PRABHUDAS D KOTECHA Vs. ARVIND JERAM KOTECHA

JUDGEMENT

(1.) THE present Chamber Summons has been taken out by the plaintiff for amendment of the plaint in terms of the proposed amendment given in the schedule attached to the Chamber Summons. In the original plaint it is stated that prior to 1958 Damodar Jinabhai Kotecha (father of the plaintiff and Jeram and grand father of Defendant) Govindji Jinabai Kotecha, Kurji Jinabai Kotecha, Karsondas Jinabai Kotecha and Kalidas Kotecha, being members of joint family of Jinabhai Kotecha were carrying on business, inter alia, of buying and selling cotton through M/s.Damodar Jinabhai Limited Company at Uganda, Africa. The joint family decided to expand the business to India. For that purpose, Jeram, father of the present defendant, was requested to come to India. He commenced the joint family business in Bombay in the name of M/ s.Kotecha and Company. In September, 1959, Jeram at the instance of the joint family purchased a Tea and Coffee Estate known as Mavinkere Estate. The consideration price was remitted by the joint family from Uganda, Africa. The sale deed was, however, executed in the name of Jeram alone. In all, a sum of Rs.10 lakhs was spent by the joint family through D.J. Limited Company. This Company was shown as a Creditor in the books of Kotecha & Co. Jeram and Kotecha negotiated and obtained from the concerned Tea Board a loan of Rs.14 lakhs for the development of the said Mavinkere Tea and Coffee Estate. On 3rd April, 1964, a partnership was formed in the name of Mavinkere Estate. The capital of the firm was to be in the sum of Rs.10 lakhs. Each member of the joint family was required to contribute Rs.2 lakhs to become a partner in the said firm. Amratlal Kotecha (now deceased) declined to join as a partner. His proposed share in the partnership was, therefore, distributed among the remaining members of the Joint family. Thus the other four members contributed Rs.2,50,000/- each instead of Rs.2 lakhs. Subsequently Jeram also expressed his unwillingness to join the partnership. Since loan of Rs.14 lakhs had been taken in the name of Jeram, in order to avoid repayment of the same immediately he was asked to continue as a partner. It was agreed that the 12.5 per cent share held in the name of Jeram would be held in trust for and behalf of the plaintiff. One of the partners viz. Karsondas Jinabhai Kotecha died on 13- 11 1982. Thus the firm stood dissolved by operation of law. In paragraph 3(xxi) of the plaint it is stated as follows:

(2.) BY the proposed amendment the plaintiff seeks to take a stand that the partnership firm was never dissolved and that it was never in the co-management of the defendant with Javendra Govindji Kotecha. In the affidavit in support of the Chamber Summons it is stated that in or about November, 1997 the plaintiff came across a deed of rectification dated 26th July, 1965 which was executed by Mr.Kishore Kotecha, the Constituted Attorney of the Plaintiff under a Power of Attorney dated 14-2-1963. It is stated that the Plaintiff was not aware that Mr.Kishore Kotecha had executed the said deed on behalf of the Plaintiff. It is further stated that the Plaintiff accepts the actions of Mr.Kishore Kotecha and also accepts the said deed as being valid. This deed dated 26th July, 1965 is attached as Exhibit-A to the affidavit in support of the Chamber Summons. It is now the case of the plaintiff that by clause (2) of the said deed, the original partnership deed was amended and the partnership was made terminable at Will. Thus it is stated that the Partnership could have been dissolved by any of the partners by giving notice to that effect. None of the partners have ever given any notice of dissolution of partnership and thus it is now sought to be pleaded that the partnership continues The plaintiff admits that 12.5 per cent of the share of the profits had been duly received by him all along. It is pleaded that in view of the changed circumstances, on new facts coming to the knowledge of the plaintiff, it is necessary that the plaint be amended in terms of the Schedule annexed to the Chamber summons.

(3.) AN affidavit in reply has been filed in which serious objections have been raised. It is submitted that the proposed amendments are belated, inconsistent, mala fide, irrelevant and useless. It is categorically stated that the plaintiffs have filed the present suit on the basis that the firm M/s.Mavinkere Estates stood dissolved and the present business is carried on by the erstwhile partners of the said firm as "an Association of the Persons". Mr.Tulzapurkar, learned Counsel appearing for the Defendant, submits that the proposed amendment, if allowed, would change the entire nature, or the cause of action, of the suit. The plaintiff's suit would be wholly displaced by the proposed amendment as the amendment seeks to introduce a totally different, new and inconsistent case. It is also argued that the amendment ought to be disallowed on the ground that it is belated. The plaintiff has all along been aware that defendant No.l has purchased 25 per cent shares of the late Kalidas Jinabhai Kotecha. The Plaintiff is also aware that the defendant has inherited 12.5 per cent shares belonging to his father. The plaintiff is also aware that defendant No. I has been in co-management of the firm along with Jayendra Govindji Kotecha. Thus the Plaintiff cannot now be permitted to take a somersault in his pleadings.