Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Order in Ch/s 444/2020 in Comm. Suit 64/2021
CHAMBER SUMMONS NO. 444 OF 2020
IN
COMMERCIAL SUIT NO. 64 OF 2021
CNR NO. : MHCC010029512020
Spearhead Destination Pvt. Ltd. … Plaintiff
V/s.
UTS Travel & Anr. ...Defendants
And
UTSHotelbook PTE. Ltd & Ors. …Proposed defendants
Appearance:
Adv. Jay Chhabria along with Adv. Pratik Pai for Plaintiff.
Adv. Pritesh Rajgor for Defendant No. 2
Adv. Usha Rahi for Proposed Defendant Nos. 7 & 8.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 3rd MARCH 2023
ORDER
The plaintiff has filed this Chamber Summons for
amending the plaint in terms of Schedule “I” annexed with the Chamber
Summons. According to the plaintiff, the plaintiff conducted search and
detailed examination of its records from the past 6 years, especially of
its dealings with the defendant no. 1. The plaintiff found one letter
dated 24.07.2019 issued by UTS Russia. It is evident that the defendant
no. 1 and proposed defendant nos. 3 and 4 are one and the same and
companies under the umbrella of the larger group i.e. the UTS group.
The defendant no. 1 has been making payment to the applicant/plaintiff
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under the Agreement through proposed defendant nos. 3 and 4. There
is a commonality of management in respect of defendant no. 1 as also
the proposed defendant nos. 3 and 4. As per letter dated 24.07.2019,
the proposed defendant nos. 3 and 4 are necessary parties to the suit for
effectively and completely adjudicating and settling the disputes. The
plaintiff also submitted that the defendants have deliberately and
willfully disobeyed the order dated 18.02.2020 in Notice of Motion No.
902 of 2020. The proposed defendant nos. 5 and 6 are the incharge of
daytoday functioning of defendant no. 1, while proposed defendant
nos. 7 and 8 are the representatives of the defendant no. 2 and in
charge of the operation of the defendant no. 2.The plaintiff is initiating
necessary proceedings against defendant nos. 1 and 2 and proposed
defendant nos. 5 to 8 in view of this willful and deliberate breach of
order dated 18.02.2020. Hence, proposed defendant nos. 4 and 5 are
proper parties to the suit. No prejudice will be caused to the proposed
defendants, if subsequent facts are on record. Hence, the plaintiff
prayed that Chamber Summons be allowed and plaintiff may be
permitted to amend the plaint and to add the proposed defendant nos.
3 to 8 in the suit.
2. The defendant no. 1 submitted reply to the Chamber
Summons and resisted the Chamber Summons. It is contended by the
defendant no. 1 that proposed amendment is completely malafide,
dishonest and ought not to be allowed by the Court. The respondent
nos. 3 and 4 are neither necessary nor proper parties. The proposed
defendant nos. 3 and 4 are not parties to the said Agreement. The
plaintiff through this application seeks to add proposed defendant nos.
3 and 4 in the present suit in order to pressurize the defendant no. 1 to
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meet the illegal claims. The reliefs sought against the proposed
defendant nos. 3 and 4 and the incidental amendments are also not
maintainable. The defendant no. 1 and proposed defendant nos. 3 and
4 are separate and distinct legal entities. The proposed defendant nos. 3
and 4 are not necessary parties. The proposed defendant nos. 5 and 6
cannot be made a party to the present suit in their individual capacity.
The plaintiff wants to join the officers of the defendant no. 1 Company
with intention to pressurize the defendant no. 1. The plaintiff failed to
demonstrate how the defendant nos. 3 to 6 have direct interest in the
subject matter of the present suit. Similarly, proposed defendant nos. 7
and 8 cannot and ought not to be allowed to be joined as parties to the
present suit on account of them being in purported charge of the day to
day of the defendant no. 2. For these reasons, the proposed amendment
sought in the Chamber Summons cannot be allowed. The parties which
are neither proper nor necessary parties to the suit and they cannot join
as defendants in the suit. Lastly, the defendant no. 1 prayed for
dismissal of the Chamber Summons.
3. The defendant no. 2 filed reply to the Chamber Summons
and resisted the Chamber Summons. The Chamber Summons taken out
by the plaintiff is badinlaw. There is dispute between the plaintiff and
the defendant no. 1 and the defendant no. 2 is unnecessarily dragged
into these proceedings without any reason. The present Chamber
Summons is taken out by the plaintiff with malafide intentions. There is
no case made out by the plaintiff for seeking any relief as prayed. Lastly,
the defendant no. 2 prayed for dismissal of the Chamber Summons.
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4. The defendant no. 5 also filed reply and contended that the
defendant no. 5 is the Director in Brandit Marketing and Promotions
Pvt. Ltd. The plaintiff has taken out this Chamber Summons only for
pressurizing and arm twisting method used for seeking reliefs from the
Court. According to defendant no. 5, the defendant no. 2 filed it's
elaborate reply to the Chamber Summons and the same reply be treated
as reply on behalf of proposed defendant no. 5. The defendant no. 6
also submitted reply to the Chamber Summons and resisted the
Chamber Summons. As per defendant no. 6, the defendant no. 2 filed
it's elaborate reply to the Chamber Summons and the same reply be
treated as reply on behalf of proposed defendant no. 6.
5. Heard Learned Advocate Jay Chhabria along with Advocate
Pratik Pai for Plaintiff and Learned Advocate Usha Rahi for proposed
defendant nos. 7 & 8. I also heard Learned Advocate Pritesh Rajgor for
Defendant No. 2.
6. Learned Advocate for the plaintiff Jay Chhabria submitted
that the plaintiff has been providing services to the defendant no. 1 for
last six years pursuant to the various Agreements. He also submitted
that the proposed defendant nos. 3 and 4 and defendant no. 1 are one
and the same and the companies under the umbrella of larger group i.e.
the UTS group. The proposed defendant nos. 3 and 4 are necessary
parties to the suit for effectively adjudicating the suit. He also submitted
that defendant nos. 5 and 6 are incharge of the daytoday functioning
of the defendant no. 1 company, while the proposed defendant nos. 7
and 8 are the representatives of the defendant no. 2 and incharge of
the operations of the defendant no. 2. According to the plaintiff, the
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defendant nos. 2 to 8 are necessary parties to the suit. Hence, he
submitted to add them as defendants in the suit. He also submitted that
by way of proposed amendment, the plaintiff also wants to plead
subsequent event. During pendancy of the suit, the defendants have
disobeyed the order of the Court. He submitted that the proposed
amendment is essential for just decision of the case. The proposed
amendment is formal in nature. He also submitted that the name of
defendant no. 3 is appeared in the letter dated 24.07.2019. So also, the
name of the proposed defendant no. 4 was appeared in the letter dated
24.07.2019. The amendment sought at pretrial stage and amendment
is not barred. No prejudice will be caused to the defendant. In support
of his submission, he has placed reliance on the following rulings:
a) Rajkumar Gurawara (Dead) through Lrs Vs. S.K. Sarwagi and
Company Private Limited & Anr. : (2008) 14 SCC 364 wherein
it is observed that, “Amendments to pleadings grant of scope –
prejudice likely to be caused depending on procedural stage at
which amendment sought – Only affects degree of liberality in
allowing the amendment in terms of statutory limitations in the
proviso to Or.6 R.17 – Just and proper amendment, held, can be
introduced at any stage as may be necessary for the purpose of
determining the real questions in controversy”.
b) Rameshkumar Agarwal Vs. Rajmala Exports Private Limited &
Ors. : (2012) 5 SCC 337 wherein it is observed that, “Suit filed
for specific performance of agreement of sale of immovable
property, pleading that entire consideration under the agreement
had been paid – Amendment application filed immediately after
filing of suit and before commencement of trial seeking to explain
the same by giving details of how payment was made – Held,
proposed amendment would not alter cause of action, nor would it
cause inconsistency in case of plaintiff or prejudice to appellant –
defendant – Hence amendment rightly allowed.
7. Learned Advocate for the defendant no. 2 namely Pritesh
Rajgor submitted that the Chamber Summons taken out by the plaintiff
is badinlaw. The plaintiff has suppressed material facts from the Court.
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He also submitted that the proposed defendant nos. 3 to 8 are not
necessary parties to the suit. Hence, he submitted that the Chamber
Summons be rejected.
8. Learned Advocate Usha Rahi for proposed defendant nos. 7
& 8 submitted that the time of Agreement was already expired. Issue of
termination is remained. The defendant no. 7 is exemployee. He has
resigned from the job. The defendant nos. 7 and 8 are not necessary
parties to the suit. He also submitted that no averment was made by the
plaintiff against the defendant no. 2. Hence, he prayed for dismissal of
the Chamber Summons.
9. Heard both sides. According to the plaintiff the defendant
no. 1 and proposed defendant nos. 3 and 4 are one and the same and
the companies under the umbrella of larger group i.e. the UTS group.
The defendant no. 1 is making payment through defendant nos. 3 and
4. It is further contention of the plaintiff that the defendant nos. 5 and 6
are the incharge of the daytoday functioning of the defendant no. 1.
While proposed defendant nos. 7 and 8 are the representatives of the
defendant no. 2 and are incharge of operation of the defendant no. 2.
It is further contention of the plaintiff that the defendants have
deliberately disobeyed the order passed by the Court on 18.02.2020.
Accordingly, the plaintiff wants to amend the plaint. It is the case of the
defendants that the defendant nos. 3 and 4 are not necessary parties to
the suit. The plaintiff has failed to demonstrate how the proposed
defendant nos. 3 to 6 have direct interest in the subject matter of the
present suit which is one of the primary requirements under Order 1
Rule 10 for impleading party to the suit. Learned Advocate for the
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defendant urged that the plaintiff is not entitled to amend the plaint, as
the proposed defendants are not necessary parties to the suit. It is
settled principle of law that the merits or demerits of the amendment
need not be considered at the time of deciding the application for
amendment. According to the plaintiff, as per letter dated 24.07.2019,
the defendant no. 1 and proposed defendant nos. 3 and 4 are one and
the same and the companies under the umbrella of larger group i.e. the
UTS group. The plaintiff placed on record the copy of letter issued by
UTS, Russia. On perusal of the said letter, which is marked as Exh.'A', it
is mentioned in the said letter that UTS Travel Group LP and UTS
Hotelbook PTE. Ltd. are the same companies and part of one UTS
group. Thus, it is clear that there is a commonality of management in
respect of defendant no. 1 as also the proposed defendant nos. 3 and 4.
In my view, the proposed defendant nos. 3 and 4 are necessary parties
to the suit in order to decide the matter effectively and completely.
10. According to the plaintiff, the defendant nos. 5 and 6 are
incharge of daytoday functioning of the defendant no. 1 and
proposed defendant nos. 7 and 8 are the representatives of the
defendant no. 2 and are incharge of operation of the defendant no. 2.
This fact is not specifically denied by the defendants. By impleading the
defendant nos. 3 to 8, no hardship or prejudice will be caused to the
defendants as well as to the proposed defendants. In my view, the
proposed defendant nos. 3 to 8 are necessary and proper parties to the
suit. Their presence is necessary for decision of the case.
11. The plaintiff also submitted that the defendants have
willfully disobeyed the order passed in Notice of Motion No. 902 of
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2020. By way of proposed amendment, plaintiff wants to bring on
record the subsequent events occurred during pendancy of the suit. If
during the pendancy of the suit, certain events have been occurred and
the plaintiff wants to bring on record the said facts on record, in that
case, the Court can permit amendment. Thus, in such case, it is
desirable to take all these facts on record by way of proposed
amendment. It is subsequent event entitling the plaintiff to amend the
plaint. In my view, whether there was cause of action against the
proposed defendant nos. 5 to 8 or not, that question can be decided at
the time of final hearing. Hence, unless facts relating to the subsequent
events are taken on record, issues pertaining to the same cannot be
adjudicated. The proposed amendment is relating to the main dispute in
the suit. The proposed amendment is essential to decide the real
controversy between the parties. Therefore, it is necessary to permit the
plaintiff to amend the plaint.
12. While deciding the application for amendment, ordinarily
the Court must not refuse bonafide, legitimate, honest and necessary
amendment. Liberal approach should be the general rule particularly in
cases where other side can be compensated with cost. Normally,
amendments are allowed in pleading to avoid multiplicity of litigation.
In view of the fact that amendment applications came to be filed
immediately after the filing of suit and before commencement of trial
needs to be allowed. Order 6 Rule 17 of Code of Civil Procedure confers
jurisdiction of Court to allow either party to alter or amend his pleading
at any stage of proceeding on such terms as may be just. Such
amendments seeking determination of the real question of the
controversy between parties shall be permitted to be made. Pretrial
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amendments are to be allowed liberally. As rightly pointed out by
Learned Advocate for the plaintiff, the opposite party is not prejudiced
because they will have an opportunity of meeting the amendment
sought to be made. Hence, I pass the following order :
ORDER
1) The Chamber Summons No. 444 of 2020 is allowed.
2) The plaintiff is permitted to carry out amendment in the
plaint in terms of Schedule 'I' annexed with the Chamber
Summons.
3) The plaintiff is also permitted to add proposed
defendant nos. 3 to 8 in the plaint.
4) After carrying out the necessary amendment in the
plaint, the summons be issued to the proposed defendant
nos. 3 to 8.
5) This amendment shall take into effect from the date of
filing of this Chamber Summons.
6) The defendant nos. 1 and 2 are permitted to file
additional Written Statement on record, if they desires.
7) Order accordingly.
Dated : 03.03.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 03.03.2023
Transcribed on : 10.03.2023
Signed on : 01.04.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01.04.2023 5.30 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
03.03.2023
Judgment/order signed by P.O on 01.04.2023
Judgment/order uploaded on 01.04.2023
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