PRAKASH D KARAMCHANDANI Vs. PINK ENTERPRISE

JUDGEMENT

(1.) THE plaintiff has filed the present chamber summons seeking permission to amend the plaint in all respects to change the entity or status of the firm viz. , M/s. K. G. R. Chemical Corporation as Proprietory concern of Shri Prakash D. Karamchandani as the same has been shown erroneously as a partnership firm. In support of the chamber summons he has filed his affidavit and has pointed out that it was due to oversight that M/s. K. G. R. Chemical Corporation was erroneously mentioned as a partnership firm although it was a proprietory concern. He has also stated in the said affidavit that the plaintiff was doing his business from 1977 and managing the same as proprietory concern. He has further averred that his proprietory concern was registered with Central Excise and State Sales Tax Department since 1977 and that he is known as proprietor of the firm. Along with the affidavit he has annexed xerox copies of the aforesaid documents.

(2.) IN reply to the chamber summons, the defendant No. 2 has filed his affidavit opposing any such amendment, it is averred in the affidavit that the amendment is malafide and is not a bonafide mistake and it is only when the defendants pointed out that the partnership firm was not registered and therefore, the suit was not maintainable under section 69 of the Indian Partnership Act, the plaintiff has taken out the present chamber summons as a device to cure the fundamental mistake which is fatal and the suit itself would not be maintainable. It is also pointed out that proceedings under section 138 of the Negotiable Instruments Act are pending before the Metropolitan Magistrate. According to the defendants, the plaintiff has been describing himself as a partnership firm and as a partner of the firm, not only in the present proceedings but he has been doing so in other proceedings repeatedly and therefore, it cannot be said to be bonafide mistake.

(3.) SHRI Desai, the learned Counsel for the defendants has relied upon a judgment of Calcutta High Court in the case of Abani Kanta Pal, reported in A. I. R. 1986 Calcutta 143. The ratio of the said judgment supports the contention of Shri Desai. I reproduce the head note of the judgment.