CM(M)/928/2016 of M/S MARUTI ELECTRONICS Vs M/S MOBILE BAZAR & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CM(M) 928/2016

M/S MARUTI ELECTRONICSThroughMr.Triloki Pandit, Advocate

..... Petitioner

versus

M/S MOBILE BAZAR & ORSThroughNone.

..... Respondents

CORAM:HON'BLE MR. JUSTICE JAYANT NATH

O R R%19.09.2016

CM No.34170/2016 (exemption)

Allowed subject to all just exceptions.

TR.P.(C.) 84/2015 & CM No.34171/2016

1.By the present petition, the petitioner seeks to impugn the order dated02.05.2016 by which an application filed by the petitioner under Order 6Rule 17 CPC was dismissed.

2.The amendment sought is very limited. The petitioner has filed suitfor recovery of Rs.17,30,229.00. It is stated that in the memo of parties tothe plaint, the suit is said to be filed through its partner whereas it is actuallyfiled through Sh.Manoj Gupta, authorised signatory. Further in the plaint, itis stated that the same mistake has been stated in para 1 of the plaint. By theamendment it is sought to clarify that the authorised representative is not apartner.

3.The trial court dismissed the application drawing attention to the factthat at several places, Sh.Manoj Gupta was called as authorised partner andhas been described as partner including in an authority letter and affidavit byway of evidence. The trial court, hence concluded that the description ofSh.Manoj Kumar as partner in the suit is not an inadvertent mistake anddismissed the application as not bona fide.

4.Advance copy of the petition has been served on the respondents bythe petitioner. The learned counsel for respondent No.3 has been served inperson. Despite service, none is present for the respondents before this court.

5.A perusal of the plaint shows that in the cause title, it is stated “M/sMaruti Electronics Through its Partners”. In para 1, it is stated that the suit isfiled through Sh.Manoj Gupta, authorised signatory duly authorised by otherpartners to file the present suit. Hence, in the plaint, in fact there is noaverment that Sh.Manoj Gupta is partner.

6.The suit is said to be filed for recovery by an alleged registeredpartnership firm. There is no issue framed regarding the authority ofSh.Manoj Gupta to file the present plaint on behalf of plaintiff firm. It is aninnocuous mistake which is sought to be corrected. In fact, reading of theimpugned order does not show as to what prejudice is caused to therespondents in case the present application is allowed.

7.The amendment is necessary for the purpose of determining the realcontroversy between the parties.

8.Reference maybe had to the judgement of the Supreme Court in thecase of M/s Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91. Relevantpara reads as follows:

“4.It is clear from the foregoing summary of the main rules

of pleadings that provisions for the amendment of pleadings,subject to such terms as to costs and giving of all partiesconcerned necessary opportunities to meet exact situationsresulting from amendments, are intended for promoting the endsof justice and not for defeating them. Even if party or itscounsel is inefficient in setting out its case initially theshortcoming can certainly be removed generally by appropriatesteps taken by party which must no doubt pay costs for theinconvenience or expense caused to the other side from itsomissions. The error is not incapable of being rectified so long asremedial steps do not unjustifiably injure rights accrued.”

9.Accordingly, the present petition is allowed. The application foramendment filed by the petitioner is also allowed, subject to costs of Rs.5000/-. All the pending applications are also allowed.

SEPTEMBER 19, 2016/v

JAYANT NATH, J.