Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010085892019
CNR NO. MHCC010085892019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1523 OF 2019
IN
SUIT NO.7569 OF 2002
(HIGH COURT SUIT NO.1463 OF 2002)
1. Stryker India Private Limited & Anr. ] … Plaintiffs
V/s.
Mr. Deepak Modi & Ors. ] ...Defendants
Appearances :-
Ld. Adv. Ms. Roshni Naik for plaintiffs.
Ld. Adv. Ms. Neeta Parikh for defendants.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 10th February, 2022
ORAL ORDER
1. The present Chamber Summons is taken out by the plaintiff
for carrying out amendment in plaint and Summons for Judgment and
other consequential amendment.
-- 1 of 5 --
- 2 - CH-S 1523/2019 in Suit 7569/2002
2. It was submitted by the plaintiff that he had filed the suit
against the defendant for recovery of the amount of Rs.5,13,758.37/-
alongwith further interest. After service of Writ of Summons plaintiff
had taken out Summons for Judgment No.505 of 2003. The defendant
No.2 in its reply to said Summons for Judgment revealed that defendant
No.1 is a sole proprietary concern and not a partnership firm. The
plaintiff withdrew the said Summons for Judgment with liberty to file
fresh. The plaintiff thereafter took out Chamber Summons No.892 of
2005 to correct the name and description of the defendant, the said
Chamber Summons was allowed on 05.01.2017. The plaintiff
thereafter took out another Summons for Judgment No.191 of 2017,
defendant No.2 in its reply stated that he is not the sole proprietor of
the defendant No.1 and one Mrs. Rashmi Deepak Modi is the sole
proprietor of defendant No.1. The defendant No.2 had not revealed the
same earlier and deliberately delayed the proceedings. Therefore, the
plaintiff had now taken out this Chamber Summons for carrying out
amendment in the cause title in plaint. The plaintiff intends to add the
names of proprietor Deepak Modi/Rashmi Deepak Modi and
accordingly further amendment in the plaint and Summons for
Judgment.
3. The defendant No.2 filed its reply and opposed the
Chamber Summons. It was submitted that the present Chamber
Summons are taken out only to delay the proceedings. The present
Chamber Summons is an abuse of process of law and is barred by Law
of Limitation. In Chamber Summons No.892 of 2005 the plaintiff
sought the same relief. The plaintiff was already aware that Rashmi
Modi was the proprietor but still he had not added her as a party and
-- 2 of 5 --
- 3 - CH-S 1523/2019 in Suit 7569/2002
therefore, this application being not filed within the limitation it be
dismissed.
4. Heard Learned Advocate for plaintiff and defendant. Also
perused the proceedings. Admittedly in the reply of earlier Summons
for Judgment No.191 of 2017 the defendant No.2 stated that the
defendant is not a partnership firm and it is a proprietory firm. It was
also mentioned that Smt. Rashmi Deepak Modi is the sole proprietor of
defendant No.1. The documents were also annexed with the same. The
plaintiff filed the present Chamber Summons and intends to add the
names of the present defendant No.2 alongwith Rashmi Deepak Modi.
It seems that the relief has been sought against the proprietor of the
defendant No.1 and since it is a sole proprietory concern, the names of
two persons as proprietor can not be allowed to be amended.
Moreover, until and unless the actual proprietor is added as a party to
the suit, the proposed amendment in the plaint and Summons for
Judgment cannot be allowed. Since, the sole proprietor is not added as
a party amendment to the said effect cannot be added. The present
Chamber Summons is only for amendment in the cause title of the
plaint and Summons for Judgment. There is no prayer for addition of
the Rashmi Deepak Modi as a party defendant to the suit and therefore,
the proposed amendment cannot be allowed as sole proprietor is not
added as a defendant. Hence, I proceed to pass the following Order:
ORDER
1. Chamber Summons No. 1523 of 2019 is dismissed.
2. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 10-02-2022 City Civil Court, Gr. MUMBAI
-- 3 of 5 --
- 4 - CH-S 1523/2019 in Suit 7569/2002
Dictated on : 10-02-2022
Transcribed on : 10-02-2022
checked on : 10-02-2022
Signed on : 10-02-2022
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
-- 4 of 5 --
- 5 - CH-S 1523/2019 in Suit 7569/2002
ERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
10.02.2022 at 03.55 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge ( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Date of pronouncement of judgment/order 10.02.2022
Judgment/order signed by P.O. on 10.02.2022
Judgment/order uploaded on 10.02.2022
-- 5 of 5 --