Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No. MHCC01-006736-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1198 OF 2019
IN
L. C. SUIT NO.113 OF 1991
(HIGH COURT SUIT NO.1864 OF 1991
Chandrabai N. Chotirmall (since deceased) ]
through her Legal heirs & Ors. ]
1.(a) Mrs. Veena J. Daswani ]
Indian Bazaar (Nigeria) Ltd.,6, Lawrence ]
Lane, Off Erko Matins Junction, ]
P.O. Box 2773, Lagos, Nigeria. ]
1.(b) Mr. Haresh N. Chotirmall ]
Urban Suites, #05-09, S. Hullet Road, ]
Singapore – 229161. ]
1.(c ) Mr. Bhagwan N. Chotirmall ]
Flat No.2, Ground Floor, Oval View, ]
150, Maharshi Karve Road, Opp. Oval ]
Maidan, Near Mantralaya, Mumbai – 20. ]
1.(d) Mr. Prakash N. Chotirmall ]
9, Ivanhoe Building, 4th floor, 139, ]
Foreshore Road, Opp. Sachivalaya ]
Gymkhana, Nariman Point, Mumbai -21 ]
1.(e) Mrs. Pushpa H. Daryanani ]
303, Rooprang Building, Juhu Versova ]
Link Road, Behind IDBI Bank, Andheri (W),]
Mumbai – 400 053. ]
M
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2. C & A International Pvt. Ltd. ]
A company incorporated under the ]
Companies Act 1956, having its registered ]
Office at 106/B, Sharda Chambers, 15, ]
New Marine Lines, Mumbai – 400 020. ] ...Plaintiffs
Versus
1.(a) Mrs. Maju Daswani ]
Residing at 12, Dalamal Apartments ]
Cuffe Parade, Mumbai – 400 020. ]
1.(b). Mr. Gautam Daswani ]
Residing at 202, Churchgate Chambers, ]
5, New Marine Lines, Mumbai – 400 020. ]
1.(c ). Mrs. Jaya Bhojwani Nee Daswani ]
Residing at Island Treasures, Port Zante ]
Basetter, St. Kitts, West Indies. ]
2. Aqua Properties Pvt. Ltd. ]
A Company incorporated under the ]
Companies Act, 1956, having its registered ]
Office at 202, Churchgate Chambers, ]
5, New Marine Lines, Mumbai 400 020. ] ...Defendants.
Appearances :-
Adv. Mr. Rajiv Jadhav for Plaintiff No. 1(d) & 2.
Adv. Bhavi Vora for plaintiff No.1(b).
Adv. Gandhi for defendant Nos. 1(a) to 1(c).
Adv. Isha Bapna for defendant No.2.
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CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 31st July, 2020
ORAL ORDER
1. The Plaintiff No.1(d) Mr. Prakash and plaintiff No.2 filed
this Chamber Summons to delete the names of plaintiff No.1(a) to 1(c )
and 1(e) and transposed them as defendant Nos.3 to 6.
2. In brief, it is contention of plaintiff that initially the suit
was pending before the Hon’ble High Court. Thereafter, due to change
in pecuniary jurisdiction the suit is transferred to this Court. Originally
two plaintiffs filed this suit. Plaintiff No.1 was Chandrabai and plaintiff
No.2 was C & A International Pvt. Ltd. Plaintiff No.1 Mrs. Chandrabai
died and plaintiff No.1(a) to 1(e) are brought on record as a legal heirs
of the deceased plaintiff No.1 Mrs. Chandrabai. Present Advocate of
plaintiff No.1(d) and 2 are only appearing. Other plaintiffs are not
represented by the present advocate. Therefore, plaintiff No.1(a) to
1(c) and 1(e) be transposed as defendant Nos.3 to 6. Plaintiff No.1(d)
arraigned as plaintiff.
3. Defendant No.1(a) to 1(c) filed reply. Defendant No.2 also
filed reply to the Chamber Summons.
4. In brief it is contention of defendant No.1(a) to 1(c) that
Chamber Summons is filed at belated stage. Plaintiff No.1(d) has
adopted dilatory tactic to harass the defendant. Original plaintiff
Chandrabai filed suit on 17.06.1991 against the defendant Nos.1 and 2.
They have filed written statement on 23.06.1993. The matter is
transferred to this Court from the Hon’ble High Court. Issues are
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framed on 31.10.2014. Defendant No.1 died on 24.11.2015. The legal
heirs of defendant No.1 are brought on record as defendant No.1(a) to
1(c). Plaintiff No.1 Mrs. Chandrabai died on 04.10.2016 and her L.R’s
are brought on record on 21.11.2016. Advocate Mr. Rajiv Jadhav filed
Vakalatnama on behalf of 1(d) and plaintiff No.2 only on 06.03.2017.
Remaining plaintiffs are not represented by Advocate Mr. Jadhav.
Therefore, the remaining plaintiffs ought to have been made
defendants. The said fact was pointed out by Advocate of defendants to
the Court. Therefore, this Chamber Summons is filed. The suit is at the
stage of evidence. This Chamber Summons is filed at belated stage,
hence Chamber Summons be dismissed with costs.
5. In brief, it is contention of defendant No.2 that this
Chamber Summons is filed at belated stage. Contentions of the
defendant No.2 is as good as point raised by defendant No.1(e) to 1(c).
Plaintiff No.1(a) to 1(c) and 1(e) do not want to prosecute the matter.
Therefore, necessary order be passed for non prosecution of the suit by
plaintiff No.1(a) to 1(c) and 1(e).
6. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff No.1(a) to 1(c) and 1(e)
can be deleted and can be transposed as
defendant Nos.3 to 6 ?
In the affirmative.
2. Whether plaintiff No.1(d) can be arraigned
as plaintiff ?
In the affirmative.
3. What Order ? Chamber Summons is
hereby allowed.
REASONS
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As to point Nos.1 to 3:
7. I have heard Learned Advocate appearing for plaintiff
No.1(d) and plaintiff No.2. I also heard Learned Advocate appearing
for defendant No.1(a) and 1(c ).
8. Perused plaint. It is pleaded that deceased original plaintiff
No.1 Chandrabai and plaintiff No.2 C & A International Pvt. Ltd. Co.
were partners of the firm known as M/s. C & A International. The said
firm was registered in or about 1981 in accordance with the terms of
Indian Partnership Act. Other partners of the said firm are defendants
in their personal capacity. Defendant No.1 (deceased) was major
shareholder as well as a Director of a Private Limited Company known
as M/s. Acqua Properties pvt. Ltd. The said M/s. C & A International
Firm was having partners (1). (Mrs. Chandrabai deceased Plaintiff
No.1), (2). Mrs. Manju Vishnu Daswani (wife of deceased original
defendant No.1) and (3). Prakash Chotirmall (son of the deceased
original plaintiff No.1) who later on brought on record as plaintiff
No.1(d) Prakash as one of the legal heirs of the deceased plaintiff No.1.
Mrs. Manju Daswani retired from the said firm and the said Acqua
properties Private Limited i.e. defendant No.2 was admitted as a partner
of the said firm. C & A International in her place with a share of 40% in
the profit and loss of the firm. The share of the plaintiff remained same
as before. The said firm C & A International again reconstituted by a
Deed executed on 01.09.1983. By the said Deed the said Prakash
retired from the said firm and defendant No.1 and the second plaintiff
were admitted as partners of the said firm. The constitution of the said
firm as on 01.09.1983 was No.1. Acqua Properties Private Limited 5%,
No.2. C & A International Private Limited 80%, No.3. Vishnu
Ramchandra Daswani (deceased original defendant No.1 3%, and
Chandrabai (deceased 1st plaintiff) 12%. The said Agreement dated
01.09.1983 is continued in force till the date of filing the plaint.
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9. The suit is filed for recovery of amount.
10. Perused Order 1 of Code of Civil Procedure it deals with
parties to the suit. Order 1 Rule 1 of Code of Civil Procedure deals with
who may be joined as plaintiff. Order 1 Rule 3 of Code of Civil
Procedure deals with who may be joined as defendants.
11. Perused Order 1 Rule 10 Sub Rule 1 of Code of Civil
Procedure. It deals with suit in name of wrong plaintiff. Order 1 Rule
10 Sub Rule 2 of Code of Civil Procedure deals with Court may strike
out or add as a parties.
12. After bringing the L.R.’s of deceased original plaintiff No.1
on record, it appears that plaintiff No.1(a) to 1(c) and 1(e) did not
appear in person or did not appear through advocate. It means they
did not appear. According to the Learned Advocate appearing for
plaintiff No.1(d) and the plaintiff No.2 no relief is claimed against the
said four legal heirs i.e. plaintiff No.1(a) to 1(c ) and 1(e). Hence, in
the facts and circumstances I am of the opinion that the names of the
plaintiff No.1(a) to 1(c) and 1(e) can be struck out and they can be
added as a party defendant because their presence before the Court is
necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in the suit. Hence
I record my findings on point No.1 and 2 in affirmative and proceed to
pass the following order.
ORDER
Chamber Summons No.1198/19 in Suit No.113/91 is hereby allowed as
under :
1. The name of plaintiff No.1(a) to 1(c) and 1(e) be struck out.
2. The said plaintiff No.1(a) to 1(c) and 1(e) are transposed as
defendant Nos.3 to 6.
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3. Plaintiff No.1(d) be arraigned as plaintiff.
4. Plaintiff No.1(d) and plaintiff No.2 are permitted to make
consequential amendment if any in the plaint.
5. Due to pandemic Covid-2019, it is not proper to direct plaintiff
No.1(d) and 2 to carry out amendment as directed above in the
plaint within 14 days from the date of this order.
6. Hence matter be posted for making amendment as directed above
on or before 25.09.2020 for compliance.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 31/07/2020 City Civil Court, Gr. MUMBAI
Dictated on : 31/07/2020.
Transcribed on : 07/08/2020.
Signed on : 07/08/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.08.2020 at 03.00 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 31.07.2020
Judgment/order signed by P.O. on 07.08.2020
Judgment/order uploaded on 07.08.2020
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