Darshan Singh Kochar vs Jaswant Singh Kochar (Deceased) ...
1997 Latest Caselaw 949 Del

ORDER

K.S. Gupta, J.

1. Defendants 1 (a), (b) and (c) legal representatives of deceased defendant No.1 Jaswant Singh Kochar have filed this application under Order VI Rule 17 read with Section 151 CPC for amendment of the written statement inter-alia alleging that while shifting from property No. A-5, Kalindi to 144, Sunder Nagar, New Delhi certain facts relating to the controversy in the present suit have come to their notice from the old records maintained by deceased defendant No. 1 and they want to bring those facts on record. Amendments sought, in brief, relate to the following pleas:-

(i) that the plaintiff while filing the present suit concealed that the firm M/s. B. Dadabhoy and its business was the subject matter of earlier Suit No. 247/68 filed by the plaintiff which was allowed to be withdrawn unconditionally by an order dated August 2, 1973;

(ii) shop and the godowns in question always belonged to and remained in possession of deceased defendant No. 11; and

(iii) after the withdrawal of the aforesaid suit and settlement of the claim of the plaintiff, deceased defendant No.1 started a new firm under the name and style of Jaswant Singh Kochar and Brothers wherein the plaintiff was not a partner.

2. In the reply it is alleged that the plaintiff did disclose about the filing of Suit No. 247/68 against Asha Singh Kochar and Others on the basis of his being a member of the HUF. In that suit firm M/s. B.Dadabhoy was mentioned as a Joint Hindu Family business of the parties. On the objection of the defendants including defendant No.1, that M/s.B.Dadabhoy was a firm constituted under the provisions of Indian Partnership Act, 1932, and that it was not a Joint Hindu Family business of the parties, the plaintiff withdrew the aforesaid suit and filed the present one on the basis pleaded by the defendants themselves which was accepted by the Plaintiff. It is alleged that by means of the proposed amendments defendants 1 (a) to (c) are trying to set up an absolutely new case.

3. I heard the parties counsel and have been taken through the record.

4. Reference to paras No.5, 5(A) of the Plaint and 3, 5,5 (A) and 6 of the written statement filed by deceased defendant No.1 on July 15, 1976 is necessary for deciding the controversy at hand. Said paras of the plaint read thus:-

5. That the HUF had started the same business, as above, in Delhi sometime in 1944 and a deed of partnership was subsequently executed between the parties hereto, copy whereof is marked as Annexure A hereto. It was, inter alia, provided therein that the profits and losses of the partnership shall be shared equally between the partners."

5-A. That the above partnership was registered under the provisions of the Indian Partnership Act as well as under the provisions of the Income Tax Act.

The petitioner submits that although his case, as originally laid in his suit S.Darshan Singh Kochhar versus S.Aea Singh Kochhar and others, Suit No. 247/68 referred to hereinafter, that the above was, in fact, an HUF business and the defendants case therein was that it was, in reality, a contractual partnership, as envisaged in the said partnership deed itself. In this suit, however, the plaintiff is proceeding to avoid all controversy on the point, on the basis that M/s.B.Dadabhoy was carrying on partnership business, as such, and S.Jaswant Singh Kochhar, defendant, was generally managing its affairs."

5. Paras 3, 5, 5-A and 6 of the written statement filed by deceased defendant No.1 run as under:-

3. Para 3 of the plaint is denied. M/s B.Dadabhoy has always been a partnership firm working at Chandni Chowk Delhi, since 1944. This partnership has been constituted by the plaintiff and the three defendants.

5. Para 5 of the plaint is denied. The fact is that M/s.B.Dadabhoy has started as a partnership business of the parties in the year 1944. Each of the four partners has equal share in profits and losses of the partnership.

5-A In second para 5 of the plaint, it is not denied that the said partnership was registered under the Indian Partnership Act and the Income Tax Act at Delhi and reference to the previous suit No.247 of 1968 has no relevancy. Rest of the allegations in second para 5 of the plaint are denied.

In para 6 of the plaint, it is not denied that the premises are for the partnership M/s. B. Dadabhoy which partnership has been carrying on business in the shop, in which it is doing at present. The Municipal Nos. of the shop are a matter of record. The boundaries of the shop are wrongly given and are denied. It is admitted that the partnership has two godowns being used for the purposes of business. Rest of the allegations in para 6 of the plaint are denied.

6. Evidently, in said para 5 of the plaint there is a specific mention about the filing of S.No. 247/68 by the plaintiff against Asa Singh Kochhar & others. Bare reading of aforesaid paras 3,5, 5-A and 6 of the written statement goes to show that it was admitted by deceased defendant No.1 that M/s.B.Dadabhoy has always been a partnership firm whereof the plaintiff and the defendants are the partners having equal share in profits and losses and the shop and the godowns are in use by the said partnership firm. Thus the said amendments sought are not only dishonest but have the effect of introducing a new case. Decisions relied on behalf of the defendants are of little help to them. Application moved after about 20 years of the filing of the suit obviously with a view to delay the proceedings thus deserves to be dismissed with costs.

Application is, therefore, dismissed with Rs.1,500/- as costs.