Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CS453-18 Suit 6012-07
CNR No.MHCC010031512018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMOS NO. 453 OF 2018
IN
S.C. SUIT NO. 6012 OF 2007
Mr. Rajendra G. Deshpande ] .. Plaintiff
Versus
Schindler India Pvt. Ltd., ] .. Defendant.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 17th April, 2018.
Adv. Rajeev Matkar for plaintiff.
Adv. Rajmani Verma for defendants.
ORDER
The defendant has taken out this chamber summons for
amendment to the written statement.
2. It is stated that the evidence of the plaintiff is completed
and the case was fixed for the evidence of the defendants. At the time
of preparation of draft evidence affidavit, it was noticed by the
defendant that certain vital facts were not included in the written
statement. It is stated that there are inadvertent omission and/or lack
of clarificatory statement and therefore the same were not included in
the written statement due to inadvertence. Inspite of due diligence, the
defendant could not carry out the amendment earlier. Hence, the
instant chamber summons.
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3. The plaintiff has filed reply submitting therein that there is
gross delay in filing the chamber summons. It is stated that the written
statement is drafted by the top legal firm. The said written statement
was filed in November, 2009, which runs into 25 pages. Further, the
cross examination is already conducted and there is detailed say given
by the defendant on the documents filed by the plaintiff. In these
circumstances, it cannot be said that the defendant could not notice the
omission earlier. The plaintiff has stated that the facts which defendant
want to bring on record, are already mentioned. Hence, prayed for
rejection of the chamber summons.
4. Heard Advocate for the plaintiff and defendant. Perused
the authorities cited by the defendant.
5. The defendant has placed reliance on the following
authorities:
i) NTPC Limited Versus Reliance Industries Limited [2009
(111) Bom LR 3077]
ii) Jai Jai Ram Manohar Lal Versus National Building
material supply, Gurgaon [1969 AIR 1267
6. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
1. Whether the defendant is entitled for
amendment to the plaint, as prayed ? : No.
2. What order ? : As per final order.
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REASONS
Point No.1:
7. The Advocate for the defendant has submitted that there
are certain omissions in the written statement, which could not be
noticed earlier and the same were noticed at the time of filing of
evidence affidavit of defendant and therefore there is due diligence and
that the vital facts were not mentioned in the written statement due to
inadvertence.
8. The plaintiff has submitted that in the letter dated
February 2017 produced by the plaintiff, it is specifically mentioned
that the plaintiff was appointed in BandB. The defendant inspite of
this, want to carry out the amendment. Other pleadings sought to be
incorporated in written statement by way of amendment are matter of
law and defendant can very well argue and rely upon the same.
Further, the defendant failed to establish due diligence.
9. The defendant has relied upon the ratio laid down in case
of NTPC Limited (supra), wherein the amendment was sought about
the certain events that had transpired after filing of the written
statement and therefore the amendment was allowed. However, in the
present case, there is nothing on record to show that the facts which
defendant want to incorporate has occurred after filing of the written
statement. Hence, the said ratio will not help the case of the
defendant.
10. The defendant has further relied upon the decision in case
of Jai Jai Ram Manohar Lal (supra) to submit that the amendment
should not be refused on technical grounds. Now, in the present case,
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the written statement was filed in November 2009. Thereafter, issues
were framed on the pleadings of both the parties, plaintiff has filed
evidence affidavit and defendant has conducted the cross and now
when the case is fixed of its evidence, the defendant has taken out this
chamber summons. In view of the amendment to Order6 Rule17 of
Code of Civil Procedure, the defendant is required to show due
diligence. However, the defendant has merely stated that because of
inadvertence, the defendant could not file application earlier.
However, the said reason will not go to show the due diligence, when
the defendant has conducted the crossexamination. In these
circumstances, the ratio in case of Jai Jai Ram Manohar (Supra), will
not help the case of the defendant. I have also perused the amendment
sought to be carried out by the defendants and I do not find that it is
necessary for effective decision of the case. In these circumstances, I
have no hesitation to answer Point No.1 in negative and proceed to
pass the following order.
ORDER
The Chamber Summons No.453 of 2018 is dismissed and
accordingly disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 17/04/2018
Dictated on: 17/04/2018
Transcribed on: 18/04/2018
Signed on: 19/04/2018
dbm/CR4
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
19/04/2018 at 11.00 a.m.
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
17/04/2018
Judgment/Order signed by P.O.on 19/04/2018
Judgment/Order uploaded on 19/04/2018
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