Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.151 OF 2020
IN
S.C. SUIT NO.3206 OF 2018
M/s.Penwalt Limited ..Plaintiff
Versus
1. Gujarat Alkalies and Chemicals Ltd
and anr. ..Defendants
Ld. advocate Mr.K.S.Tripathi for plaintiff
Ld. advocate Mr.Odhekar for defendant no.1
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE :19th March, 2020
ORAL ORDER
1. This chamber summons is tended by plaintiff for
amendment of the plaint.
2. The contention of the plaintiff is that defendant No. 1
dishonestly and with malafide intention, got
encashed 10 bank guarantees for total sum of ₹
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3,661,937/–. The suit was filed on 19 October 2018
and was moved for ad interim orders on 20 October
2018. The defendant No. 1 company with dishonest
intention, arbitrarily and in a malafide manner got
encashed the bank guarantees on 20 October 2018.
The plaintiff submitted that those facts are
subsequent to the filing of the suit and therefore
those are necessary to bring on the record to avoid
multiplicity of the proceedings.
3. The defendant No. 1 opposed the chamber summons.
The stand of the defendant No. 1 is that the suit was
filed on 19 October 2018 and was circulated on 20
October 2018. The same was done without any
notice to the defendant No. 1. The defendant No. 1
company based at Vadodara, was served by an email
in the morning of 20 October 2018. The advocate for
defendant No. 1 appeared in the matter on 20
October 2018 without any copy of the plaint and the
notice of motion, plaintiff misrepresented the court
and got the order directing the defendant No. 1 to
deposit an amount in excess of 12,41,363/–. The
defendant No. 1 immediately obliged the order and
had filed their reply to the notice of motion. The
plaintiff since then delaying the hearing on the notice
of motion on one or another pretext. By the proposed
amendment plaintiff is making an attempt to bring
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those facts on record which transpired prior to the
filing of suit and also attempting to change the
nature of the suit. The plaintiff wish to convert this
suit into a money recovery suit against the defendant
No. 1. The defendant No. 1 prayed for dismissal of
the chamber summons.
4. The plaintiff has filed affidavit of rejoinder and
denied all the adverse allegations made by the
defendant No. 1 in their affidavit of reply.
5. The trial in the matter has not commenced. The
matter is at the initial stage of hearing of interim
applications. Therefore, the proviso to Rule 17 Order
6 of the Code of Civil Procedure, will not be
applicable. At this stage the essential consideration is
whether by way of proposed amendment the nature
of the suit is changed and it is prejudicial to the
interest of the defendants. The proposed amendment
is based upon the factual aspect that the invocation
of the performance guarantees by the defendant No.
1 is illegal and malafide. The amended pleadings
appear to be the elaboration of the facts. No doubt
those facts might be in existence at the time of filing
of the suit but at this juncture it does not lead to
draw inference that the proposed amendment
changes the basic nature of the pleadings.
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6. The other limb of argument of the learned counsel
for the defendant No. 1 was that the plaintiff is
converting the present suit into a money recovery
suit by way of the proposed amendment. Admittedly,
the performance guarantees were encashed on 20
October 2018. At this stage it is not the question for
consideration when those were invoked. The plaintiff
disputes the very invocation of the performance
guarantees. The predecessor of this court on 20
October 2018 passed an order directing the
defendant No. 1 to deposit the amount received in
excess of 1,241,363/–. The said developments are	₹
subsequent to the filing of this suit. It is settled
principle that all the disputes between the parties
should be decided in a single compass. It cannot be
said that the plaintiff intends to convert this suit into
money recovery suit. The argument in respect of
territorial jurisdiction of this court can be taken into
consideration during the trial. The same cannot be an
impediment in deciding the present chamber
summons. At the time of deciding the application for
amendment it is not expected for the court to go into
the merits of the amendment. Thus, it is evident that
the proposed amendment does not change the basic
nature of the pleadings and is not prejudicial to the
interest of the defendants.
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7. In view of the above discussion, the chamber
summons needs consideration and therefore, it is
expedient pass following order: –
Order
1.Chamber summons 151/2020 is made absolute
terms of prayer clause (a).
2.Plaintiff to carry out necessary amendment as per
schedule within a period of 14 days from today.
3.Costs in the cause.
4.Chamber summons 151/20 is disposed of
accordingly.
19/03/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 19/03/2020
Typed on : 19/03/2020
Signed on : 23/10/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
23/10/2020 at 2.20 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
19.03.2020
Judgment and order signed by P.O. 23.10.2020
Judgment/order uploaded on 23.10.2020
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