Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010008692018 Presented on 17/01/2018
Registered on 17/01/2018
Decided on 14/06/2024
Duration 06Y: 4M: 28D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
CHAMBER SUMMONS NO. 112 OF 2018
IN
SUMMARY SUIT NO.904 OF 2017
Induben Anil Ashar ]...Plaintiff
V/s.
Suresh Kaluchand Ranka ]..Defendant
Appearance:
Ld. Advocate Parita Mashruwala i/b. Jaykar and Partners for plaintiff.
Ld. Advocate Ashish T. Suryavanshi for the defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 14/06/2024
O R D E R
01. This chamber summons is taken out by the plaintiff to
make amendment in the plaint and prayer clause as per proposed
amendment mentioned in schedule annexed to the chamber summons.
02. The plaintiff has taken out the chamber summons on
16/01/2018. The counsel for the defendant has filed reply to the
chamber summons and resisted it and prayed for dismissal of it.
03. It is argued on behalf of the plaintiff that he has filed
present suit for recovery of outstanding amount against the defendant.
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2 Ch/sum No.112/18 in
Sum Su No. 904/2017
The defendant had acknowledged the loan borrowed by him year to
year till 2016. The plaintiff was not aware what is mean by agreement,
as he was under impression that agreement means agreement on stamp
paper signed by both the parties either notarized or registered. The
counsel for the plaintiff had asked him whether he had any documents
with respect to the loan advanced to the defendant at that time the
plaintiff told he does not have any documents. However, in the month
of November 2017, when plaintiff was searching for certain papers at
that time he found various documents wherein acknowledgements
given by the defendant were found. Therefore, plaintiff wants to file
said documents on record and make amendment in the plaint and add
paragraph 4(A) to 4(G) after paragraph 4, delete paragraph No.10 and
add new Paragraph No. 10, further wants to replace Exh. D of the plaint
with Exh. D annexed with chamber summons and also amend prayer
clause. It is further submitted that as plaintiff is Senior Citizen 75 years
old and due to faint memory, he was unable to distinguish the
documents. Further, defendant and his family members had left his
records at his residence in shambles. Defendant has taken documents
which he wanted and remaining papers were kept in one cupboard in
his residence. All documents were mixed up and it took long time to
segregate it. In the month of November 2017, he was able to collate the
relevant documents and immediately forwarded to his counsel. It is
submitted that considering said reasons amendment may be liberally
allowed. He has relied on ratio laid down in Life Insurance
Corporation of India V/s Sanjeev Builders and Pvt. Ltd and Anr.,
2022 SCC online SC 1128, wherein Hon'ble Apex Court had observed
that amendment has to be granted liberally. Hence, considering above
reasons, chamber summons may be allowed.
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3 Ch/sum No.112/18 in
Sum Su No. 904/2017
04. On the other hand, the defendant has filed reply to the
chamber summons and submitted that the chamber summons is not
tenable, as it is after thought. It is submitted that when defendant has
raised objection in Notice of Motion No. 3533/2017 that suit is not
maintainable under Order XVII, Rule 2 of Civil Procedure Code then
plaintiff has taken out this notice of motion. Further, there is no written
agreement between plaintiff and defendant as suit is filed on the basis
of oral agreement. Therefore, the suit filed by the plaintiff is not
maintainable. The defendant has further submitted that the reasons
given by the plaintiff to carry out the amendment are not tenable as it is
not believable that the plaintiff was not aware about the documents
concerning the alleged transaction. Further, the plaintiff has given
contradictory reasons in affidavit in support of chamber summons.
Further, the documents which plaintiff wants to file on record and carry
out proposed amendment are false and fabricated and it does not bear
the signature of defendant. The plaintiff has not given the proper reason
to carry out the amendment. Hence, chamber summons may be
dismissed.
05. Perused chamber summons, reply and documents on
record. I have gone through case laws cited on behalf of the plaintiff.
On perusing chamber summons filed by the plaintiff, it appears that
plaintiff wants to carry out proposed amendment in the plaint in respect
of confirmation letters given by the defendant. Admittedly, at the time
of filing suit, the plaintiff has not pleaded in plaint in respect of said
confirmation letters. It appears that defendant has raised objection in
Notice of Motion No. 3533/2017 that suit is not maintainable as there is
not written agreement between the plaintiff and defendant. As per the
plaintiff, he is educated upto 10th Standard and he was not aware what
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4 Ch/sum No.112/18 in
Sum Su No. 904/2017
is mean by agreement. It is also mentioned in the affidavit in support of
chamber summons that he was having knowledge that defendant has
given acknowledgement. However, he has not told his fact to his
counsel. Further, it is contention of the plaintiff that he being old age
person and have faint memory, therefore, he could not give information
about said documents to his counsel.
06. The plaintiff has further stated that his documents were
kept in cupboard which were mixed with other documents. He found
documents regarding loan transaction in the present suit in the month
of November, 2017. Therefore, he wants to make amendment in the
plaint on the basis of said confirmation letters. The defendant has
objected for the same on the ground that said confirmation letters are
fabricated and forged and it does not bear his signature. It is pertinent
to note that whether documents are fabricated and forged can be
decided on merit after adducing the evidence by both parties. At this
stage, it is not necessary to go into merits of documents. It is settled
law that amendment may be granted liberally in view of ratio laid down
in Life Insurance Corporation of India V/s Sanjeev Builders and Pvt.
Ltd and Anr.'s case. The reasons given by the plaintiff that he is
educated upto 10th standard and due to old age he was unable to
recollect and understand whether there were documents with respect to
loan transaction between the plaintiff and defendant appears to be
genuine.
07. However, plaintiff wants to delete para 10 of plaint and
add new para 10 as per proposed amendment. The plaintiff cannot be
allowed to delete para 10 in plaint however, if he wants he can add
contents in proposed para 10 in the plaint. Further, plaintiff wants to
amend contents in Exh. D i.e. particulars of claim and file amended
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5 Ch/sum No.112/18 in
Sum Su No. 904/2017
Exh. D as well as amend the prayer, as there is error in calculation of
amount of interest in particulars of claim. Therefore, considering the
facts and circumstances of the case and reasons given by the plaintiff as
well as ratio laid down in case law cited by the plaintiff, if proposed
amendment is allowed, no prejudice would cause to the defendant. As
defendant will be entitled to cross examine the plaintiff witness and
adduce evidence in his defence. However, at the same time
inconvenience cause to the defendant is needs to be consider by
imposing costs on the plaintiff. Hence, I proceed to pass following
order:
ORDER
1. Chamber Summons No. 112 of 2018 is partly allowed subject to
costs of Rs. 2,000/ (Two thousands only) to be paid to the
defendant on or before next date.
2. The plaintiff is entitled to carry out amendment as mentioned in
schedule in the plaint and file amended copy of plaint on
payment of costs to the defendant.
3. Plaintiff to supply amended copy of plaint to the defendant.
4. Chamber Summons No. 112 of 2018 is disposed off accordingly.
(Sangram. S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date 14/06/2024
Dictated on : 14/06/2024
Corrected & signed on : 15/06/2024
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6 Ch/sum No.112/18 in
Sum Su No. 904/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
15/06/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
14/06/2024
JUDGMENT/ORDER signed by P. O. on 15/06/2024
JUDGMENT/ORDER uploaded on 15/06/2024
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