1 CHS 203/09 A/w 766/10 & 7/07 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.203 OF 2009 IN SUIT NO.2656 OF 2006 Harsukhrai Narbheram Kothari : Plaintiff. Versus Dipak Nandlal Shah and others : Defendants. And Krishna Developers Private Ltd. : Respondents. And. Srla Harsukh Kothari and ors. : Applicants. ALONG WITH CHAMBER SUMMONS NO.766 OF 2010 IN SUIT NO.2656 OF 2006 Harsukhrai Narbheram Kothari : Plaintiff. Versus Dipak Nandlal Shah and others : Defendants. And Srla Harsukh Kothari and ors. : Applicants. And Varsha Yogesh Shah and ors. : Respondents. ALONG WITH CHAMBER SUMMONS NO.7 OF 2007 IN SUIT NO.2656 OF 2006 Harsukhrai Narbheram Kothari : Plaintiff. Versus Dipak Nandlal Shah and others : Defendants. And Krishna Developers Private Ltd. : Respondents. Mr.Vishal Kanade i/by Mahimtura & Co. for the Plaintiff. Mr.Mangesh Parte i/by Deepak Chitnis-Chiparikar & Co. for the Defendant Nos. 12 and 13. Mr. R M Vasudeo for the Defendant No.14. 2 CHS 203/09 A/w 766/10 & 7/07 CORAM:- R M SAVANT, J DATED :- MARCH 15, 2011. P.C. 1 By the Chamber Summons No.203 of 2009, the Applicants, who are the heirs of the original Plaintiff, seeks to bring themselves on record in place of the original Plaintiff who has died on 1/11/2008. The Applicants seek consequential relief by way of prayer clause (b) to the said Chamber Summons. 2 By the Chamber Summons No.766 of 2010 the Applicants seek setting aside abatement que Defendant No.10 and pray for condonation of delay of 285 days in filing the application for bringing the heirs of Defendant No.10 on record. It is required to be noted that the above suit as originally filed was for dissolution of the partnership firm. In the said suit certain reliefs by way of prayer clause (e) in respect of Development Agreement dated 29/6/2004 and 20/10/2005 have been claimed. The suit has been filed by the original Plaintiff in his capacity as Karta of one Harsukhrai N Kothari HUF which is a partner of Calico Industrial Engineers in respect of which partnership the relief of dissolution is sought. 3 In so far the above Chamber Summons Nos. 203 of 2009 and 766 of 2010 are concerned, Para 6 on page 12 of the affidavit in support of the Chamber Summons No. 203 of 2009 is material and is reproduced herein under :- 3 CHS 203/09 A/w 766/10 & 7/07 “6. The Plaintiff had filed the above suit in the capacity as karta of Harsukhrai N Kothari – HUF, a partner of Calico Industrial Engineers (‘the Firm’). This was a bonafide mistake that occurred because the Plaintiff had impressed his share in the Firm with the character of joint family property belonging to Harsukhrai N Kothari – HUF. For the purposes of income tax the Plaintiff’s share in the Firm was treated as belonging to Harsukhrai N Kothari – HUF, and the Plaintiff, as the karta, representing Harsukhrai N Kothari – HUF. However, from the point of view of the Firm, the share of partnership stands in the name of Harsukhrai Narbheram Kothari and the Hindu undivided family and its other members have no standing. In the circumstances, it is necessary to correct the mistake as to the capactiy in which the Plaintiff had filed the above suit.” 4 In the teeth of the said averments, in my view, the said Chamber Summons as filed in the present form, are misconceived and the Applicants would have to file Chamber Summons to seek a relief in terms of the averments made in part 6 and also seek a prayer to be brought on record in the said Chamber Summons. Unless the relief in terms of the averment in Paras 6 (underlined portion) as above is sought the Applicants would not be entitled to claim the relief as claimed in both the above Chamber Summons. In the teeth of the said averments as contained in Para 6, the reliance placed by the learned counsel for the Applicants on the judgment of Division Bench of the Culcutta High Court in the case of Chandradip Prosad v/s Jagannath Agarwalla reported in AIR 1978 Calcutta 157 is misplaced as the Applicants would have to first get the capacity in which the Plaintiff has filed the suit corrected. 4 CHS 203/09 A/w 766/10 & 7/07 5 The Chamber Summons Nos. 203 of 2009 and 766 of 2010 are therefore rejected with liberty to file afresh claiming appropriate reliefs. If fresh Chamber Summons are filed, needless to say that the instant order would not come in the way of the Applicants from prosecuting the same or the Respondents in opposing the same. 6 In so far as Chamber Summons No.7 of 2007 is concerned, the same is filed seeking amendment of the plaint so as to incorporate the subsequent events. Since the Suit has been filed by the Constituted Attorney of the original Plaintiff, on the death of the original Plaintiff the Power of Attorney has come to an end. The learned counsel for the Plaintiff fairly conceded that in view of the death of the original Plaintiff, the above Chamber Summons cannot be proceeded with. The above Chamber Summons No.7 of 2007 is disposed of as not pressed for the present. (R M SAVANT, J)