Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010098702019
CNR NO.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1747 OF 2019
IN
SUMMARY SUIT NO.7129 OF 2004
Huseni Roshanali Tinawala Proprietary ]
of M/s.Calma Enterprises ]… Plaintiff
V/s.
Ahmed Oomerbhoy & Ors. ]
And Nadeem Majid Oomerbhoy ]...Defendants.
Appearance:
Learned Advocate Mr. Abbas Zohair for plaintiff.
Learned Advocate Ms. Seema Hunnurkar for defendant No.1 to 7.
Learned Advocate Mr. Ambekar for applicant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 23rd March, 2021
ORAL ORDER
1. Applicant took out this Chamber Summons to direct the
plaintiff to amend the plaint by deleting the name of defendant No.2
and adding the applicant as defendant No.2A to the suit.
MHCC010098702019
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2. Perused Chamber Summons, affidavit in support of
Chamber Summons, reply of the plaintiff to the Chamber Summons,
reply of defendant No.1 and 7 to the Chamber Summons and rejoinder
of the applicant to the reply of the plaintiff.
3. Heard Learned Advocate Mr. Ganesh Ambekar for the
applicant, Learned Advocate Mr. Abbas Zohair for plaintiff and Learned
Advocate Ms. Seema Hunnurkar for defendant No.1 to 7.
4. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1 Whether plaintiff can be directed to add
as applicant to the suit as defendant
No.2A ?
In the affirmative.
2 What Order ? Chamber Summons
is allowed as per
final order.
REASONS
As to point No.1 and 2.
5. Mr. Abid Yasin choudhary, Constituted Attorney of the
applicant filed affidavit in support of the Chamber Summons.
6. In brief, it is contention of the applicant that applicant is
son of the original defendant No.2. The original defendant No.2 died
on 11.05.2010 leaving behind his wife Mrs. Nargis Oomerbhoy,
daughter Ms. Heena Oomerbhoy and applicant as son being heir and
legal representative of the deceased.
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7. The original defendant No.2 Majid Oomerbhoy filed suit
No.4913 of 2000 before the Hon’ble Bombay High Court for dissolution
and accounts of the firm of M/s. Ahmed Oomerbhoy and the said suit is
pending. Plaintiff is well aware about the pendency of the said suit.
Plaintiff representated through their advocates in the said Suit No.4913
of 2000. Plaintiff intentionally did not bring the applicant on record as
heir of the deceased defendant No.2. The Hon’ble High Court passed
Order in the present suit and appointed Court Receiver High Court of
Bombay in respect of defendant No.1 i.e. M/s. Ahmed Oomerbhoy being
the suit firm.
8. The Hon’ble High Court passed Order dated 09.01.2001,
15.01.2001 and 19.01.2001 and held/ directed that purchases on behalf
of the suit firm i.e. Ahmed Oomerbhoy could only be made with consent
of all partners. However, the consent of the original defendant No.2 has
never taken. Therefore, the deceased defendant No.2 and his heirs are
not liable to make any payment to the suppliers.
9. The Hon’ble High Court as per Order dated 05.08.2003
passed in the High Court Suit No.4913 of 2000 directed the Court
Receiver High Court Bomaby to defend all the suits on behalf of the
defendant No.1 but inspite of request the Court Receiver failed to
defend the various suits including the present suit.
10. The plaintiff deliberately did not join heirs of the defendant
No.2 in the present suit with a view to deprive them of their legal
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rights. The plaintiff is acting in collusion and connivance with the
defendant Nos.3 to 6 in order to make illegal gains for themselves.
11. The applicant alongwith his mother and sisters are entitled
to an aggregate 45% in the suit firm i.e. defendant No.1. The Court
Receiver High Court Bombay i.e. defendant No.7 is not diligently
looking the affairs of the present suit. Therefore, plaintiff be directed to
add applicant as a party defendant to this suit.
12. In brief, it is contention of the plaintiff that the Chamber
Summons is misuse of process of law. There is no prayer for
condonation of delay. The suit is filed for the recovery of amount
towards the goods sold and supplied and delivered to the defendant
No.1 firm. Defendant No.3 to 6 were partners of the defendant No.1
firm. Defendant No.7 is Court Receiver appointed by the Hon’ble
Bombay High Court.
13. Applicant has filed this Chamber Summons after a period of
8 years. Plaintiff was not aware of the demise of defendant No.2. The
heirs of the original defendant No.2 who are attending the suit No.4913
of 2000 have never informed the plaintiff or their Advocates, the names
and adresses of the heirs of the original defendant No.2. As per the
provisions of Order 30 Rule 4 of the Code of Civil Procedure, it is not
required to make the heirs of the deceased partners as a party to the
present suit. Plaintiff is not a party to the Suit No.4913 of 2000.
Applicant is in habit of obstructing the course of Justice by filing
frivolous applications. Hence, Chamber Summons be dismissed.
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14. In brief, it is contention of the defendant No.1 and 7 that
they have no objection if applicant is made party defendant to the suit.
15. The applicant denied the contentions raised in the reply of
the plaintiff and reiterated contentions raised in the Chamber
Summons.
16. The Learned Advocate appearing for plaintiff relied upon
citation of the Hon’ble Bombay High Court, Bench at Nagpur in the case
of Manohar Kashinath Vyawahare Vs. Dattatraya son of Krishnarao
Pitale & Anr. in Letters Patent Appeal No.16 of 2009 in Writ Petition
No.5200 of 2008 decided on 14.01.2010. He submitted that as per
Order 30 Rule 4 of the Code of Civil Procedure, it is not necessary to
add applicant as a party defendant to the suit.
17. Para No.7 and 8 of cited case Manohar Kashinath
Vyawahare Vs. Dattatraya son of Krishnarao Pitale & Anr. are as under:
“Para 7 -The Learned Advocate Mr.
Gaikwad very strongly relied upon reported
judgment of Hon’ble Supreme Court in the
case of Anokhe Lal Vs. Radhamohan Bansal
& Ors. (Air 1997 SC 2571). This Court has
perused the facts and law as discussed in
this Judgment of Hon’ble Supreme Court.
It shall suffice to refer to the gist of the
judgment of Hon’ble Supreme Court which
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is narrated as follows:-
(a) It was a case of a suit for eviction by
landlord against the tenant-partnership
firm.
(b) Legal heirs of one of the deceased
partners moved application under Order I,
Rule 10, Civil Procedure Code and lost in
the Trial Court as well as in the Revision
Application before District Court.
(c) The heirs took a second round of
litigation titling the claim under Rule 4 of
Order XXX, Civil Procedure Code, which
was rejected by the Trial Court and allowed
by Single Judge of High Court.
(d) In a challenge to said impleadment,
Hon’ble Supreme Court held that the trial
ought not be relegated by impleadment
since Rule 4 of Order-xxx of Civil Procedure
Code provides that suit can be continued
without impleadment of heir of any party
when suit could have been instituted or
continued in absence of such deceased
person.”
18. Perused Order 1 Rule 10 of the Code of Civil Procedure. As
per Order 1 Rule 10 Sub Rule 2 of the Code of Civil Procedure the Court
may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the
Court to be just, order that the name of any party improperly joined,
whether as plaintiff or defendant, be struck out, and that the name of
any person who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be necessary in
order to enable the Court effectually and completely to adjudicate upon
and settle all the question involved in the suit, be added.
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19. Perused Order 30 Rule 4 Sub Rule 1 and 2 of the Code of
Civil Procedure. They are as under:
“(1) Notwithstanding anything contained in
section 45 of the Indian Contract Act, 1872
(9 of 1872), where two or more persons may
sue or be sued in the name of a firm under
the foregoing provisions and any of such
persons dies, whether befodre the institution
or during the pendency of any suit, it shall
not be necessary to join the legal
representative of the deceased as a party to
the suit.
(2) Nothing in sub-rule (1) shall limit or
otherwise affect any right which the legal
representative of the deceased may have -
(a) to apply to be made a party to the suit,
or
(b) to enforce any claim against the survivor
or survivors.”
20. As per Order 30 Rule 4 Sub Rule 1 of the Code of Civil
Procedure suit can be proceeded without joining legal representative of
the deceased as party to the suit.
21. As per Order 30 Rule 4 Sub Rule 2 of the Code of Civil
Procedure, the provisions of Order 30 Rule 4 Sub Rule 1 is not binding
when the legal representatives of deceased apply to be made a party to
the suit.
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22. Therefore, I am of the considered view that plaintiff can be
directed to add applicant as party defendants to the suit as defendant
No.2A and plaintiff can be permitted to make consequential amendment
if any, in the plaint. Hence, I record my findings to point No.1 in the
affirmative and point No.2 Chamber Summons is allowed as per final
order. Hence, following order:
ORDER
Chamber Summons no. 1747 of 2019 in Suit no. 7129 of 2004 is
allowed as under-
1. Plaintiff is directed to add applicant Nadeem Majid Oomerbhoy as
party defendant no. 2a to the Plaint.
2. Plaintiff is permitted to delete the name of defendant no.2 Majid
since deceased.
3. Plaintiff is permitted to amend the plaint by making consequential
amendment if any, in the plaint.
4. Due to Corona Virus Covid-19 Pandemic, it is not proper to direct
plaintiff to carry out amendment within 14 days from the date of order.
5. Plaintiff is directed to carry out amendment as directed above till
next date.
6. Plaintiff is directed to provide copy of the plaint and documents
relied in the Plaint to the added defendant no.2a Nadeem Majid
Oomerbhoy after carrying out amendment as directed above.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 23/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 23.03.2021
Transcribed on : 06.05.2021
P.O. is on leave from
30.03.2021 to 01.04.2021
and due to lock down of
one week i.e. from 10-04-2021 to 18-04-2021
Checked on :06.05.2021
Signed on :10.05.2021 ( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.05.2021 at 12.50 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 23.03.2021
Judgment/order signed by P.O. on 10.05.2021
Judgment/order uploaded on 10.05.2021
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