IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3456 OF 2019 ALONGWITH WRIT PETITION NO. 3455 OF 2019

1. Tarun Keshrichand Shah ] Residing at Capri, Manav Mandir Road, ] Walkeshwar, Mumbai – 400 006. ] 2. Priyalata Keshrichand Shah ] Residing at Capri, Manav Mandir Road, ]

Walkeshwar, Mumbai – 400 006. ] ...Petitioners Vs.

1. M/s. Kishore Engineering Co. ] a Partnership Firm registered with ] Registrar of Firms and having its Office ] at Churchgate House, 3rd Floor, ]

32 Veer Nariman Road, Mumbai – 400 023

2. Nak Engineering Company Pvt. Ltd. ] having its office at Churchgate House, ] 3rd Floor, 32 Veer Nariman Road, ]

Mumbai – 400 023. ] ...Respondents ******

Dr. Abhinav Chandrachud, Mr. Naresh Ratnani i/by Ashwin Ankhad and Associates - Advocate for the Petitioners.

Mr. Ankit Lohia a/w Arun Mehta i/by Akshar Laws - Advocate for the Respondents.

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CORAM : S. M. MODAK, J.

RESERVED ON : 10th DECEMBER, 2021. PRONOUNCED ON : 21st FEBRUARY, 2022.

JUDGMENT:-

. By these two writ petitions, the Original Plaintiffs are challenging the Orders passed by the City Civil Court in Suit No. 6117 of 2007 dated 05/10/2018. Those two Orders were passed on two Notice of Motions. They were filed by the Applicant/present Respondent No. 2 whereas present Respondent No. 1 is the sole defendant. Parties are referred to by their original status as per the Suit.

2. The details of those motions are as follows:-

(A) Notice of Motion No. 1346 of 2018 For issuing direction to add applicant as party defendant.

(B) Notice of Motion No. 1925 of 2017 Filed to set aside the Order closed evidence and defendant ex-parte.

3. By the two impugned Orders, the City Civil Court (hereinafter referred to as “Trial Court”) was pleased to allow both these two Notice of Motions. The issue involved in these petitions is :-

a) As to whether the impleadment of applicant is necessary for adjudication of the dispute involved in that suit.

b) Whether order to proceed Ex-parte need to be set aside.

4. On this background, we have heard the learned Advocate Dr. Shri Abhinav Chandrachud for the Petitioners and the learned Advocate Shri Ankit Lohia for the Applicant/Respondent No. 2. No one has appeared on behalf of Respondent No. 1-Original defendant. As both the impugned Orders are passed in two Notice of Motions arising out of two orders passed in the same suit, by consent these petitions are decided together. In support of his plea, the learned Advocate Dr. Shri Chandrachud submitted as follows:

(a) There is no privity of contract between the plaintiffs on one hand and the applicant on the other hand.

(b) The issue involved before the Trial Court is about payment of service charges and the applicant is no way concerned with those service charges.

(c) The applicant can neither be considered as necessary nor proper party.

(d) The certificate of Incorporation produced by the applicant cannot be said to be a proper certificate issued under the Part IX of the Companies Act, 1956.

(e) On bare reading of that certificate it cannot be said that provisions of Section 565 of the Companies Act were fulfilled either by erstwhile Company/sole defendant or by alleged successor/applicant.

(f) The presence of present applicant being trespasser is very much necessary before the Small Causes Court and their impleadment in that Court does not warrant their impleadment before the City Civil Court.

5. In support of his submission he relied upon the following judgments :-

(i) Tarun Keshrichand Shah & Anr. Vs. M/s Kishore Engineering Company & Ors in Criminal Appeal No. 153 of 2019.

(ii) Order dated 23/01/2019 passed in Tarun Keshrichand Shah & Anr. Vs. Kishore Engineering Co. & Anr. in Writ Petition (ST) No. 1695/2019 with Writ Petition (ST) No. 1693 of

2019 (iii) Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors., reported in (2011) (2) Mh. L.J..

(iv) Sandeep Ramesh Solanki and Ors. Vs. Sou. Shevanti Dadoba Nashte, reported in 2019 SCC Online Bom 1313 : (2019) 5 AIR Bom R 427 :(