1. RULE. Shri Keyur Gandhi, learned advocate appearing for Nanavati Associates waives service of notice of rule on behalf of respondent no. 1 and Shri Hiren Modi, learned advocate waives service of notice of rule on behalf of respondent no. 2.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today.
3. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-original third party challenging the impugned order dated 10/08/2011 passed by the learned City Civil Judge, Court No. 14, Ahmedabad below Exh. 55 in Special Civil Suit No. 423/2005 by which the learned Judge has allowed the said application submitted by respondent no. 1-original plaintiff permitting her to substitute the applicant herein as defendant in place of respondent no. 2-original defendant.
4. Respondent no. 1-original plaintiff has instituted Summary Suit No. 423/2005 against respondent no. 2 in the City Civil Court at Ahmedabad to recover a sum of Rs. 4,64,14,165.30. It appears that during pendency of the aforesaid civil suit, original defendant-Core Healthcare Ltd. had gone into liquidation and the Official Liquidator is appointed as Official Liquidator of the aforesaid Company in liquidation. It appears that prior thereto, pursuant to the order passed by this Court (Company Court) of de-merger of original defendant Company, respondent no. 1 submitted an application, Exh. 55 in the aforesaid suit to substitute the applicant in place of original defendant Company-Core Healthcare Ltd. and vide impugned order the learned Judge has allowed the said application and permitted respondent no. 1-original plaintiff to substitute the applicant as defendant in place of original defendant-Core Healthcare Ltd. Being aggrieved and dissatisfied with the impugned order, the applicant-third party has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
5. Shri Mihir Thakore, learned Senior advocate appearing on behalf of the applicant has vehemently submitted that as such the learned Judge has materially erred in observing that the applicant had accepted the entire liability of original defendant Company and/or has taken over the entire original defendant Company. It is submitted that as such it was the case of de-merger of one Unit of original defendant Company and, therefore, it is submitted that as such the learned Judge has materially erred in substituting the applicant in place of original defendant. It is further submitted that as such the learned Judge is required to consider the entire scheme of de- merger as a whole before passing any final order in the suit. It is submitted that without considering the scheme as a whole the learned Judge has materially erred in allowing the application, Exh. 55.
6. Shri Keyur Gandhi, learned advocate appearing on behalf of contesting respondent no. 1-original plaintiff has submitted that in that case the impugned order passed by the learned trial Court be modified to the extent permitting respondent no. 1-original plaintiff to join the applicant as defendant no. 2 with suitable observation and to that extent the impugned order passed by the learned trial Court can be modified.
7. Shri Mihir Thakore, learned Senior advocate appearing on behalf of the applicant has submitted that in that case it be suitably observed that by permitting the original plaintiff to join the applicant as defendant no. 2 it may not be construed that defendant no. 2 is liable to pay any amount under the decree that can be passed against original defendant and before passing any final decree against the applicant the learned trial Court to consider the entire scheme of de-merger as a whole.
8. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties, the impugned order passed by the learned Judge of the City Civil Court at Ahmedabad below Exh. 55 in Special Civil Suit No. 423/2005 is hereby modified to the extent that instead of permitting the original plaintiff to substitute the applicant in place of original defendant the applicant is directed to be joined as defendant no. 2. It is observed that by joining the applicant as defendant no. 2 it may not be construed that the applicant is liable to pay any amount under the suit in question and the learned trial Court to consider the case against the defendants in accordance with law and on its own merits and the learned trial Court to consider the scheme of de-merger as a whole in accordance with law and on its own merits while passing the final judgment and decree in the suit. It goes without saying that as original defendant no. 2-Core Healthcare Ltd. has gone under liquidation, original plaintiff is required to obtain appropriate permission from the Company Court before proceeding further with the suit against original defendant no. 1 and only thereafter the suit is to be proceeded further. Rule is made absolute to the aforesaid extent.
(M.R. SHAH, J.) siji