PATODIA AND COMPANY Vs. BOMBAY WOOLLEN MILLS LIMITED

JUDGEMENT

(1.) In brief the facts of the case are that a suit for recovery of Rs 2,32,249.00 was filed by Patodia & Co. against Bombay Woollen Mills Ltd on account of expenses, commission, brokerage, etc. M/S Patodia & Co, herein described itself as a partnership concern duly registered under the Indian Partnership Act. An objection was taken by the defendant that no cause of action had arisen in favour of the partnership concern.To avoid that objection, this application for amendment of the plaint has been filed mentioning therein that the plaintiff was a sole proprietory concern of which Moti Lal Patodia was the sole proprietor and subsequently the said concern became partnership concern by inducting Durga Parshad Patodia as one. SUIT NO. 1116/78 of the partners and it was registered with the Registrar of Firms on 30.4.77. Cause of action had arisen in favour of Moti Lal Patodia the sole proprietor of Patodia & Company. It was on account, of bonafide mistake and inadvertance that the suit has been filed by Patodia & Company partnership concern. Amendment has been sought in the title of the suit as well as in the body of the plaint showing Mod Lal Patodia as the sole proprietor of Patodia & Co.

(2.) This application has been contested by the defendant who filed written reply. It has been pleaded that the proposed amendment would entirely alter the character of the suit. No cause of action has arisen in favour of the partnership concern who is plaintiff at present and on that account the suit is liable to be dismissed.

(3.) During the course of arguments it has been argued by the counsel for the respondent that the entire claim in the plaint and replication and documents filed by the partnership firm and issues framed were to the effect as to whether the plaintiff as parnter ship firm was entitled to prosecute the suit against the defendant and whether the plaintiff was entitled to sue and recover the outstanding claim as alleged by the plaintiff partnership firm as being due to it from the defendant. According to the learned counsel if the proposed amendment is allowed that would change the entire nature of the suit and that it will also alter the cause of action and in such circumstances the amendment sought for cannot be allowed. He also submitted that the amendment sought to be incorporated are barred by time and cannot be permitted by the court at this stage when the evidence is being recorded.