plaintiff fails to make compliance, chamber summons
stands dismissed automatically.
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5 Chamber Summons No.871 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 26/06/2018. City Civil Court,
Gr. Bombay.
Dictated on : 26/06/2018
Transcribed on : 27/06/2018
Signed on : 27/06/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27/06/2018 At 5.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
26/06/2018
Judgment/Order signed by P.O. on 27/06/2018
Judgment/Order uploaded on 27/06/2018
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