Allowed

M/S. Sangmeshwar Trading Co. ,Gen. Merchant and Commission Agent v. M/S. Vyankatesh Farming Thru Partner Laxman Gunaji Narvekar

Bombay HC24 Jan 2023WP/993/2019

Case brief

AI extract

What is this about?

Single judge Writ Petition quashing the Trial Court's order rejecting an application to amend the plaint to disclose a fresh suit instituted after withdrawing an earlier one due to partnership registration, and setting aside an additional limitation issue borne out of the rejected amendment.

What did the court decide?

Order dated 10.12.2018 (Exhibit-64) quashed and set aside. Additional issue of limitation dated 28.09.2018 set aside.

M/S. Sangmeshwar Trading Co. ,Gen. Merchant… — Civil Procedure and Limitation | Bombay HC (2023)

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15.wp.993.19 & 994.19.doc

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 993 OF 2019

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M/s. Sangmeshwawr Trading Company General
Merchant & Commission Agent..Petitioner
Versus
M/s. Vyankatesh Farming through
Partner Laxman Gunaji Narvekar..Respondent

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WITH WRIT PETITION NO. 994 OF 2019

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M/s. Sangmeshwawr Trading Company General
Merchant & Commission Agent..Petitioner
Versus
M/s. Vyankatesh Farming through
Partner Laxman Gunaji Narvekar..Respondent

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Mr. Vijay Killedar, Advocate for Petitioner.

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Mr. Padmanabh Pise, Advocate for Respondent.

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CORAM:MILIND N. JADHAV, J.
DATE:JANUARY 24, 2023.

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P.C.:

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1. Heard Mr. Killedar, learned Advocate appearing for

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Petitioner and Mr. Pise, learned Advocate appearing for Respondent
for some time.

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2. The impugned order dated 10.12.2018 has been passed below Exhibit–64 filed by Plaintiff seeking amendment of the plaint. The amendment was to be effect that Plaintiff had filed an earlier Suit namely Special Civil Suit No.108 of 2015 and the same was withdrawn

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15.wp.993.19 & 994.19.doc

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on 09.03.2017 with specific condition to file a new Suit. The issue for
withdrawal was necessitated in view of the fact that the registration of
Plaintiff’s firm was effected on 28.03.2016 i.e. subsequent to the filing
of the earlier Suit and in view of the express bar under the Indian
Partnership Act, Plaintiff sought liberty which was granted by the
learned Trial Court. Accordingly, the fresh Suit was instituted on
13.03.2017.

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3. The written statement was filed by Defendant on 22.09.2017. Thereafter an Application seeking amendment of the written statement was filed on 25.09.2018. Pursuant to which an additional issue of limitation came to be framed by the learned Trial Court on 08.10.2018. By order dated 28.09.2018 passed below Exhibit-59 amendment of the written statement was allowed to the to Defendant.

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4. In view of the specific order dated 09.03.2017 passed by the learned Trial Court allowing Plaintiff to withdraw the earlier Suit and more specifically in view of the specific averment of the Plaintiff in the present suit i.e. Special Civil Suit No.70 of 2017 in paragraph No.7, there was no reason for the learned Trial Court to reject the Application filed by the Plaintiff below Exhibit-64 and the said Application ought to have been allowed.

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15.wp.993.19 & 994.19.doc

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5. I have perused the Suit plaint and paragraph No.7 thereof. There is a specific reference made to the filing of the earlier Suit i.e. Special Civil Suit No.108 of 2015 by the Plaintiff and the withdrawal of the same with the permission of the Court on the condition granted and allowed by the Court.

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6. In that view of the matter, the order passed below Exhibit-64 dated 10.12.2018 cannot be sustained and the said order deserves to be set aside. The order dated 10.12.2018 is quashed and set aside.

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7. In view of the above order, dated 28.09.2018 pursuant to which the additional issue of limitation has been framed on 08.10.2018 is also set aside. Needless to state that the said issue shall be determined by the Trial Court as a mixed question of fact and law if called upon to be framed by either party and strictly in accordance with law. Both parties are at liberty to file appropriate application for framing of the issue of limitation.

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8. All the contentions of both the parties are expressly kept open before the learned Trial Court.

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9. With the above directions, both the Writ Petitions are disposed of.

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Digitally signed by AJAY AJAYTRAMBAK TRAMBAKUGALMUGALE UGALMUGALE Date: 2023.01.25 19:50:38 +0530

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M/S. Sangmeshwar Trading Co. ,Gen. Merchant and Commission Agent v. M/S. Vyankatesh Farming Thru Partner Laxman Gunaji Narvekar

Case brief

What is this about?

What did the court decide?

M/S. Sangmeshwar Trading Co. ,Gen. Merchant and Commission Agent v. M/S. Vyankatesh Farming Thru Partner Laxman Gunaji Narvekar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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