Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
MHCC010022482020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 186 OF 2020
(HIGH COURT CHAMBER SUMM. NO. 1704 OF 2011)
IN
SUIT NO.7849 of 2004
IN
(HIGH COURT SUIT NO. 2913 OF 2004)
Mr. Vidyasagar Sah …...Plaintiff
Vs.
Survival Systems Ltd. and Ors. .....Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 7th DAY OF SEPTEMBER, 2022
: Appearances:
Learned Adv. Nikhil Patil for plaintiff
Learned Adv. Zubin Dalal for defendant no.2
ORAL ORDER
Present chamber summons is taken out by the plaintiff
for carrying out the amendment in the plaint as per the schedule
annexed thereto and for other reliefs.
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2 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
2. At the outset, I wants to submit that, my learned
predecessorinCourt has decided the present chamber summons on
03.03.2015, thereby dismissed the same. Being aggrieved by the said
order, the plaintiff has preferred Writ Petition no. 4313 of 2015
before the Hon'ble High Court of Judicature at Bombay. The Hon'ble
Bombay High Court vide order dated 16.02.2016 was pleased to
quash and set aside the order dated 03.03.2015 and restored the
chamber summons which is renumbered as 186 of 2020, with the
direction to decide it afresh.
3. The plaintiff has filed the suit for recovery of 10%
commission amounting to Rs. 37,44,400/ from defendant no.1 at the
rate of 18% interest on the principal sum and for the order of
permanent injunction.
4. It is contention of the plaintiff that, during pendency of
the suit on or about in the year 2010, in the course of Inspection of
documents the plaintiff came to know that defendants are bound and
liable to pay higher amount to the plaintiff in view of the fact that
the defendants no.1 and 2 have received higher amount from
defendant no.3 on the basis of agreement which was received by
defendant no.1 due to the persistent work of the plaintiff. Hence the
plaintiff wants to brought on record all these subsequent events.
5. The plaintiff wants to enhance his claim for the amount
of Rs.88,35,000/. It is further contention of the plaintiff that, he is
entitled to pay higher amount from the defendants as it arising from
the same contract. The plaintiff is entitled to the higher amount in
view of the fact that the claim of the plaintiff continues with its
-- 2 of 10 --
3 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
successive renewal of the contract by defendant no.3 in favour of
defendant no.2 which is joint venture of defendant no.1.
6. The plaintiff has filed additional affidavit in support of
the chamber summons and stated that, the original contract dated
12.02.2004 came to be extended over the years according to the
requirement of ONGC i.e. defendant no.3. It is contended that the
contract dated 12th April 2004 was awarded on nomination basis to
defendant no. 2 by defendant no.3 i.e., inviting public tender on a
written confirmation by defendant no.1. The defendant no.2 was the
exclusive joint venture of the defendant no.1 for HUET using Modular
Egress Training Simulator (in short, ‘METS’) in India. The plaintiff
discovered letter dated 28.04.2005 on 27.04.2011 and thus the
amendment application and the relief claimed are not barred by law
of limitation.
7. The defendant no.2 strongly opposed the chamber
summons by filing reply on affidavit. It is contention of the defendant
no.2 that, the plaintiff has now trying to make out an entirely new
and inconsistent case which changes the nature and character of the
suit. It is filed with an intention to harass defendant no.2 after a
period of 7 years and in spite of the fact that defendant no.3 stating
on oath that contract was entered between the defendant no.2 and
defendant no.3 to which the plaintiff has no privity of contract at all.
Hence the question to recover higher amount in the matter does not
arises. It is contended that defendant no.2 is a private limited
company. Defendant no.1 does not hold any share in defendant no.2.
Defendant no.2 is not a joint venture company of defendant no.1 and
thus there is no nexus between defendant no.1 and defendant no.2
other than the case relation. Defendant no.2 is an independent
-- 3 of 10 --
4 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
corporate entity and is neither the agent nor a division of defendant
no.1. Thus question of seeking any relief against defendant no.2 on
the basis of contract entered in between defendant no.2 and 3 by the
plaintiff on the basis of alleged letter dated 06.12.2001 does not
arise. The relief claimed by the plaintiff is barred by limitation. The
chamber summons is frivolous and hence needs to be rejected with
cost.
8. The plaintiff has filed rejoinder to the reply of the
defendant no.2 on affidavit. The plaintiff has denied all the adverse
contentions of the defendant no.2. It is contended that the defendant
no.2 is the joint venture of defendant no.1 and only to avoid the
commission amount of the plaintiff, defendant no.2 with collusion of
defendant no.1 making a false statement that defendant no.2 has no
concerned with defendant no.1.
9. Defendants no.1 and 3 failed to file their reply to the
chamber summons.
10. Heard the learned advocate Shri. Patil for the plaintiff
and learned advocate Shri. Dalal for defendant no.2 for considerable
period of time. Perused the record.
11 Following points arise for my determination to which I
record my findings with reasons as follows:
Sr.
No.
Points Determination.
1. Whether the plaintiff is entitled for the relief
claimed in chamber summons?
Yes
2. What order ? As per final
order
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5 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
REASONS
As to point no.1:
12. The learned advocate for the plaintiff argued that, during
pendency of the suit some how in the year 2010, the plaintiff
discovered some documents and on the basis of it, it reveals to the
plaintiff that he is entitled to higher amount because the subsequent
contract entered into in between defendant no.2 and defendant no.3
are arising from the original contract entered in between defendant
no.1 and defendant no.3. Thus the claim of the plaintiff continues
with each successive renewal of the contract of defendant no.3 in
favour of defendant no.2, as defendant no.2 is a joint venture of
defendant no.1 and receiving payment for the HUET Training under
METS. As above said facts reveals to the defendant during pendency
of the suit and there are subsequent events, hence it is necessary to
bring it on record by carrying out the amendment.
13. It is further contention of the plaintiff that, yet the trial
has not begin, if the amendment is allowed then no prejudice would
be caused to the defendant. The relief claimed by the plaintiff is well
within limitation from the date of knowledge. Hence, the chamber
summons may kindly be allowed.
14. In support of his argument, the learned advocate for the
plaintiff relied on the authorities reported in the case of:
(i) Revajeetu Builders And Developers Vs. Narayanaswamy and
Sons and Others; (2009) 10 Supreme Court Cases 84; wherein the
Hon'ble Supreme Court held that,“discretionary power must be
exercised judiciously and with great care. Court must not refuse
bonafide legitimate, honest and necessary amendments and should
-- 5 of 10 --
6 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
never permit malafide, worthless and/or dishonest amendments. Basic
test which must govern grant or refusal of amendment is whether such
amendment is necessary for determination of real question in
controversy or for proper and effective adjudication of the case. Court to
consider potentiality of prejudice or injustice which is likely to be
caused to the other side by the amendment. Amendment should not
cause such prejudice to the other side which cannot be compensated
adequately in terms of money.”
(ii) Sampath Kumar Vs. Ayyakannu and Another (2002) 7
Supreme Court Cases 559; wherein the Hon'ble Supreme Court
held that “An amendment once incorporated relates to the date of the
suit. However, the doctrine of relationback in the context of amendment
of pleadings is not one of universal application and in appropriate cases
the court is competent while permitting an amendment to direct that the
amendment permitted by it shall not relate back to the date of the suit
and to the extent permitted by it shall be deemed to have been brought
before the court on the date on which the application seeking the
amendment was filed ”. The Hon'ble Supreme Court further held that
“the basic structure of the suit is not altered by the proposed
amendment”.
(iii) In the case of State of Madhya Pradesh Vs. Union of India &
Anr.; 2011 DGLS (Soft.) 660; the Hon'ble Supreme Court held that
“amendments which are necessary for the purpose of determining the
real question in controversy between the parties needs to be allowed.”
(iv) In the case of Abdul Rehman and another Vs. Mohd. Ruldu &
Ors.; 2012 DGLS (Soft.)462; the same principals laid down by the
Hon'ble Supreme Court while holding that while allowing the
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7 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
amendment, it should not change the basic nature of the suit.
15. Per contra, the learned advocate for defendant no.2
vehemently argued that the amendment sought by chambers
summons is barred by limitation. The defendant no.2 is totally
independent entity and nothing to do with defendant no.1.
Defendant no.2 in its own capacity entered into an agreement with
defendant no.3. There is no role played by defendant no.1 in the said
contract. There is no privity of contract in between the plaintiff and
defendant no.2 and defendant no.3. Thus, the reliefs sought by the
plaintiff by way of amendment is not tenable. Hence, chamber
summons needs to be rejected.
16. It is to be seen that, it is contention of the plaintiff that,
he is the sole proprietor of firm namely “Bay Oil Services”. The
defendant no.1 has secured and operated its contract for Helicopter
Underwater Escape Training (in short, ‘HUET’) in India with ONGC/
IPSEM through the “Survival Systems India” Division of defendant
no.2. The defendant no.1 is receiving payment for the HUET from
defendant no.3 through defendant no.2. It is contended that the
plaintiff entered into the contract with defendant no.1 vide letter
dated 6th December, 2001. It is further contended that pursuance to
the liason work and efforts of the plaintiff the defendant no.1 have in
February, 2004 secured a contract from the defendant no.3. As per
the contract entered into in between the plaintiff and defendant no.1,
the plaintiff is entitled for 10% agency commission. The defendant
no.1 have taken and are performing the said contract through the
defendant no.2, which is a joint venture of defendant no.1. The
defendant no.2 is a nominal company and has no real assets or
repute/experience of its own. In fact defendant no.1 has secured the
-- 7 of 10 --
8 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
contract in the name of defendant no.2 by representing that the said
division is the defendant’s no.1 joint venture for India and is the only
company that would have access to defendant no.1 Canada, for
support certification. Despite having been awarded the contract for a
value of 3.74 Crores and having substantially received payment
thereunder from defendant no.3 through defendant no. 2, defendant
no.1 wrongfully and dishonestly refused to pay to pay to the plaintiff
agreed commission. Hence the suit.
17. Now as per the plaintiff, he wants to make an
amendment for claiming higher amount of commission on the basis of
subsequent transaction /contract took place in between defendant
no.2 and defendant no.3. It is contended that defendant no.2 is joint
venture of the defendant no.1 and under the control of defendant
no.1 runs METS for defendant no.3. Only to avoid the commission of
the plaintiff, defendant no.1 with collusion of defendant no.2 entered
in contract with defendant no.3 in the name of defendant no.2. All
this facts are reveals to the plaintiff while taking inspection of the
relevant documents.
18. It is main contention of the plaintiff that, on his efforts
defendant no.1 got the contract with defendant no.3. It was agreed
in between defendant no.1 and the plaintiff that defendant no.1 will
pay 10% amount to the plaintiff. However, now defendants no.1 and
2 refused to pay to him the commission. Thereafter subsequent
contracts are entered in between defendant no.2 and defendant no.3
as per the direction of defendant no.1. In my view, looking to the
facts and subsequent developments in the case it is necessary to bring
it on record all these subsequent events, because this will not change
the basic nature of the case. Since beginning it is the case of the
-- 8 of 10 --
9 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
plaintiff that, the defendant no.2 is the joint venture of the defendant
no.1 and looking its affairs at India. Thus upon perusal of pleadings
and documents and submission of the parties, in my view if the said
proposed amendment is allowed then no prejudice will be caused to
the defendant. Yet the trial has not commenced, therefore the
defendants have ample opportunities to defend themselves on merits.
Therefore the plaintiff is made out a case for allowing the chamber
summons. Hence my answer to point no.1 is in affirmative.
As to point no.2:
19. In view of my above discussion, I pass the following
order:
ORDER
Chamber summons no.186/2020 stands allowed
subject to payment of cost of Rs.5000/ to be paid by the
plaintiff to the defendant no.2.
Amendment be carried out within 14 days from the
date of order.
Amended copy to be filed on record and also be
supplied to the defendants.
Chamber summons is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.07.09.2022 (C.R. No.1)
Dictated on : 07.09.2022
Transcribed on : 07 & 08.09.2022
Signed on : 08.09.2022
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10 Ch/sum. no.186-20; In Suit no.7849-04
(High Ct. Suit no.2913-2004)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 13.09.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 07.09.2022
JUDGMENT/ORDER signed by P.O. on 08.09.2022
JUDGEMENT/ORDER uploaded on 13.09.2022
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