Bombay High Court
Vinay Arvind Rao And 2 Ors vs Arjun Atma Sippy And 23 Ors on 23 April, 2019
Bench: Pradeep Nandrajog, N.M.Jamdar
1 4 COMAPL 158 - 2019 in CHSCD 999-18......doc
Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO. 158 OF 2019
in
CHAMBER SUMMONS NO. 999 OF 2018
in
COMMERCIAL SUIT NO. 885 OF 2018
ALONG WITH
NOTICE OF MOTION (L) NO. 346 OF 2019.
Vinay Arvind Rao and others .. Appellants / Applicants
Vs
Arjun Atma Sippy and others .. Respondents
Mr.Karl Shroff a/w Mr.Rohan Sawant, Mr.Rahul Hingmire,
Mr.Swanand Tarde and Ms.Dhanashree Badade i/b Vis Legis Law
Practice, for Appellants.
Mr.Ranbir Singh a/w Mr.H.N.Vakil i/b Mulla & Mullaa & Craigie
Blunt & Caroe, for Respondent No.1.
Mr.Munaf Vijree a/w Mr.Nausher Kohli & Ms.Nipa P. i/b ABH Law
LLP, for Respondent No.9.
Mr.Brijesh Shukla, for Respondent Nos.18 and 19.
CORAM : PRADEEP NANDRAJOG, C.J. &
N.M.JAMDAR, J.
Date : 23 April, 2019.
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1. Heard learned counsel for the parties. Challenge is to an order dated 5 February 2019 impleading one Indru Advani, the executor of the Will of late Atma Hasmatrai Sippy as a Co-Plaintiff and impleading Respondent Nos.1 to 18 in the Application as Defendant Nos.9 to 26 as a consequence of permitting the Plaintiff to amend the plaint by incorporating facts which arose subsequent to the filing of the Suit.
2. The Plaintiff was the son of Atma H.Sippy who was the partner of a firm impleaded as the first Defendant. The remaining partner is impleaded as Defendant No.2.
3. Needless to state the dispute related to the assets of the firm upon the death of one of its partner.
4. In view of the Will executed by the deceased an objection was raised to the maintainability of the Suit in the absence of the executor. To overcome the said objection the application was filed to implead the executor as the Co-Plaintiff. On the issue of subsequent facts it was pleaded that inspite of the interim orders passed, in violation of said orders requiring status-quo to be maintained the immovable property was encumbered in that Agreements to Sell were ::: Uploaded on - 25/04/2019 ::: Downloaded on - 25/04/2019 22:21:54 :::
3 4 COMAPL 158 - 2019 in CHSCD 999-18......doc executed in favour of the persons proposed to be impleaded as Defendants. The pleading sought to be incorporated pursuant to the amendment was a reference to the Sale Agreements.
5. As noted above the impugned order has allowed the amendment and the impleadment.
6. On the issue of maintainability of the Appeal we note the decision of the Supreme Court reported as 2018(4) ALL MR 912 (S.C.) - Kandla Export Corporation & Anr. Vs M/s.OCI Corporation & Anr. The decision holds and we refer to paragraph 15, that an order passed by the Commercial Court or a Commercial Division would be appeal only if it falls in the species of the orders enumerated in Order XLIII of the Code of Civil Procedure and Section 37 of the Arbitration and Conciliation Act, 1996. Instant Suit does not relate to an arbitration dispute and thus only such orders would be appealable if they fall within Order XLIII of the Code of Civil Procedure, 1908.
7. The Appeal is dismissed as not maintainable.
8. In view of the dismissal of the Appeal as above, the Notice of Motion does not survive and is disposed of accordingly.
N.M.JAMDAR, J. CHIEF JUSTICE
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