Bombay High Court
National Spot Exchange Limited vs N K Proteins Limited on 14 August, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:12699
30-NMS-749-2015 (OS).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
NOTICE OF MOTION (SUITS) NO. 749 OF 2015
IN
COMMERCIAL SUIT NO. 126 OF 2021
National Spot Exchange Limited ...Applicant
Versus
M/s. N.k. Proteins Limited And 49 Ors. ...Respondents
WITH
INTERIM APPLICATION(ST) NO. 23875 OF 2024
IN
COMMERCIAL SUIT NO. 126 OF 2021
N K Proteins Limited ...Applicant
IN THE MATTER BETWEEN
National Spot Exchange Limited ...Plaintiff
Versus
N K Proteins Limited and Ors. ...Defendants
***
Mr. Ashish Kamat, Senior Advocate a/w Vaibhav Bhure, Shlok
Parekh, Melvyn Fernandes, Anuya Pathare i/by Vaish Associates
Advocates for Applicant/Plaintiff.
Mr. Mohit Arora i/by Isha Bafna for Defendant No.6, 7-A to 7-C.
Mr. Kevic Setalwad, Senior Advocate a/w Mr. Raheel Patel, Mr.
Jehan Lalkak and Kamini Pansare i/by V. M. Legal for Defendant
No.1.
***
CORAM : N. J. JAMADAR, J.
ETHAPE DNYANESHWAR
DNYANESHWAR ASHOK
ASHOK
Date: 2024.08.21
09:42:50 +0530
DATE : 14th AUGUST 2024
PC.:
1. The applicant/plaintiff has preferred this application to
bring the legal representative of Defendant No.7 Nilesh Keshavlal
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Patel, who passed away on 7th August 2020, on record.
2. In the application it is averred that post knowledge of the
death of the Defendant No.7, the plaintiff addressed
correspondence to the Advocate for the Defendant Nos. 1 to 4
and Defendant Nos. 8 and 9. However, there was no appropriate
response. Thereafter, the applicant had preferred Interim
Application (L) No.8684 of 2020 seeking directions to Defendant
Nos.1 to 4 and Defendant Nos. 8 and 9 to disclose on oath the
names and addresses of the legal heirs/beneficiaries of
Defendant No.7. Vide communication dated 29 th and 30th
January 2021, the Advocate for Defendant Nos.1 to 4 informed
that, the heirs of Defendant No.7 namely, Ashitaben N. Patel,
Ms.Priyanshi N. Patel and Mr.Priyam N. Patel were already on
record as party Defendants to the Suit. Hence, this application to
amend the plaint in accordance with schedule of amendment
(Exhibit-A) so as to implead the Defendant No.9-Ms.Ashitaben N.
Patel, Defendant No.11-Priyanshi N. Patel and Defendant No.19-
Priyam N. Patel also in the capacity of legal representative of
Defendant No.7.
3. Affidavit-in-reply is filed on behalf of the proposed
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Defendant No.7(c) Mr. Priyam N. Patel. It is contended that the
Suit has already abated. Despite, the names of the proposed
Defendants having been informed to the plaintiff vide
communication dated 29th January 2021, there is an inordinate
delay of three and half years in seeking the impleadment of legal
representatives. The applicant has not prayed for condonation of
delay in filing the application for setting aside the abatement.
Therefore, the application be rejected.
4. Heard the learned Counsel for the parties.
5. Mr.Kamat, the learned Senior Advocate for the plaintiff,
submitted that the plaintiff has made diligent effort to seek the
names of the legal representatives of the Defendant No.7.
However, there was no response. Belatedly, in the
communication dated 21st January 2021, it was categorically
informed on behalf of Defendant Nos.1 to 4 that the legal heirs
of the Defendant No.7 were already parties to the Suit. Hence,
there is no question of abatement of the Suit. Reliance was
placed on a Full Bench decision of the Patna High Court in the
case of Musammat Hifsa Khatoon and Ors. Vs. Mohammad
Salimar Rahman and Ors.1
1 1958 SCC OnLine Pat 121
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6. As against this, Mr.Arora, the learned Counsel for the
Defendant Nos.6 and proposed Defendant Nos. 7(a) to 7(c)
submits that the application for amendment is wholly
misconceived. The plaintiff was informed about the names of the
legal representatives of the deceased Defendant No.7 on 29 th
January 2021 itself. The plaintiff has made no endevour to
explain the delay. As it is a case of complete negligence and
deliberate inaction on the part of the plaintiff, the application
deserves to be dismissed.
7. Mr. Arora has placed reliance on the decisions of the
Supreme Court in the cases of Mithailal Dalsangar Singh and
Ors. Vs. Annabai Devram Kini and Ors .2 and Perumon Bhagvathy
Devaswom Vs. Bhargavi Amma and Ors.3 Emphasis was laid on
the following observations of the Supreme Court in the case of
Perumon Bhagvathy Devaswom Vs. Bhargavi Amma and Ors.
(supra):-
"5. Having regard to the wording of Rule 4, it is clear that when
a respondent dies and an application to bring his legal
representative on record is not made, abatement takes place on
the expiry of the prescribed period of 90 days, by operation of
law. Abatement is not dependant upon any judicial adjudication
or declaration of such abatement by a judicial order. It occurs by
operation of law. But nevertheless `abatement' requires judicial
2 (2003) 10 SCC 691
3 (2008) 8 SCC 321
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cognizance to put an end to a case as having abated. To borrow a
phrase from Administrative Law (used with reference to void
orders), an appeal bears no brand on its forehead that it has
`abated', nor does it close itself automatically on abatement. At
some stage, the court has to take note of the abatement and
record the closure of the case as having abated (where deceased
was a sole respondent) or record that the appeal had abated as
against a particular respondent (if there are more than one and the
cause of action survives against the others)."
8. Mr.Setalwad, the learned Senior Advocate for the
Defendant No.1, also supplemented the submissions of Mr.
Arora. Inviting the attention of the Court to the case set up by
the plaintiff in the affidavit in support of the Notice of Motion,
especially as regards the capacity of the Defendant No.7 in which
the admissions were purportedly made by Defendant No.7, it
was submitted that the fact that the legal representatives of
Defendant No.7 were already parties to the Suit is of no
consequence as the capacity in which they were impleaded as
defendants assumes importance. Therefore in the event the
application is allowed, the Court may clarify that the case qua
Defendant No.7 with regard to the admission of the liability
stands abated.
9. I have perused the averments in the application and
affidavit-in-reply and given careful consideration to the
submissions canvased across the bar. Incontrovertibly, the
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Defendant Nos. 9, 11 and 19, who are sought to be brought on
record as the legal representatives of deceased/Defendant No.7,
are the only legal representatives of Defendant No.7. This fact
stands substantiated by the communication addressed on behalf
of the Defendant Nos.1 to 4, on 29th January 2021, wherein it
was mentioned that the legal heirs of Defendant No.7 were
already parties to the Suit. Nor the said position is disputed by
proposed Defendant Nos. 7(a) to 7(c). The situation which thus
obtains is that, the estate of Defendant No.7 was duly
represented on the date the Suit would have otherwise abated.
10. As the estate of Defendant No.7 was duly represented,
there is no question of abatement of the Suit. Reliance placed by
Mr.Kamat, on the decision in the case of Musammat Hifsa
Khatoon and Ors. Vs. Mohammad Salimar Rahman and Ors.
(supra) appears well founded. The position in law is well settled
that, if the estate of the deceased is represented by other parties
to the proceedings, then the proceedings does not abate. A
useful reference can be made to the decisions of the Supreme
Court in the cases of State of Haryana and Ors. Vs. Gurcharan
Singh and Ors.4, State of Andhra Pradesh Through Principal
4 (2004) 12 SCC 540
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Secretary and Ors. Vs. Pratap Karan and Ors.5 and Delhi
Development Authority Vs. Diwan Chand Anand and Ors. 6
11. The decisions in the cases of Mithailal Dalsangar Singh
and Ors. Vs. Annabai Devram Kini and Ors . (supra) and Perumon
Bhagvathy Devaswom Vs. Bhargavi Amma and Ors . (supra),
were rendered in the context of the nature of the discretion to be
exercised by the Court while considering a prayer for setting
aside the abatement. The situation where the estate of the
deceased is represented by the parties, who are already on
record, was not at all considered in those judgments. Therefore,
the said decisions are of no assistance to the cause of the
submission sought to be canvased on behalf of the Defendants. I
am, therefore, inclined to hold that, there is no abatement of the
Suit.
12. The amendment proposed to be made so as to implead the
Defendant Nos.9, 11 and 19 in the capacity of the legal
representatives of the Defendant No.7 also, is essentially of a
formal nature. Hence, the application stands allowed in terms of
prayer clause (a).
5 (2016) 2 SCC 82
6 (2022) 10 SCC 428
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13. The plaintiff shall carry out amendment in accordance
with schedule of amendment at Exhibit-A, within a period of
three weeks.
14. Application disposed.
15. Notice of Motion No.749 of 2015 be listed for hearing on
4th September 2024 (high on board).
(N. J. JAMADAR, J.)
D.A.ETHAPE 8 of 8
