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Darshan Singh Kochhar Vs. S. Jaswant Singh Kochhar and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberI.A. Nos. 2805 of 1976, 2538 of 1977 and 200 of 1978
Judge
Reported inAIR1978Delhi304; 14(1978)DLT6B
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantDarshan Singh Kochhar
RespondentS. Jaswant Singh Kochhar and ors.
Appellant Advocate G.S. Vohra, Adv
Respondent Advocate Arun Mohan and ; K.S. Bindra, Advs.
Cases ReferredState of Rajasthan v. Rao Dhir Singh
Excerpt:
.....avoiding multiplicity of legal proceedings - further, the partnership would no longer carry on its liquor business - in view of the circumstances, it was ruled that the plaintiff's request for partnership, appeared justified -accordingly, the application was granted permission under consideration but subject to the conditions that the suit for dissolution of partnership would be deemed to have been instituted from the date of amendment application - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of..........would be damaged against and made recoverable from him and should it be necessary to dissolve the liquor business of the firm, this may also be done. (a) (a) a perpetual injunction be issued against the defendant no. 1, restraining him from using or carrying on any business in. shop no. 206, chandni chowk, delhi and. the two go downs, situated in gali qasim jan and gali keep wail in ballimaran, delhi which were being used hitherto by m/s. b.- dadabhoy for its business to the exclusion of the that of her plaintiff or for any purpose other than firm. (a) (c) a perpetual injunction be issued against the defendant no. 1 restraining him for drawing upon or using the funds of the firm for his own purposes or purposes other than those of the firm and also a similar injunction be issued.....
Judgment:
ORDER

1. This order, will dispose of three applications (I As. 2M/76, 2538/77 and 200/78) made by the .plaintiffs under 0. 6, R. 17 and S. 151 of the Civil P. C. for the amendment of his plaint

2. The suit No. 445 of 197%. plaint whereof is sought to be amended was Instituted by Sardar Darshan Singh Kochhar as stated by way of its heading , rendition of accounts declaration and permanent Injunction!. new prayer clause, numbered -as para. 119, reads as follows.-

11 19. The Hon We Court be pleased to pass decree in favor of the plaintiff and against the defendants to the following

effect:-

(a) The accounts' of the firm Ws. B. Dadabhoy be taken from 1-7-67 till 30-6-76 and the defendant No. 1 be call-ed upon to redder, the same, and whatever is found lie to the plaintiff from any of the defend would be damaged against and made recoverable from him and should it be necessary to dissolve the liquor business of the firm, this may also be done.

(a)

(a) A perpetual Injunction be Issued against the defendant No. 1, restraining him from using or carrying on any business in. shop No. 206, Chandni Chowk, Delhi and. the two go downs, situated in Gali Qasim Jan and Gali Keep Wail in Ballimaran, Delhi which were being Used hitherto by M/s. B.- Dadabhoy for its business to the exclusion of the that of her Plaintiff or for any purpose other than firm.

(a)

(c) A perpetual Injunction be issued against the defendant No. 1 restraining him for drawing upon or using the funds of the firm for his own purposes or purposes other than those of the firm and also a similar injunction be issued regarding the liquor stocks.

A It be declared that the entire furniture, fixtures and other articles of which list Is annexed hereto are the Property of the firm and the defendant Wo.1, as such, does not own them.,,

3. The Plaintiff filed his first application (I.A. No. 2805) for amendment on 8-12,49% and caved the permission of the Court to Introduce changes in his pleadings at different places but it is agreed between the parties that the one really, important point is that of relief. On the subject it was submitted that the words and should it be necessary be done? appearing In clause (a) at page 12 of the plaint (Le. paragraph 19 reproduced above) _ be deleted and the following words be substituted in their place.-

'The defendants be made to account for profit on account of the subsequent user Of the assets of the erstwhile firm M/s..B. Dadabhoy, as well, and otherwise compels the plaintiff for the same.'

the plaintiff wanted to tinker with cls. (b) and (c) at para. 19 -of the plaint too, but Those changes again are conceded by the Parties, to be of little significance and need- riot be dwelt upon, After a reply to this application was filed by the defendants the plaintiff realized that the application aforesaid suffered from certain errors and he made his' second application U. A. 2538) dated 26-7-77 (filed on 1-8,-1917) to remedy the same. This application was accompanied by a list of the, desired amendments and the same were comprised in nine paras. Significantly, however, no alteration was asked for in the prayer clause beyond that for which a request had been made in L A. 2805 referred to above. On 12-12-19,77 Darshan Singh Kochhar got prepared his third application (I.A. 200,/ 78) for amendment. It was stated in this application inter alias that the following words be allowed to be added in para 21(a) of the amended plaint:-

'The partnership be dissolved as at 1-7-76. and'.

4. All the three applications aforesaid have been opposed by the defendants as mala fide and the omissions made by the plaintiff at the beginning are stated to be intentional,

5. The parties are partners of the firm, Messrs. B. Dadabhoy, and as the original plaint would show without a shadow of doubt, all what the plaintiff wanted In the first instance was that the firm aforesaid should continue functioning, that defendant No. -1 be called upon to render accounts thereof from 1-7-1967 till 30-6-197,6, that a decree be passed in favor of the plaintiff for whatever be found due to him and that should it be necessary to dissolve the liquor business of the firm this may be done. Dealing In liquor is not the only activity of Messrs B. Dadabhoy though it may not be its major activity. It is not denied by the Plaintiff's counsel that there could be no dissolution of one part of the business of a firm and dissolution Of the firm was admittedly not asked for in the Plaint. Darshan Singh's preference was for the continuance of the partnership, even of its dealings in liquor, and what he really desired was that he should get his true share of the Profits made by the firm, and to dissociate himself from the liquor business alone and that too only if the aforesaid end could not be achieved.

6. At the time the suit was instituted the Plaintiff's grievance was that Jaswant Singh Kochhar was carrying On his personal liquor business at the cost of the partnership but Jaswant Singh Deft. I refuted this contention and urged that the bid given by him on 20-6-19,76 was to secure L-1 and/or L-2 license in the name of the firm and on 23-6-19,76 he obtained the L-2 liquor license for and in the name of the firm. According to the Plaintiff liquor licenses were auctioned again in the third week of April 1976 (1977) for the period 21-4-1977 to 31-31978 and this ti;4e Jaswant Singh figured as the successful bidder in his individual Capacity arid as a necessary consequence the liquor license of Messrs B. Dadabhoy came to an end. He wanted to delete paragraph 14 of the plaint through the second application (I.A. 2538) and substitute in its place the words:-

'The plaintiff wants to dissolve the partnership of M/s B. Dadabhoy and does not want the carry on any business in partnership with the defendants. Indeed, the liquor business came to an end on 30-6-1976 and it had to be dissolved.' But as already stated, no prayer for the dissolution of the firm was still made: a proposal for the introduction of the relief came only through the last application (LA. 200/78) filed, on 12-12-1977.

7. The defendants contend that the plaintiff did not ask for dissolution of the partnership because he hoped the firm would be making decent profits in its liquor venture and he did not want to deprive himself of his share of the same. When he found in due course of time that it was in the red, he came forward with the plea for its dissolution believing that the amendment would be effective from the date of the institution of the suit and he would get rid of his liability in respect of the losses incurred through this device. Another argument advanced on behalf of the defendants at the Bar is 1%at the partnership agreement between the parties provides for reference of the disputes connected with their business to -arbitration and if the amendment takes effect from the time of the filing of the original plaint they' would be debarred from asking for the stay of the suit for dissolution of the partnership under S. 34 of the Arbitration Act, 1940. According to them no reasons for the amendment asked for have -been stated and because there is an ulterior motive behind the applications the same should be rejected.

8. The reasons for the material amendment have of course been given. At the time the suit was instituted the plaintiff thought Jaswant Singh was carrying an the liquor business for his personal gain. Jaswant Singh presented, however, quite a contrary view of the situation and submitted that the liquor business Continued to be done for the partners. The plaintiff urged in the subsequent stages of the proceedings that the rules did not permit a liquor license being issued in the name of a firm unless the partnership deed or a letter of authority signed by all the partners was produced by the bidder before the Excise authorities and that Jaswant Singh could not manage to do. At the time of the second auction he offered the bid in his own name which was accepted and Messrs. 13. Dadabhoy consequently went out of the liquor business. Since according to the Plaintiff the liquor business was the Principal activity of the firm he did not feel like continuing as a partner of the firm and made, in view of the changed circumstances a request for the dis. solution of the partnership itself.

9. It was laid down by the Supreme Court in Nair Service Society Ltd. v. K. C. Alexander : [1968]3SCR163 that a suit must be tried on the original cause of action and If circumstances change they can form the subject of some other proceedings but added that there were a few exceptions to this proposition; sometimes it happens that the original relief claimed becomes inappropriate and an amendment of the in may be allowed in such cases. The circumstances which prevailed an the date the suit was filed have no doubt undergone a change and an amendment will obviously result in avoiding multiplicity of legal proceedings- Moreover, it is a fact that the' Partnership can no longer carry on its liquor business, which business was of undeniable importance. The _ plaintiffs asking for the dissolution of the partners would not4, appear, thereforee, to be totally unjust-I filed. In Jai Jai Ram Manobar Lal v. National 13uMng Material Supply, Gurgaon AIR 1911 Sc 1267 their 1,ordships of the Supreme Court made the following observations (at p. 1269):

'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of 9mie mistake, negligence, inadvertence or even infraction of the rules of procedure. Tin Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first emission, and, however late tie proposed - amendment, the amendment may be allowed if It learn be made -without in justice to the other side.'

10. The counsel for the defendants has quoted Reserves Bank of India v. Rump krishme Govind : AIR1976SC830 to buttress his contention that a belated application for amended should not be allowed. But in that case the suit had run the whole course of its trial and the amendments had been allowed by the High Court at the stage of the second appeal. In the matter before me issues have yet to be framed and the aforesaid authority would not, there fore apply, The other case referred to by the defendants' counsel, M/s. Modi Spinning & Weaving Mills Co. Ltd. v. Mis, Ladha Ram & Co., : [1977]1SCR728 dealt with the amendment of the written statement which if allowed would have displaced the plaintiff's suit and deprived him of a valuable right already accrued to him. The defendant wanted as a matter of fact to set up an entirely different and new case and that the court considered to be, unjust,

11. The partnership between the parties is, indisputably a partnership at will. The Partner wanting dissolution, of this type of partnership can secure his objective by giving a notice as provided in sub-section (1) of S. 43. of the Partnership Act. No such motive has at any time been given by Darshan Singh to his partners. The mare institutions of the suit, the Supreme Court held in Banners Das v. Kawhi Ram, : [1964]1SCR316 does Dot an count to notice of dissolution within the meaning of S. 43(1) of the Partnership Act and. the date of service of a summons accompanied by a copy of the Plant in Such a suit cannot be regarded as 'the date of the dissolution of the Partnership. The date of dissolution will be, their Lordships observed, the date fated in the preliminary decree passed Under 0. 20 R. 15 and even if it is as Burned that the term 'notice' in S. 43(2) is wide enough to include within it a plaint filed in a suit for dissolution of partnership, the sub-section itself provides that the firm would be deemed to be d1swIved as from the 'date of communication of the notice The defendants plea is that there has been no dissolution of t1w firm, Messrs B. Dadabhoy, so far and the plaintiff cannot absolve himself of the losses suffered by the firm during the Tendency of the suit by incorporating a belated prayer for the dissolution ad the firm and having the amendment made effective from the date of the institutions of the suit. The plaintiffs counsel on the other hand, contends %a at least from 1-7-19-76 the liquor business has been conducted by Jaswant Singh Kochhar on his own and he (the plaintiff) cannot be burdened with the liabilities incurred by that business subsequent to that date. As a matter of fact, I am not at the, moment deter mining the date of the dissolution of the partnership nor shutting out the plain tiff's claim that he would not bear the brunt of the set-back suffered by the liquor business from the date it has been run by Jaswant Singh exclusively. But, inclined as I am to allow the amendment for the reasons stated I am duty bound at the same time to ensure that it is done on just terms. In the case reported in State of Rajasthan v. Rao Dhir Singh 0065/1972 when claim for a certain amount was put forward by the plaintiff - for the first tirne in the amendment application the court allowed the amendment but ordered that the claim would relate back to the date when the amendment application was made and not to the date of the original suit so that the defendants' plea of limitation was not destroyed. In the case of Raghvir Prashad etc. v. Chet Ram 1971 C Lj 612, the court granted the prayer for amendment because it considered the same to be necessary for adjudication of the real matter in controversy but directed, to protect the interest of the defendants at the same time, that the amended suit shall be treated as having been filed on the date on which the application for amendment was given.

12. Rule 17 of 0. 6 of the Civil P. C. reads as under :-

'R. 17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in c6ntroversy between the parties.'

13.. In view of the above provisions If the plaintiff is allowed to amend his plaint it must be done on such terms as should be just. I would, thereforee, grant the plaintiffs applications under consideration, but subject to the conditions that the suit so far as the relief for dis-1 solution of the partnership is concerned, shall be deemed to' have been instituted from the date of I.A.200/78 Le. 12,12-11977, and the plaintiff shall pay Rs. 250/as costs to the defendants.

14. The amended plaint, shall be filed on 10--2-1979..

15. Application allowed.


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