Interim Order 8

Order Details: COPY OF ORDER
Pdf Text: CS (COMM)143/23
M/S EASTMAN AUTO AND POWER LTD. Vs. M/S GREEN KAIKETSU
AUTOMOTIVE INDIA PVT LTD
04.12.2023
Present: Sh. Kamal Kumar, Ld. Counsel for plaintiff through VC.
Sh. V.K. Upadhyay, Ld. Counsel for defendant.
Submissions heard. Record perused.
Record reveals that issues in this case were casted on
16.10.2023 and evidence was ordered to be recorded before Local
Commissioner. Today case is fixed for final arguments. However, Court is
apprised that no evidence has been led by either of the parties. Apparently,
plaintiff herein moved an application under Order 6 Rule 17 CPC on
21.10.2023, which as per protocol, application should have been decided
between the dates of hearing. However, it is submitted by Ld. Counsel for
plaintiff that Ld. Counsel for defendant refused to appear before the Court
unless the Court Notice issued to him. On being asked, Ld. Counsel for
defendant has apologized for his failure to appearing before the Court and
it is stated that he was under an impression that he supposed to appear only
when the Court notice was issued. It is submitted that Clause 14 of
Protocol designed by this Court missed his attention. Ld. Counsel for
defendant is advised to be careful in future. It is reiterated that Protocol
and the facility of moving and disposing of application in between the
dates has been designed and provided for just and time bound decision of
the matters.
Submissions heard on the application under Order 6 Rule 17
CPC. File perused.
This suit has been filed by plaintiff company for recovery of
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Rs. 4,98,700/- along-with interest @ 18% per annum. Plaintiff is seeking
amendment primarily on following counts;
(i) Inclusion of pre suit interest.
(ii) Inclusion of details of two already paid invoices in the text of the
plaint.
(iii) Inclusion of a line in the cause of action Para to show that part
payment of Rs. 2 lacs was made by the defendant to the plaintiff on
account.
No new document is sought to be placed on record. It is
submitted on behalf of plaintiff that plaintiff inadvertently missed adding
reference to the above two invoices in the plaint and also seek pre suit
interest.
Application is opposed by Ld. Counsel for non-
applicant/defendant on the ground that this application has been filed after
the issues were casted and the evidence was underway. As far as second
and third amendments have concerned, I see no reason as to why plaintiff
staled the recording of evidence for bringing the facts on record in the copy
of plaint. Moresowhen these two facts can be deducted from the ledger
already placed on record.
As far as pre suit interest is concerned, The fact came to the
notice of the plaintiff when attention of Ld. Counsel for defendant was
drawn after the case was received by transfer. As such, the first amendment
qua claiming pre suit interest is allowed. In so far as proposed amended
plaint has already been filed, fresh amended plaint be filed within three
days qua pre suit interest along-with deficient Court fee.
The entire plaint remains the same except qua seeking pre suit
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interest, the prayer of Ld. Counsel for defendant of adopting the already
filed WS is allowed while taking on record his objectioin at Bar that suit of
the plaintiff is not maintainable. Another defence qua the suit claimed
would be applicable as also for the amended plaint.
As evidence is underway before Local Commissioner.
Additional 2 weeks time is given for concluding the evidence.
Put up for final arguments on 18.12.2023.
At joint request, earlier given date i.e. 18.12.2023 stands
changed to 19.12.2023.
(SURINDER S. RATHI)
District Judge
Commercial Court-03
Shahdara District, KKD
Delhi/04.12.2023
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