Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch. Sum. No.501/2018 in Suit No.3204/2010
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBR SUMMONS NO. 501 OF 2018
CNR NO.: MHCC010034902018
IN
SUMMARY SUIT NO. 3204 OF 2010
(HIGH COURT SUIT NO. 546 OF 2010)
M/s. Vimal Intertrade Pvt. Ltd. ...Plaintiff
Versus
Smt. Hemlataben L. Gala and another ...Defendants
Appearances:
Advocate Ms. Rawat for the plaintiff.
Advocate Ms. Geeta Baudha for defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 29th JANUARY, 2020.
ORAL ORDER
This is a Chamber Summons taken out by plaintiff to amend the
plaint.
2. Plaintiff has stated that in the Written Statement defendant has
taken a defence that the goods by name Versenex 80E was never
delivered by the plaintiff to defendant and the defendant never
instructed plaintiff to deposit cheques with their bankers for realization.
Plaintiff has further stated that he completely relied upon the skills and
advices given by his earlier Advocate, who adviced that it is not
necessary to annexe the documents relating the sale and supply of the
goods in the plaint and in the list of documents filed with affidavit of
examinationinchief as they have filed the suit on the basis of
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dishonoured cheques issued by deceased defendant and therefore, the
said documents which are in fact available with the office of the
plaintiff were neither annexed in the plaint nor averments with respect
of the same is made in the plaint. Plaintiff has further stated that in the
month of October, 2017, he found out the documents signed by the
deceased defendant relating to further sale of said product by name
Versenex 80E from plaintiff's godown address at Bhiwandi area.
Thereafter, when all these documents were workout by their present
Advocate, he was made understand that these documents are required
to be placed on record.
3. Plaintiff has further stated that the documents with respect of
delivery goods are very much essential and necessary to decide issues
involved in the matter. Plaintiff has further stated that he has to make
necessary averments in the plaint about status of the legal heirs also of
the deceased defendant and prayed to carry out amendment in the
plaint.
4. Defendant has filed reply to this Chamber Summons and stated
that the deponent who has taken Chambers Summons is still under
cross examination. Defendant has contended that there is gross and
inordinate delay and latches in making present application. Defendant
has further stated that the Chamber Summons is taken out with
malafide intention to delay the proceeding and counter blast his
defence and dislodge the cross examination of witness of the plaintiff.
Defendant has further stated that such amendment is not necessary
determining the real controversy between the parties. Defendant has
further stated that the Chamber Summons is taken out after going
through the Written Statement of defendant and cross examination of
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witness plaintiff. Defendant has further stated that the proposed
amendment would change the cause of action and introduce totally new
case contrary and inconsistent with the original pleadings and there
will be change in nature and character of the suit.
5. Defendant has contended that the purported documents referred
by plaintiff are not signed by deceased original defendant and they are
forged, fabricated, bogus and got up documents. Defendant has stated
that plaintiff is trying to improve their case. Defendant has further
stated that plaintiff is a Private Limited Company and their Directors
are well educated, qualified and well equipped with legal team.
Defendant has further stated that though it was observed in the Order
dated 04.02.2011 that, “there was lack of averments about the delivery
of the goods in the plaint and in the Written Statement defence is taken
that goods never delivered to defendant still plaintiff never attempted to
take out the Chamber Summons and now when partly cross
examination of plaintiff's witness is over then to fill up lacuna the
Chamber Summons is filed.
6. Defendant has contended that plaintiff has made self
contradictory statements in the plaint, but defendant has not stated
which are that statements affecting the controversy between the parties.
It appears in the plaint, plaintiff has alleged that their Company is
doing business of trading chemicals and dyes. In the plaint itself it is
stated that the plaintiff sold, supplied and delivered various
consignments of Versenex 80 E to the deceased defendant. Thereafter,
there are averments regarding the cheque issued towards the
consideration by defendant of the same. Now plaintiff wants to amend
the plaint to make allegations that the goods were delivered to
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defendant and regarding supply of goods to defendant. Considering
already made pleadings by the plaintiff that the plaintiff sold goods to
defendant and for its consideration cheque was issued, it appears the
proposed amendment is not changing the nature of the suit nor
contrary to any of the pleadings. It appears for proving plaintiff's case
delivery of goods is prima faciely essential factor. When plaintiff has
filed the suit for recovery of money i.e. consideration for goods sold, if
he is not allowed to prove the delivery of goods, it will amounts to
denying him to fight case on merits. Therefore, in the interest of justice,
it is necessary to allow the amendment.
7. Plaintiff has stated that his earlier Advocate did not suggest to
make such pleadings and file documents and further stated that in
October, 2017 he found documents regarding sale of goods to
defendant. It is a matter of record that the crossexamination of witness
have started. But if plaintiff is allowed to carry out amendment, then
defendant is having every opportunity to crossexamine plaintiff's
witness on that aspect. Therefore, it appears no harm or prejudice
would be cause to defendant if at this stage amendment is allowed.
8. It appears, suit is of the year 2010 and amendment is proposed
in the year 2018 after the crossexamination started. It appears the suit
is filed by plaintiff for recovery of money. Therefore, it appears there is
no deliberate intention on the part of plaintiff to delay the proceedings.
It appears after filing of suit, after long time plaintiff is made
understand by his Advocate the documents are required to be placed on
record by his new Advocate, hence defendant is entitled for the cost for
such delayed action of filing Chamber Summons.
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9. Ld. Advocate for the defendant has cited judgment in case of the
Hon'ble Apex Court in case of Vidyabai & Ors vs. Padmalatha & Anr.
2009(1) All MR 471 (S.C.), in which it is held that, “it is the primal
duty of the court to decide as to whether such an amendment is necessary
to decide the real dispute between the parties. Only if such a condition is
fulfilled, the amendment is to be allowed. However, proviso appended to
Order 6, Rule 17 of the Code restricts the power of the court. It puts an
embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of
this nature is limited. Thus, unless the jurisdictional fact, as envisaged
therein, is found to be existing, the Court will have no jurisdiction at all to
allow the amendment of the plaint.” In the case in hand it appears the
amendment is necessary to decide the real dispute between the parties
as to the delivery of the goods and whether defendant is bound to pay
consideration for alleged goods delivered. Hence, this case law is
squarely applicable to the case in hand.
10. Ld. Advocate for the defendant cited judgment of the Hon'ble
Bombay High Court in case of Sou. Shakuntala J. Gujar Vs. Shri. Dilip
R. Pawar & anr., 2001(2) ALL MR 566, in which it is held that, “the
factum of existence of the Will executed by the deceased was known to the
Petitioner much prior April 1990; and in that context the Petitioner had
made an application to the Mamlatdar on 19.04.1990. Besides the said
application the petitioner also made an application to the Tahasildar on
2141990, where he clearly asserts that deceased has executed a Will
which has been registered with the Sub Registrar. Inspite of this
knowledge, the Petitioner did not think it appropriate to make a reference
about the same in the plaint, as filed before the trial Court. It is for the
first time, by way of amendment application, filed on 971993, that the
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Petitioner wanted the Court to accept his stand that he acquired the
knowledge about the existence of the Will only when the written statement
came to be filed by the Respondent on 15121990. The plea advanced on
behalf of the Petitioner, in my view, is clearly belied from the documents
placed on record; particularly the letters sent by the Petitioner to the
concerned authorities would indicate that prior to April 1990 the
Petitioner was aware about the existence of the Will. If this finding, as
recorded by the court below, cannot be taken exception to, then inevitably
the proposed amendment, by way of application below Exh.33 dated 197
1993, would be time barred.” In the case in hand plaintiff has specifically
contended that his previous Advocate told him that the suit is filed on
the basis of dishonoured cheque, therefore, the documents regarding
sale are not necessary to be produced with the Plaint and therefore,
plaintiff did not produce the same. Plaintiff has further stated that when
he talked with his new Advocate, he was made understand that such
documents are necessary to be produced. It appears in the plaint, it is
already pleaded that plaintiff sold goods to defendant and defendant
issued cheuqe for the same. It cannot be presumed that the plaintiff
understood all the documents filed in the proceedings and its effect in
the proceeding. The proposed amendment is not contrary to the stand
taken in the Plaint. Therefore, in the case in hand there is nothing to
show that plaintiff had knowledge that he has to amend the plaint and
make pleading regarding delivery of goods. Therefore, it does not prima
faciely appears that such amendment is time barred. Therefore, facts of
the cited case and in hand are different. Hence, this case law is not
applicable to the case in hand.
11. Ld. Advocate for the defendant cited judgment of the Hon'ble
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Bombay High Court (Panaji Bench) in case of Mr. Conception
Fernandes & Anr. vs. Mrs. Tasneem Shaikh & Ors., 2014(5) ALL MR
751, in which it is held that, “the criterion is not whether any averment
regarding due diligence is made, and the real test is whether the Court
has, by taking into account the facts and circumstances of the case, decided
as to whether or not the party could have raised the matter earlier after
exercise of due diligence.” In the case in hand plaintiff has specifically
stated that his previous Advocate told him that documents regarding
sale are not necessary to be annexed with the plaint and the matter
proceeded and his new Advocate told him that such documents are
necessary to be produced. It appears, to decide real controversy
between the parties, the proposed pleadings regarding delivery of goods
and documents is necessary. There is nothing brought on record why
plaintiff will withhold and shy away for making such pleading, if he
would have understood that it is necessary to plead so inspite of his
Advocate's advice. Therefore, it appears only on receiving new
Advocate's advice, plaintiff has understood that he has to amend
pleading and file documents so that real controversy can be decided by
the Court properly. Hence, it appears plaintiff could not have raised the
matter earlier. Hence, this case law is squarely applicable to case in
hand.
12. Ld. Advocate for the defendant cited judgment of the Hon'ble
Apex Court in case of Mashyak Grihnirman Sahakari Sanstha
Maryadit Vs. Usman Habib Dhuka, 2014(2) ALL MR 910 (S.C.), in
which it is held that, “indisputably, the plaintiffrespondent no.1 was the
officebearer of the Society at the relevant time and by Resolution taken by
the Society respondent No.1 was authorized to complete the transaction.
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Hence, it is incorrect to allege that the plaintiffrespondent No.1 was not
aware about the transaction of 1989. Moreover, before the institution of
the Suit in the year 2010, the plaintiffs allegedly came to know about the
Conveyance Deed dated 8th February, 1989, some time in the year 2009,
but relief was not sought for in the plaint which was filed much later i.e.
14th October, 2010. The High Court has not considered these undisputed
facts and passed the impugned order on the general principles of
amendment as contained in Order VI Rule 17 of the Code of Civil
Procedure. Hence we do not find any ground for allowing the amendment
sought for by the plaintiffs which was not only a belated one but was
clearly an afterthought for the obvious purpose to avert the inevitable
consequence.” In the case in hand plaintiff has already stated that
documents which he proposed were available with him, but his earlier
Advocate told him such documents are not necessary to be produced as
the case is filed on the basis of cheques and later his new Advocate
made him understood that the documents are necessary to be produced.
Considering the circumstances of the present case, it appears that
plaintiff was not aware that he has to plead about delivery of goods and
documents in the Plaint. Therefore, there is nothing to show that
plaintiff intentionally withhold the documents or did not amend the
Plaint. Therefore, facts of the cited case and in hand are different.
Hence, this case law is not applicable to the case in hand.
13. Ld. Advocate for the defendant cited judgment of the Hon'ble
Bombay High Court (Aurangabad Bench) in case of Vishnu s/o.
Pandurang Pawar vs. Smt. Dropadabai w/o. Subhash Pawar & Ors.,
2009 (5) ALL MR 559, in which it is held that, “if the amendment is
allowed to be brought on record then that may affect marital status of
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respondent No.1 with deceased Subhash. Apart from this, the trial court
has in many words has observed that the application is filed by the
petitioner with an intention to prolong the proceeding of the other suit as
well as the present suit.” In the case in hand it appears if the amendment
is allowed, it will not prejudice to the interest of defendant. The
proposed amendment is not contrary to the pleadings of plaintiff.
Plaintiff has already pleaded that he sold goods to defendant and for
the same cheques were issued. It appears on plaintiff's realising and
understanding given by new Advocate that such pleading is necessary,
he has to come before the Court praying for amendment. Hence it
appears facts of the cited case and in hand are different. Hence, this
case law is not applicable to the case in hand.
14. Ld. Advocate for the defendant cited judgment of the Hon'ble
Apex Court in case of B.K.N. Pillai vs. P. Pillai, 2000(1) RCR, Civil
Appeal No.722223 of 1999 (Arising out of SLP (Civil) No.14540
14541 of 1999) D/d. 13.12.1999, in which it held that:
(i) Principles applicable to amendments of plaint are equally applicable to
amendments of written statements.
(ii) Proposed amendment should not cause such prejudice to the other
side which cannot be compensated by costs.
(iii) No amendment should be allowed which amounts to defeating a legal
right accuring to opposite party.
(iv. Delay in filing petition for amendment of pleadings should be
properly compensated by cost.
In the case in hand there is nothing to show that if proposed
amendment is allowed, it will prejudice to other side on defeating any
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legal right of defendant. Considering the circumstances that the suit is
filed in the year 2010 and the present Chamber Summons is filed in the
year 2018, it will be proper to compensate defendant for delay in filing
the Chamber Summons promptly. Hence, this case law is squarely
applicable to the case in hand.
15. As discussed above, it appears proposed amendment by plaintiff
is not contrary to the original pleadings of plaintiff. It is necessary to
decide such real controversy between the parties. It appears if the
amendment is allowed, it will not cause any harm to defendant. But the
application is filed at delayed stage, considering the circumstances of
the case, it will be proper to allow amendment subject to cost to be
given to defendant. Hence, following Order:
ORDER
1. Chamber Summons No.501 of 2018 is allowed subject to cost of
Rs.3000/ to be given to defendants by plaintiff.
2. Plaintiff to carry out amendment within 14 days from the date of
this order.
3. Chamber Summons No. 501 of 2018 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 29.01.2020. City Civil Court,
Gr. Bombay.
Dictated on : 29.01.2020
Transcribed on : 29.01.2020
Signed on : 29.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31.01.2020 At 05.30 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
29.01.2020
Judgment/Order signed by P.O. on 29.01.2020
Judgment/Order uploaded on 31.01.2020
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