Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
1 Date 12.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 2332 of 2019
IN
SUIT NO. 9070 of 1995
(H.C. SUIT NO. 3699 OF 1995)
(CNR NO.MHCC010135042019)
Eruch Boman Khaver alias
Erach Boman Khaver .. Plaintiff /
Org. Plaintiff no. 2.
Versus
Manilal Premji Gala .. Since Deceased.
Khodabad H. Irani .. Original defendants
And
Mrs. Ruxmani Manilal Gala & Ors. .. Respondents.
Appearances :
Adv.Nainesh Amin for plaintiff.
Adv.Nirav J. Marjadi i/b Mansukhlal Hiralal and Company for
defendant no.1(b).
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge.
C.R. No. : 7
Dated : 12.02.2020
ORDER
1. The plaintiff has filed instant Chamber Summons for carrying
out necessary amendment as per schedule in the plaint.
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
2 Date 12.02.2020
2. It is contended by the plaintiff that he is sole surviving
partner of the suit firm and also one of the legal representative of
deceased Mr. Boman P. Irani who was also partner in the suit firm
M/s. Roopsons. The suit is filed by original plaintiff for dissolution
of partnership firm and other ancillary relief. It is contended by
the plaintiff that his name has been shown in the plaint as per the
name mentioned in the partnership Deed dated 01.04.1990 i.e.
“Eruch Boman Khaver”.
3. It is submitted by the plaintiff that vide order dated
21.07.2017 passed by Hon’ble High Court in A.O. No. 797 of 2016
with C.A. No. 1002 of 2016 and A.O. No. 798 of 2016 with C.A.
No. 1001 of 2016 and A.O. No. 887 of 2016, defendant no. 1(b)
was permitted to continue with possession of suit premises as an
agent of Court Receiver subject to his depositing royalty amount
which was fixed at Rs. 1,20,000/.
4. Therefore, the plaintiff has objected the Valuation Report by
filing C.A. No. 1030 of 2019 in A.O. No. 887 of 2017 and prayed
for fixing the fresh royalty at the higher amount. The Hon’ble
High Court vide, its letter dated 17.09.2019 appointed another
Valuer and fresh Valuation Report called by the Hon’ble High
Court. After considering the said Valuation Report, the Hon’ble
High Court directed defendant no. 1 (b) to deposit Rs. 3,75,000/
with the Court Receiver as adhoc royalty w.e.f. September 2019
till final royalty is fixed by the Court. By the said order, Hon’ble
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
3 Date 12.02.2020
High Court also directed the Court Receiver to pay the plaintiff an
amount of Rs. 1,87,500/ upon furnishing undertaking to bring
back such amount as may be ordered by the Court.
5. It is contended by the plaintiff that pursuant to the order
dated 17.09.2019, he has approached the Court Receiver for
remittance of sum of Rs. 1,87,500/ from September 2019
alongwith his KYC documents. However, on 25.10.2019, the
Court Receiver informed that amount can not be disbursed in the
name of plaintiff as the bank documents shown his name as “Erach
Boman Khavar” and not as “Eruch Boman Khavar” as mentioned in
the proceedings. Therefore, the plaintiff realize that he has to
amend the title clause in respect of correction of his name.
Therefore, the plaintiff filed instant Chamber Summons.
6. The Chamber Summons is opposed by the defendant no.
1(b) by filing his say. It is contended by the defendant 1(b) that
the plaintiff without order of the Court, presented instant Chamber
Summons in the alias name as “Erach Boman Khavar”. It is further
contended by the defendant no. 1(b) that trial has begin and
hence in view of the order 6 Rule 17 of CPC, the plaintiff can not
amend the plaint. The plaintiff failed to explain due diligence at
his instance in carrying out the aforesaid amendment prior to
commencement of the trial. Hence, defendant prayed for rejection
of the Chamber Summons.
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
4 Date 12.02.2020
7. Heard both the sides. Perused Chamber Summons and reply.
It is specific contention of the plaintiff that in view of the order
dated 17.09.2019 when he has submitted application for
permission to withdraw sum of Rs. 1,87,500/ to the Court
Receiver and the Court Receiver vide its letter dated 25.10.2019
informed that there is a difference in the name of plaintiff, he
realize that he has to change the title clause. It is specifically
contended by the plaintiff that “Eruch Boman Khaver” and “Erach
Boman Khaver” are not two different persons. As his name was
appearing in the partnership Deed as Eruch Boman Khaver,
therefore, in the title clause his name is appearing accordingly.
However, due to the objection and also of the fact that his KYC
documents such as Aadhar Card, Pan Card, Passport contains his
name as “Erach Boman Khaver” which cause him to file instant
Chamber Summons. It is further argued by the plaintiff that in th
event, at the end of the trial if he would succeed and would be
entitled to receive monitory benefit, in that eventuality the same
problem would arise. Therefore, it is necessary to allow instant
Chamber Summons.
8. It is further argued by the plaintiff that no prejudice would
be caused to the defendant and defendant is also not disputing his
identity. Therefore, present Chamber Summons needs to be
allowed. In support of the case of the plaintiff, he has relied on
the Judgment of Hon’ble Apex Court reported in AIR 2018 SC
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
5 Date 12.02.2020
2635 in case of Gurubakhsh Singh & Ors. V/s. Buta Singh And
Anr.
9. Per contra Ld. Advocate for defendant no. 1(b) contended
that the plaintiff claim to be legal heir of one of the partner namely
Boman P. Irani, whereas in KYC document of the plaintiff his
surname is appearing as Khaver. The plaintiff failed to explain the
aforesaid variations in the surname. It is further contended that
the plaintiff failed to explain due diligence on his part for seeking
proposed amendment prior to the commencement of the trial.
Hence, this Court have no jurisdiction at all to allow the present
Chamber Summons. In support of his contention he has relied
judgment of Hon’ble Apex Court in case of Pandit Malhari
Mahale v/s. Monika Pandit Mahale & Ors. in Civil Appeal No.
189 of 2020.
10. It appears from the pleadings of the plaintiff that he came to
know for the first time that there is necessity for correction of his
name when Court Receiver issued letter dated 25.10.2019. The
plaintiff, in view of his name appearing in the partnership Deed
has mentioned his name as “Eruch Boman Khaver”. In my view,
the reason assigned by the plaintiff in not filing amendment
application on earlier point of time is appearing to be cogent.
Moreover, defendant did not dispute the identity of the plaintiff.
As far as regarding variation in he surname of plaintiff is
concerned, the defendant failed to plead the same in his reply. He
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
6 Date 12.02.2020
for the first time raised the objection of variation in surname, in
argument, hence, plaintiff had no occasion to give explanation for
the same. However, during course of argument, the defendant
tender Gazette Notification about the change of his surname.
Hence, the objection of defendant has no substance.
11. It is well settled law that the amendment can be allowed
after commencement of the trial, if same is necessary to decide the
dispute between the parties and if no prejudice would cause to the
defendant.
12. Hon’ble Apex Court, in case of Rameshkumar Agrawal
V/s. Rajmal Export Pvt. Ltd. & Ors. was culled down certain
basic principles for amendment of pleading which are enumerated
as under :
“1. Whether the amendment sought is imperative for
proper and effective adjudication of the case.
2. Whether the application for amendment is bonafied or
malafide.
3. The amendment should not caused any prejudice to the
other side which can not be compensated adquately in
terms of money.
4. Refusing amendment would in fact lead to injustice or
lead to multiple litigation.
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
7 Date 12.02.2020
5. Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the
case.
6. As a general rule, the court should deline amendments
if a fresh suit on the amended claims would be barred by
limitation on the date of application.”
13. Hon’ble Apex Court further held that “ordinarily Court should
not refused bonafide, legitimate, honest and necessary amendments
and should never allow malafide and dishonest amendments.
Although the amendments can not be claimed as a matter of right
and under all circumstances, but instead Court should not adopt a
hypertechnical approach.”
14. Thus, after considering the law laid down by the Hon’ble
Supreme Court and after considering the facts f the present case,
in my view, in the event, if the plaintiff would succeed in the suit,
the aforesaid decree remain redundant in the absence of correction
in the name of the plaintiff. In my view, no prejudice would be
cause to the defendant if the proposed amendment is allowed.
Hence, in my view, the Chamber Summons needs to be allowed in
the interest of justice. Thus, I proceed to pass the following
order :
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
8 Date 12.02.2020
ORDER
1. Chamber Summons No. 2332 of 2019 is hereby allowed in
terms of prayer clause (a).
2. Plaintiff to carry out necessary amendment as per schedule
within 14 days from the date of order.
3. Parties to bear their own cost.
4. Chamber Summons No. 2332 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge
City Civil & Sessions Court
Dated : 12.02.2020 Gr. Bombay
Dictated on : 12.02.2020
Transcribed on : 12.02.2020
Draft submitted on : 12.02.2020
Checked on : 14.02.2020
Signed on : 14.02.2020
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Chamber Summons 2332-19 In Suit No. 9070-1995
H.C. SUIT NO. 3699-1995
9 Date 12.02.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/02/2020 at 12.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
12/02/2020
JUDGMENT/ORDER signed by
P.O. on
14/02/2020
JUDGMENT/ORDER uploaded
on
15/02/2020
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