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Delhi High Court

Sunil Goel vs M/S Rational Enterprises & Others on 22 August, 2013

Author: Mukta Gupta

Bench: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+    CS(OS) 1975/2010

%                                            Reserved on: 5th August, 2013
                                             Decided on: 22nd August, 2013
        SUNIL GOEL                                                ..... Plaintiff
                                Through   Mr. S.N. Choudhri, Adv.
                                versus

    M/S RATIONAL ENTERPRISES & OTHERS        ..... Defendants
                  Through Mr. Dinesh Garg with Ms. Rachna
                          Aggarwal and Ms. Surbhi Sharma,
                          Advs. for D.2 & 3.
                          Ms. Shweta, Adv. for D.5 & 6.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
IA 15271/2011 (O. 1 R. 10 CPC & O.6 R.17 CPC by plaintiff)

1.

By this application under Order I Rule 10 & Order VI Rule 17 read with Section 151 CPC, the plaintiff seeks leave to amend the plaint. By way of amendment, plaintiff seeks to implead defendant Nos. 4 to 6 as parties and add Paras 20A to 20K after Para 20 of the original plaint reciting the necessary facts and consequently amending Para 25 of the plaint relating to the cause of action, Para 26 relating to the Court fees and prayer clause.

2. By the present suit the plaintiff has prayed for dissolution of partnership firm, rendition of accounts and recovery of the amount due and payable after rendition of accounts from the defendants. The plaintiff and defendant No.2&3 are brothers and partners in defendant No.1 firm. It is the case of the plaintiff that in the written statement of defendant No.2&3, it is alleged that in the year 2001-02 there was an alleged oral family settlement IA 15271/2011 in CS(OS) 1975/2010 Page 1 of 5 by mutual consent in front of their father Shri O.P. Goel wherein all three sons partitioned their business interest in Mumbai and Delhi. It is stated that the plaintiff and defendant No.2 dissolved their partnership business in Mumbai in the name and style of M/s. Sanil Industries and the plaintiff and defendants No2&3 dissolved their partnership business of defendant No.1 in Delhi during the life time of their father. Thereafter the defendant No.2&3 re-wrote a partnership deed of business under the name and style of M/s. Rational Enterprises removing the plaintiff there-from on 1st April, 2004. Further even this partnership firm was taken over with all the assets and liabilities on 31st July, 2009 by a Private Limited Company i.e. M/s. Rational Sales Private Limited vide a Take Over Agreement dated 1st August, 2009 wherein defendants No.2&3 are the Directors of the said Company. Thus, the partnership firm ceased to exist. It is further the case of defendant No.2&3 that flat No. 111, Mercantile House, K.G. Marg, Connaught Place, New Delhi of the defendant No.1 partnership firm has been sold by M/s. Rational Sales Private Limited to Shri Vikram Kataria and Sandeep Kataria for a total sale consideration of Rs. 87 lakhs. It is in view of this stand of defendants No.2&3 in the written statement which necessitated the plaintiff to file the present application seeking to implead the proposed defendants No.4 to 6 in addition to the existing defendant Nos.1 to 3 and incorporate consequential amendments in the paragraphs as mentioned above.

3. The objections of the learned counsel for the defendants to the proposed amendments are that the plaintiff is entitled to file a fresh suit against the proposed defendants and the amendment of the suit is not the remedy available to the Plaintiff. The addition of new defendants to the suit IA 15271/2011 in CS(OS) 1975/2010 Page 2 of 5 will only delay the trial as more time would be spent on completion of the pleadings, inspection of records etc. Reliance is placed on the decision of this Court in Chander Bati Vs. Om Prakash and Ors. 2010 II AD (DELHI)

587.

4. A perusal of the plaint and the proposed amendments show that the plaintiff has neither sought to withdraw an admission nor set up a new case. The case of the plaintiff was that the defendant No.1 was a partnership firm of the plaintiff and defendants No.2&3 and since the defendants No.2&3 who were primarily looking after defendant No.1 were hostile to the plaintiff, he sent a letter dated 10th July, 2009 requesting defendants No.2&3 to allow him to inspect the record and render proper accounts maintained by them. When the plaintiff realized that the defendants were committing some fraud, vide notice dated 8th November, 2009 he clearly informed the defendants that since the partnership entered into between them is 'partnership at Will', he did not want the partnership business of defendant No.1 to continue and wanted dissolution of the firm with immediate effect i.e. from the date of receipt of the said notice. Even in the amendments the case of the plaintiff continues to be that the defendant No.1 firm was never dissolved till he gave the notice as above and the transactions of the defendant No.2&3 were without the knowledge and consent of the plaintiff. Further no right, title or interest could be transferred by defendants No. 2 and

3.

5. The reliance of the learned counsel for the defendant on the decision of this Court in Chander Bati (supra) is misconceived. In the said case the plaintiff filed an application seeking amendment of the plaint which was IA 15271/2011 in CS(OS) 1975/2010 Page 3 of 5 partly allowed. The Trial Court rejected the amendment to the extent that the plaintiff therein claimed that he came to know of passing of decree dated 2nd May, 1984 at that time and thus he sought the consequential amendments. The Court held that the declaration of a decree to be null and void was a separate cause of action for the plaintiff therein and thus did not allow the amendments. This Court upholding the view of the Trial Court held that a certified copy of a judgment passed by a competent Court can be taken on record without a formal proof. The plaintiff could argue at final stage whether the judgment was binding on it or not and if the plaintiff wants to get the judgment to be declared as null and void the same was a separate cause of action for which a separate suit is required to be filed and no amendment can be permitted.

6. In the present case, the plaintiff is not seeking declaration of a judgment or decree to be null and void but only reiterating the facts already stated in the plaint and making additional averments in paras proposed to be added in view of the fresh facts which have come to the notice of the plaintiff subsequent to the filing of the written statement by defendant No.2&3. The amendments are necessary for final adjudication of the suit. Consequently, the proposed defendants are necessary to be as parties. Thus, I deem it fit to allow the application. Ordered accordingly.

7. Application is disposed of.

CS(OS) 1975/2010 Amended memo of parties and amended plaint are taken on record. Issue fresh summons in the suit to defendant No.4, returnable before learned Joint Registrar on 31st October, 2013.

Written statement to the amended plaint be filed by the defendants 2, 3, 5 and 6 within four weeks. Replication, if any, be filed in four weeks thereafter.

List on 12th December, 2013 the date already fixed.

(MUKTA GUPTA) AUGUST 22, 2013 'ga' IA 15271/2011 in CS(OS) 1975/2010 Page 5 of 5