Final Order 1

Order Details: Chamber summons
Pdf Text: CH/S.1797/2019 IN SUIT 43/2019 1
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1797 OF 2019
IN
SUMMARY SUIT NO. 43 of 2019
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC010102912019)
M/s.Shankeshwara Food Product Pvt.Ltd. ...Plaintiff
Versus
Mr.Chandra Mohan ...Defendant
And
M/s.Bishamber Dayal Chandra Mohan ...Respondent
Appearances:
Advocate Mr.Kukreja for the Plaintiff.
Advocate Ms. Vrushali Bhoir for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 27th JANUARY 2020
O R D E R
1. Read the chamber summons, affidavit in support of it, reply and
rejoinder in respect of the same.
2. Heard Ld. advocates on behalf of both the parties. Perused the
record.
3. Considering the material on record and submissions made on
behalf of the parties, points arise for determination along with my
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findings thereon for the reasons recorded are as under:
POINTS FINDINGS
1.Whether proposed amendment is
necessary to determine material
controversy between the parties?
In the Affirmative.
2.Whether the nature of the suit will
change?
In the Negative.
3. Whether the plaintiff is entitled to
the amendments as prayed?
In the Affirmative.
4. What order? As per final order.
REASONS
AS TO POINTS NO.1 TO 4.
4. The suit as filed described the defendant as 'Chandra Mohan,
proprietor of M/s.Bishamber Dayal Chandra Mohan'. The defendant
filed reply to the summons for judgment contending that defendant is a
partner of M/s. Bishamber Dayal Chandra Mohan, in other words, the
defendant is not a proprietary concern but a partnership firm.
Thereafter, the plaintiff took out present chamber summons requesting
to grant permission to add partnership firm Bishamber Dayal Chandra
Mohan as defendant No.2 and describe present defendant as defendant
No.1 as partner of Bishamber Dayal Chandra Mohan partner ship firm
and consequent amendments thereon. The defendant resisted the same
chamber summons.
5. Ld.advocate on behalf of the plaintiff argued that amendment as
prayed is of very simple nature. Plaintiff was not aware that the
defendant is a partnership firm. The agreement entered between the
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parties did not describe the defendant as partnership firm. However, for
the first time in reply to the summons for judgment the defendant
contended that it is a partnership firm. Thus, in good faith and by
bonafide mistake the plaintiff described the defendant as proprietary
concern. Same needs to be corrected. Therefore, he requested to allow
the chamber summons and grant permission to carry out the
amendment by adding defendant No.2.
6. On the other hand, Ld. advocate on behalf of the defendant
argued that partnership firm has not been made party in the original
suit. Now if the present chamber summons is allowed and the
partnership firm is made party, it will be admitting a time barred claim.
He argued that the claim against the partnership firm is barred by
passage of time therefore, due to bar of limitation the amendment
cannot be allowed. It is also argued that granting amendment will
change the nature of the suit . Therefore, Ld. advocate on behalf of the
defendant urged to reject the chamber summons.
7. It will be appropriate to mention here that admittedly notice was
issued to proposed defendant No.2 that is 'Bishamber Dayal Chandra
Mohan a partnership firm'. Despite service of notice said partnership
firm did not file any reply.
8. The copy of agreement between the parties is filed on record.
Having perused the same agreement/contract dated 27/10/2015, the
defendant has been descried as ' Bishamber Dayal Chandra Mohan'. The
contract is on the letter head of Bishamber Dayal Chandra Mohan. It
has been signed by the seller as 'Bishamber Dayal Chandra Mohan
authorised signatory Chandra Mohan'. Thus, contract dated
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27/10/2015 does not specify anywhere that the defendant is a
partnership firm and Chandra Mohan is partner of the said firm. Thus,
the plaintiff would have no grounds to know that defendant is a
partnership firm. The record also reveals that the plaintiff had issued
presuit notice dated 09/07/2018. There is no dispute that the notice
was served on the defendant. The notice shows as addressed to
'Bishamber Dayal Chandra Mohan', Proprietor Chandra Mohan'. Thus,
in the pre suit notice the plaintiff described the defendant as proprietary
concern. Although the notice was served on the defendant, the
defendant did not reply to the plaintiff that it is a partnership firm and
not a sole proprietary concern. In this background, the plaintiff will
definitely be under bonafide impression that the defendant is
proprietary concern. The plaintiff will have no reason to know that the
defendant is a partnership firm. Thus, the description of the defendant
as given by the plaintiff is clearly under misconception which was in
good faith and a bonafide.
9. Once this court came to the conclusion that the description of the
defendant as given by the plaintiff is a mistaken description in good
faith, the same mistake must be allowed to be rectified by carrying out
amendment as continuing with wrong description of the defendant will
create several legal problems in further proceedings. Thus, the
amendment is necessary to determine material controversy between the
parties.
10. One of the contentions of the defendant is that granting the
amendment will bring within cognizance of this court a suit which has
been barred by law. However, this court in this background, must take
recourse to section 21(1) of the Limitation Act which prescribes as
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“Where after the institution of a suit, a new plaintiff or defendant is
substituted or added, the suit shall, as regards him, be deemed to have
been instituted when he was so made a party.
Provided that where the Court is satisfied that the omission to
include a new plaintiff or defendant was due to a mistake made in good
faith it may direct that the suit as regards such plaintiff or defendant
shall be deemed to have been instituted on any earlier date''.
11. Thus, by virtue of the proviso below section 21(1), when the
mistake is under good faith the court may direct that the suit as regards
such newly added plaintiff or defendant shall be deemed to have been
instituted on any earlier date. This court is of the opinion that having
regard to the background of the present case, this is a fit case to confer
benefit of proviso of section 21(1) on the plaintiff while granting the
amendment.
12. Even if the amendment is allowed, the suit will remain to be for
recovery of amount and in the background that partner of Bishamber
Dayal Chandra Mohan is already on record, though described as
proprietor, there will be no change in the nature of suit It is just and
proper to allow the amendment as prayed by adding the partnership
firm as defendant No.2. Hence, point No. 1 is answered in the
affirmative, point No.2 is answered in the negative, point No.3 is
answered in the affirmative and in answer to point No.4 order as
follows is passed.
ORDER
1. The Chamber Summons No.1797 of 2019 is allowed as under:
2. Permission is granted to the plaintiff to carry out amendment in
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the plaint as prayed as per the schedule by adding defendant No.2,
subject to costs of Rs.1000/(Rs.One Thousand only)to be paid to the
defendant.
3. The plaintiff to carry out the amendment and comply the order
on or before next date.
4. The suit as regards newly added defendant No.2 Bishamber Dayal
Chandra Mohan partnership firm shall be deemed to have been
instituted on the date of filing of the suit itself that is 22/11/2018.
5. The Chamber Summons No. 1797/2019 is disposed accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 27/01/2020 City Civil Court,Gr. Mumbai
Dictated on : 27/01/2020
Transcribed on : 28/01/2020
Signed on : 01/02/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/02/2020 at 3.30p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 27/01/2020
Judgment/Order signed by P.O. on 01/02/2020
Judgment/Order uploaded on 05/02/2020
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