Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.97218 in SU 21287
CNR No. MHCC010071192018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.972 OF 2018
IN
SUIT NO.212 OF 1987
(HIGH COURT SUIT NO.3502 OF 1987)
Madanlal Mehra & Ors. ...Plaintiffs.
V/s.
Om Prakash Sharma & Ors. ...Defendants.
Appearances:
Ld. Adv Ash Den for the plaintiffs.
Ld. Adv Rhea Rodrigues I/b M.T. Miskita & Co., for defendant no.2.
Ld. Adv Mr. R. A. Shah alongwith Advocate Nirav Marjadi I/b.
Mansukhlal Hiralal & Co. for defendant nos.1 and 3.
Ld. Adv Parag Shah for the noticee.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 28th NOVEMBER, 2018.
ORDER
1. This is chamber summons taken by plaintiff nos.4(a), 4(b), 5 and
8 for condonation of delay, setting aside abatement and to implead Ms.
Manorama Pravinchandra Vaghani, legal heir and representative of Mr.
P.R. Vaghani, the proprietor of defendant no.4.
2. Plaintiffs contention is that plaintiffs filed suit for declaration and
injunction relating to the property known as Pushp Kunj situated at 24
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B, Carmichael Road, Mumbai. Defendant no.4 is a proprietor of
erstwhile law firm M/s. Vaghani & Co. The right to sue survives against
the legal heir and representative of defendant no.4.
3. Plaintiffs further contention is that plaintiffs were unaware about
the demise of Mr. P.R. Vaghani, the proprietor of defendant no.4 and
became aware only after the statement of the Advocates of the
defendant nos.1 and 3 informing the Hon'ble Court about the same on
01.09.2017.
4. Plaintiffs further contention is that Advocate for plaintiffs also
issued a letter dated 26.10.2017 to the Advocate for defendant nos.1
and 3 requesting them to provide information relating to the heirs of
defendant no.4. In addition to the letter, the plaintiffs have also issued
letter dated 02.11.2017 to the Bombay Incorporated Law Society
requesting them to provide details regarding the legal heirs and
representatives of the deceased Mr. P.R. Vaghani. The Bombay
Incorporated Law Society in its reply dated 07.11.2017 informed the
Advocate for plaintiffs that they have no information of the name of
legal heirs of the deceased Mr. P.R. Vaghani. In the absence of any
information regarding the legal heirs of the deceased Mr. P.R. Vaghani,
the plaintiffs were constrained to take out Chamber Summons No.159
of 2018 to seek appropriate reliefs from the Hon'ble Court. Advocate
for proposed defendant appeared in the matter on 20.03.2018 and
produced a letter dated 07.03.2013 sent to the erstwhile Advocates of
the plaintiffs M/s. S. K. Srivastava & Co. Plaintiffs were unaware of the
said letter being sent to their former Advocates and got knowledge of
the same only on 20.03.2018. Pursuant to the hearing on 20.03.2018
before this Court, Advocate for the plaintiffs addressed a letter dated
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04.04.2018 to erstwhile Advocate of the plaintiffs, M/s. S. K. Srivastava
& Co., requesting them to confirm if the letter dated 07.03.2013 was
received by them informing them about the demise of the proprietor of
the defendant no.4 on 02.07.2012. M/s. S. K. Srivastava & Co., in its
reply dated 09.04.2018 informed the Advocate for the plaintiffs that
they had returned the papers and proceedings of the matter.
5. Plaintiffs further contention is that plaintiffs were unaware of the
death of Mr. P.R. Vaghani and were only made aware on 01.09.2017.
The delay if any caused in filing this chamber summons is not due to
negligence nor inaction and the plaintiffs have diligently pursued the
suit for the last 30 years. It is further contended that defendant no.4 is a
necessary party in the instant suit as defendant no.4 colluded with
defendant no.1 to defraud the plaintiffs. Application was made by
defendant no.1 to the Appropriate Authority under Chapter XX C of the
Income Tax Act on 19.01.1987 through defendant no.4 stating that
several persons had gathered and desired to form a Cooperative
Society for purchase of the said property was “for and on behalf of the
members of the proposed society” and the Appropriate Authority
granted the necessary NOC / certificate for the transfer of the property
in favour of defendant no.1. Plaintiffs further contention is that certain
documents which were obtained by the defendant no.1 from the
plaintiffs and were kept in escrow with defendant no.4. It is evident that
a fraud was committed by the defendant no.1 under the supervision of
defendant no.4. Plaintiffs have claimed a sum of Rs.71,00,000/ against
the defendant no.4 for injury and a sum of Rs.10,000/ with interest at
the rate of 18% per annum till the date of payment. In view of the
defendant no.4 is a necessary party to the suit. It further contended
that due to demise of Mr. P.R. Vaghani, the proprietor of defendant
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no.4, the legal heir and representative of defendant no.4 becomes a
necessary party to the suit hence, the plaintiffs have taken chamber
summons to implead Ms. Manorama Pravinchandra Vaghani, as legal
heir of defendant no.4.
6. Defendant nos.1 and 3 filed reply to chamber summons.
Defendants contention is that chamber summons is not maintainable as
plaintiff no.4(a), 4(b), 5 and 8 seek to reagitate the issues involved in
their earlier chamber summons being Chamber Summons No.159 of
2108 which the plaintiffs have purportedly withdrawn and abandoned
without obtaining the consent of the other plaintiffs and without
providing any just, valid, cogent or bonafide reason for withdrawl /
abandonment of the same. Plaintiffs are barred from filing the present
chamber summons as the plaintiffs have neither obtained leave of the
Hon'ble Court to file the present chamber summons before withdrawal
of earlier chamber summons. It further contended that chamber
summons is barred by law as the earlier chamber summons on the same
cause of action was withdrawn / abandoned by the plaintiffs without
the leave of the Court. It further contended that original plaintiffs and
then their Advocates on record had full knowledge of the death of Mr.
P.R. Vaghani which was available with them since 07.03.2013 if not
earlier, which is also evident from the roznama dated 27.10.2014.
There was a specific direction by the court to the Advocate for the
plaintiffs to take steps, which they have failed and neglected. The
plaintiffs are came with unclean hands and with malafide intentions to
serve their ulterior motives. It further contended that plaintiffs had filed
suit against M/s. Vaghani & Co., a sole proprietorship firm without
making Mr. P.R. Vaghani a party or including his name in the cause
title. It is settled position of law that the proprietorship firm is not a
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separate legal entity, it cannot be sued in its name and consequently
cannot be substituted by any legal heir of legal representative. The bare
perusal of the chamber summons makes it is evident that the plaintiffs
seeks to circumvent this fatal defect in the plaint under the guise of an
amendment.
7. Defendants further contention is that Chamber Summons no.159
of 2018 and present chamber summons ought to be dismissed on the
ground of undue long day and latches. It further contended that Mr.
P.R. Vaghani had expired on 02.07.2012 and the same was informed to
the plaintiffs by letter dated 07.03.213 addressed to the Advocate, then
on record i.e., M/s. S. K. Srivastava & Co. There is delay of more than
five years and not sufficiently explained hence, prayed for dismissal of
chamber summons.
8. The proposed defendant Ms.Manorama P. Vaghani, filed reply.
Her contention is that there was no privity of contract between the
plaintiffs and the defendant no.4 and defendant no.4 is sued for alleged
personal injury caused due to its lack of supervision in its professional
or personal capacity. It further contended that sole proprietor of
defendant no.4 expired on 02.07.2012. This fact was intimated to the
Advocate for plaintiffs M/s. S. K. Srivastava & Co. on 07.03.2013. The
said letter was received by Advocate for plaintiffs on 08.03.2013.
Despite the receipt of letter dated 07.03.2013 the plaintiffs failed and
neglected to take any steps in that regard for reasons better known to
the plaintiffs therefore, the suit has abated against the defendant no.4.
It further contended that the plaintiffs have not taken steps to bring
legal heirs of defendant no.4 within 90 days from 02.07.2012.
Thereafter, within 60 days not applied for setting aside abatement so,
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chamber summons is barred by law of limitation. It further contended
that roznama dated 27.10.2014 shows that the Advocate for plaintiffs
himself informed the Court that the defendant had expired and
accordingly, the matter adjourned to take appropriate steps by
12.11.2014.
9. It further contended that Order XXII Rule 1 of Code of Civil
Procedure, where one of the defendant dies the Court will make legal
representatives party to the suit and proceed with the suit only where
Right to Sue survives. Conversely where the right to sue does not
survive the Court is denuded from making legal representatives of the
deceased defendant a party to the suit and suit shall abate against the
deceased defendant. It further contended that documents have already
been deposited by the defendant no.4 and a letter from M/s. S. K.
Srivastavaa & Co., dated 04.04.2006 wherein the M/s. S. K. Srivastavaa
& Co, the Advocate for the plaintiffs had himself recorded that the
documents were lying with the Prothonotary & Senior Master of
Bombay High Court and he sought to take inspection of those
documents hence, this prayer can no longer sustain. It further
contended that as regards prayer (ii) the defendant no.4 never received
any money / consideration. The plaint also does not record any
consideration towards the sale was paid to defendant no.4. Defendant
no.4 has no right title interest in the suit property. It is plaintiffs case
that defendant no.4 was defendant no.1's Advocate. Hence, there was
no contract with the plaintiff and the claim against defendant no.4 is
only tortuous and towards personal injury. It is settled position that the
liability in tort dies with the alleged tort feasor / the defendant no.4.
Hence, no right to seek relief i.e., right to sue does not survive against
legal heirs of defendant no.4. It further contended that plaintiffs had
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filed Chamber Summons no.159 of 2018 against the defendants inter
alia praying for setting aside abatement of suit against defendant no.4.
The plaintiffs had served the chamber summons on 24.01.2018 to the
Noticee and the Noticee had on or before 20.03.2018 filed its reply to
the chamber summons. The plaintiffs after perusing the reply of the
Noticee to the chamber summons and after three hearings that were
attended by Advocates for all the parties to the Lis at the argument
stage withdrew / abandoned the Chamber Summons no.159 of 2018
without filing any withdrawal application or giving any cogent reason
for withdrawal.
10. It further contended that Noticee and the defendants have
opposed the withdrawal as recorded in roznama dated 07.06.2108. This
Hon'ble court allowed plaintiffs to file fresh chamber summons subject
to objections from the defendants. Therefore, no leave was granted by
the Court or leave if any granted was conditional and was subject to the
right of the defendants to oppose the same and without consideration of
facts and law. It further contended that plaintiffs carried out entire
proceedings in a very casual manner. Such conduct does not deserve
any reliefs much less the discretionary reliefs from this Court. With this,
prayed for dismissal of chamber summons.
11. Plaintiffs filed rejoinder to affidavit in reply to the chamber
summons filed by defendants as well as proposed defendants.
12. I have heard both the parties. They have filed written submissions
on record.
13. Advocate for plaintiffs submitted that under Order 22 Rule 4(5)
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of Code of Civil Procedure, states that in any case the plaintiff is failed
to make an application for the substitution of the legal heirs of the
defendant under the time period prescribed in the Limitation Act, the
Court shall considered the application under section 5 of the Limitation
Act. It further contended that Chamber Summons No.159 of 2018 was
taken only for calling the name of legal heirs of defendant no.4 by
issuing public notice and thereafter, the proposed defendant Ms.
Manorama Pravinchandra Vaghani appeared, the plaintiffs withdrawn
the Chamber Summons No.159 of 2018 with liberty to file fresh
chamber summons so, the present chamber summons is maintainable.
14. Advocate for plaintiffs further submitted that the plaintiffs came
to know about the death of defendant no.4 on 01.09.2017 when the
statement was made by Advocate for defendant nos.1 and 3 about the
death of defendant no.4. Thereafter, he immediately wrote a letter to
the Advocate for defendant nos.1 to 3 and Bombay Incorporated Law
Society getting information about the names of legal heirs but it did not
get the names of legal heirs so, he has taken Chamber Summons no.159
of 2018 and as soon as he got information about names of legal heirs of
defendant no.4 he filed present chamber summons therefore, there is
sufficient reason to condone delay and set aside abatement.
15. Advocate for plaintiffs submitted that the noticee filed say in
Chamber Summons no.159 of 2018, the plaintiffs have written a letter
to M/s. S. K. Srivasatav & Company calling upon them to inform about
the letter of noticee and they informed that all documents were handed
to plaintiffs. The plaintiffs are not aware about the death of defendant
no.4 prior to 01.09.2017 so, there is delay but there is sufficient reason
to condone delay and set aside abatement.
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16. Advocate for plaintiffs submitted that liberal approach is to be
taken for condoning delay and expression sufficient cause should be
given a liberal interpretation to ensure that substantial justice is done.
17. Advocate for defendant no.2 and proposed defendant submitted
that once Chamber Summons no.159 of 2018 is filed for setting aside
abatement against defendant no.4 and that chamber summons has
withdrawn then, the plaintiff cannot file fresh chamber summons.
18. Advocates for defendant no.2 and noticee submitted that the
proposed legal heirs informed by letter dated 07.03.2013 to plaintiffs
earlier Advocate M/s. S. K. Srivastavaa & Company about death of
defendant no.4 and the said letter was received on 08.03.2013 so,
plaintiffs earlier Advocate was having knowledge of death of defendant
no.4 then, plaintiffs have to take steps within prescribed period.
However, it is not taken so, suit is abated.
19. Advocate for defendants further submitted that personal injury
includes not only bodily injuries but also defamation and like proper
injuries. He also submitted that the suit or an action which has abated
cannot be continued thereafter even for the limited purpose of
recovering the costs suffered by the injured party. He relied upon Civil
Appeal No.131 of 1988 arising out of Special Leave Petition
No.7788 of 1986, decided on 13.01.1988, M. Veerappa V/s. Evelyn
Sequeira SCC 557.
20. Advocate for proposed legal representative submitted that
deceased defendant was sought to be fastened with liability on the
ground that he made misrepresentation and played fraud upon plaintiff
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with connivance of other defendant – Constituted a personal allegation
and claim, alleged liability of deceased would only tortuous and not
contractual – Estate of deceased defendant has not benefited – Action
against deceased not survives after his death. His legal heirs cannot be
brought on record. He relied upon Bhai Analijit Singh V/s. Mitsui & Co
Ltd., & Ors, 160 (2009) Delhi Law Times 231 (DB).
21. After perusal of Chamber Summons No.159 of 2018, it shows that
it was taken for the relief a) That the abatement of the suit, if any, as
against the defendant no.4 be set aside, b) The Hon'ble Court be
pleased to pass an order allowing the plaintiffs to call upon the legal
heirs of Mr. P.R. Vaghani, the Proprietor of M/s. Vaghani and Company
(defendant no.4) to enter their appearance in the captioned suit, c) the
Hon'ble court be pleased to pass an order allowing the plaintiff to
publish a notice in two newspaper viz., 'The Free Press Journal' in
English language and in 'Navshakti' in vernacular language calling upon
the legal heirs of defendant no.4 to appear in the matter, d) The
Hon'ble court be pleased to pass an order allowing the plaintiffs to
publish the notice by affixing it on the notice board of this court, e)
Delay in taking out the chamber summons if any be condoned. After
granting leave to register Chamber Summons no.159 of 2018, Ms.
Manorama Pravinchandra Vaghani appeared and filed say she is widow
of deceased Mr. P.R. Vaghani. She had taken the similar contentions
which are raised in the present chamber summons. The plaintiffs made
endorsement on 07.06.2018 in Chamber Summons No.159 of 2018 that
chamber summons be allowed to be withdrawn with liberty to file fresh.
On the same day, chamber summons disposed of as withdrawn and
plaintiffs tendered draft chamber summons i.e., present chamber
summons. On that day, Advocate for noticee as well as Advocate for
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defendant no1 objected for the same. In roznama, it is mentioned that
objection can be decided only after registration of chamber summons
and after its filing reply and after arguments. It shows on the day of
withdrawn of Chamber Summons no.159 of 2018 liberty to file fresh
not granted. However, it seems that in Chamber Summons no.159 of
2018 the name of legal heirs is not known and the plaintiffs seek the
order of the Court to issue public notice in newspaper calling upon the
legal heirs of defendant no.4 and accordingly, after publication of notice
in newspaper, widow of defendant no.4 appeared therefore, it seems
that as name of legal heirs is not mentioned in Chamber Summons
No.159 of 2018, the said chamber summons was withdrawn and on the
same day filed fresh chamber summons with the name of legal heirs of
defendant no.4 therefore, I find that present chamber summons is
maintainable.
22. From the roznama dated 27.10.2014 it shows that Advocate for
plaintiffs submitted that some of the defendants are no more hence,
plaintiffs are directed to take steps for bringing legal heirs if any so, it
shows that Advocate for plaintiffs aware about death of defendant no.4
from 27.10.2014 but not taken chamber summons for bringing legal
heirs on record. From roznama it also on 30.11.2015 Advocate K. R.
Shetty for plaintiffs present and filed vakalatnama and last chance was
granted to the plaintiffs for taking steps. From the letter dated
07.03.2013 of Manorama Pravinchandra Vaghani to Advocate S.K.
Srivasatav and Company shows that she informed about the death of
defendant no.4. The said letter was received by Advocate S. K.
Srivasatav and Company on 08.03.2013 then from the date of receipt of
letter dated 07.03.2013, Advocate for plaintiffs having knowledge of
death of defendant no.4 as well as name of legal heirs but has not taken
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steps so, it clearly shows that from the date of knowledge about the
death of defendant no.4, the plaintiffs have not taken steps to bring
legal heirs of defendant no.4 on record, hence, suit was automatically
abated after 90 days either from the death of defendant no.4 on
02.07.2012 or after receipt of letter dated 07.03.2013. The plaintiffs
have taken Chamber Summons no.159 of 2018 on 20.01.2018 after
abatement of suit against defendant no.4. The plaintiffs suppressed the
letter of widow of defendant no.4 informing about the death of
defendant no.4, I find that if Advocate S. K. Srivastav & Co. having
knowledge of name of widow of defendant no.4 then question does not
arise to take Chamber Summons no.159 of 2018 calling upon the legal
heirs of defendant no.4 by publishing notice in newspaper. This
conduct of the plaintiffs shows that plaintiffs having knowledge about
name of legal heirs of defendant no.4 has not taken steps to bring the
legal heirs on record in time so, I find that the plaintiffs have not
properly explained delay. There is no sufficient reason to condone
delay and to set aside abatement against defendant no.4 therefore,
chamber summons is liable to be rejected.
23. In this case, second contention of defendant no.2 and proposed
legal heirs of defendant no.4 is that the plaintiffs described the
defendant no.4 as a proprietary firm only and not mentioned the name
of proprietary. The plaintiffs ought to have mentioned the name of
proprietary and not proprietary firm. It further contended that the
plaintiffs have claiming tortuous liability against defendant no.4 i.e.,
personal injury caused by defendant no.4 then after death of defendant
no.4 right to sue not survive against the legal heirs.
24. Advocate for plaintiffs submitted that right to sue survive against
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legal heirs of defendant.
25. I perused the plaint. Plaintiffs have filed suit against defendant
nos.1 to 4 alleging that prior to execution Deed of Conveyance dated
21.04.1996 (1) Shri Pragji Jamnadas Dossa, 2) Paramanand Jamnadas
Dossa and 30 Anandji Jamnadas Dossa were the owners of an
immovable property consisting of a piece or parcel of land admeasuring
2169.72 sq. yards, or thereabouts situate lying and being at 24
Carmichael Road, in the Fort of Bombay with buildings and structures
standing thereon. Defendant no.1 is architect and interalia as a builder.
The vendors executed the said Deed of Conveyance dated 21.04.1986 in
respect of the said property for a consideration of Rs.71,00,000/ in
favour of defendant no.1. Defendant no.1 had taken the said
conveyance for and on behalf of the proposed members of Sankalp
Premises Cooperative Society Limited (Proposed) of which the
plaintiffs are promoter members alongwith the defendant no.1.
According to plaintiffs, defendant no.1 nor defendant no.3 have any
right title or interest in respect of the said property or any part thereof.
It was a part of the development scheme and common understanding
between the plaintiffs and defendant no.1. It further contended that on
the representation made through M/s. Vaghani and Company,
Advocates and Solicitors as set out in the said letter dated 19th January,
the Appropriate Authority granted the necessary certificate / N.O.C., for
transfer of the said property in favour of defendant no.1 obviously in his
capacity as a Chief Promoter elected by all the promoters and members
of the said proposed Sankalp Society. In short, plaintiffs case is that
defendant no.4 in collusion with defendant nos.1 to 3 prepared the
documents. Plaintiffs contention is that defendant no.1 is bound to
render account in respect of the said dealings and purchase of the said
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property for Rs.71 lakhs and the various amounts so collected from the
other members from time to time. According to plaintiff, defendant
no.4 is involved in this case since beginning and prepared some
documents which is against the interest of plaintiffs so, the plaintiffs
have claiming damages of Rs.71 lakhs for the injuries and damages
caused to the plaintiffs. I find that defendant no.4 being Advocate after
his death cause of action does not survive against his widow so, plaintiff
cannot bring legal heirs of defendant no.4 on record. With this,
chamber summons is liable to be dismissed. Accordingly, I proceed to
pass the following order :
O R D E R
1. Chamber Summons No.972 of 2018 is hereby dismissed.
2. Chamber Summons No.972 of 2018 stands disposed of
accordingly.
( KALPANA S. HORE )
Judge,
Dated : 28/11/2018 City Civil Court, Gr. MUMBAI
Dictated on : 28/11/2018
Transcribed on : 28/11/2018
Signed on : 28/11/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
30.11.2018 4.28 p.m. ARUN ANNAMALAI MUDALIYAR
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HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
28.11.2018
JUDGEMENT /ORDER signed by
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JUDGEMENT /ORDER uploaded
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