Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.737/19 1 Suit No.3913/13
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.737/2019
(CNR No.MHCC010037572019)
IN
S.C SUIT NO.3913/2013
Akash Timblo .. Plaintiff
V/s.
Cricket Club of India Ltd. .. Defendant
Appearance :
Ld. Adv. Mr. O. Mohandas for plaintiff.
Ld. Adv. Mr. Ratnani for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 25.11.2019.
ORAL ORDER
1. Perused chamber summons (C/S) supported by an affidavit
of plaintiff Akash A. Timblo and affidavit in reply filed on behalf of the
defendant of Ms. Nandini Dwivedi, Law Officer of defendant CCI.
2. I have heard Ld. Counsel for the plaintiff and Ld Counsel
for the defendant at length and perused various citations and
authorities submitted by them in support of their submissions.
3. It is submitted on behalf of the plaintiff that, the plaintiff
hails from a prominent and wellknown business family in Goa. He is
having good reputation in Mumbai and Goa. The plaintiff has been in
Mumbai from the year 1991 and attended Campion School situated at
13 Cooperage Road, Fort, Mumbai. Thus the plaintiff is an alumni from
a reputed school. He had his Jr. Coleged education from St. Xavier's
College, Mumbai and thereafter obtained his Bachelors Degree in
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C/S No.737/19 2 Suit No.3913/13
politics and history at Oberleen College, Ohio, USA in the year 1998.
4. It is submitted that, after completing his graduation from
abroad, the plaintiff returned to Mumbai and was in charge of the Sales
and Marketing Office of Fomento Resorts and Hotels Ltd. (FRHL). He
owns and operates five star property known as 'Cidade de Goa'. The
plaintiff occupied this position from the year 2000 till 2005. The
plaintiff's office was located at Mittal Chambers, Nariman Point in South
Mumbai. The plaintiff is seeking addition of paragraphs 11A to 11V
and paragraph 14 in the plaint.
5. Ld. Counsel for the plaintiff specifically pointed out that, in
paras 11J, 11M he has specifically pleaded that, cancellation of
membership of the plaintiff from the defendant club came to him as a
rude shock, embarrassment and loss of reputation attached to the said
defendant club. He has further pleaded that, his name has been
mentioned in forensic report prepared by KPMG, which was pointed out
by CCI to prepare the same in the context of alleged fraud perpetrated
by certain persons, who had fraudulently, in connivance with the staff
and a member of the defendant club, attempted to pass themselves off
as members of the defendant club and had thereby fraudulently utilized
the facilities of the defendant club. The above incident of alleged fraud
was discovered and was reported and published in newspaper in
Mumbai, including Times of India, Mumbai Edition and it was widely
discussed amongst public. The plaintiff has referred to the annexed
report published in Times of India, Mumbai Edition dated 23.10.2013
and alleged that, the said news report has damaged the reputation of
the plaintiff, to be linked through the KPMG Forensic Report to such
fraudsters, particularly since he has never committed any fraud or
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C/S No.737/19 3 Suit No.3913/13
misrepresentation against the defendant club. The plaintiff was not
aware of this fact unless and until it was reported in KPMG Report,
submitted in the Chamber Summons for amendment, annexed is an
extract of the report filed by the defendant club in this court on or
about 16.10.2018. This has apparently caused loss of reputation to the
plaintiff and has irreparably caused damage to his image and he has
been defamed and the same is actionable per se.
6. Considering the above aspect, the plaintiff has strongly
sought amendment in the plaint and he submitted that, there is no
delay and if there is delay, the court may kindly condone the same.
7. The plaintiff has elaborated his case in the amendment and
as per paras 14A and 16A the plaintiff is seeking further amendment,
which his consequential in nature to the above pleadings and has
claimed damage from the defendant club amounting to Rs.80 Crores. It
is lastly submitted that, in October 2018, the plaintiff came to know
about KPMC Forensic Report for the first time when it was tendered in
the court along with C/S No.1941/2018 by defendant club. In the
month of December 2018, the plaintiff met Arvind Sivakumaran who
mentioned to him that, it was common knowledge in his friends and
acquaintance that the plaintiff's membership had been terminated and
their belief that plaintiff's membership was terminated along with other
members who had fraudulently obtained membership of the defendant
club. Under the above circumstances, it is submitted that, the C/S for
amendment deserves to be allowed in the interest of justice.
8. Ld. Counsel for the plaintiff has relied upon following
authorities in support of his submission :
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1. Jai Jai Ram Manohar Lal V/s. National Building
Material Supply, Gurgaon (AIR 1969 S.C 1267)
2. B.K. Narayana Pillai V/s. Parmeshwaran Pillai
and anr. ((2000) 1 Supreme Court Cases 712)
3. Nichhalbhai Vallabhai and others V/s. Jaswantlal
Zinabhai and Ors. (AIR 1966 SC 997)
4. Omprakash Gupta V/s. Ranbir B. Goyal ((2002) 2
Supreme Court Cases 256)
5. Lakha Ram Sharma V/s. Balar Marketing Pvt. Ltd.
((2008) 17 Supreme Court Cases 671)
6. Benisham Mohanlal Khetan V/s. Mahadeo
Tukaram Borkar (AIR 1985 Bombay 462).
9. I have gone through the above authorities and taken into
consideration ratio of the said decisions.
10. Per contra, Ld. Counsel for the defendant club has strongly
opposed the C/S and relied on the affidavit in reply filed by Nandini
Dwivedi, Law Officer of defendant club. He submitted that, all the
averments in the proposed amendment are not correct and denied by
the defendant. It is submitted that the plaintiff has not approached this
court with clean hands and has suppressed material facts, which are
absolutely germane to fair adjudication of the dispute in the suit. It is
submitted that, the plaintiff has filed present suit in the year 2013 and
challenged notices dated 6.7.2013 and 27.8.2013 cancelling his
membership, are unlawful and bad in law and illegal. Now the plaintiff
is seeking amendment in the plaint and claiming an amount of
compensation/ damage to the tune of Rs.80 Crores to completely
change the nature of the suit and cause of action in the matter.
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C/S No.737/19 5 Suit No.3913/13
11. Ld. Counsel for the defendant has further contended that,
the plaintiff has suppressed material facts from the court while taking
out the C/S. It is submitted that, the plaintiff had obtained an
application form and submitted the same for 'proposal for membership'
of the defendant club in the year 2003. He was granted life membership
of the defendant club in August 2011 under the category of being Life
member's son. In the above said application form, the plaintiff was
required to mention his father's name, his membership number, etc. The
plaintiff had malafidely mentioned his grandfather's membership
number. In the year 2008, as a matter of policy, the membership of
defendant club had been restricted only to member's children. On
11.4.2011, the defendant had issued confirmation letter to the plaintiff
under bonafide impression that on the basis of information provided by
the plaintiff that, his father was member of the defendant club. In the
year 2013, the defendant club had come across 11 cases of fraud that
inspite of obtaining membership and criminal cases were initiated
against them. In the said process, it was incumbent upon the defendant
club to undergo a forensic audit of all the memberships of the
defendant club. Therefore, KPMG was appointed to conduct the internal
audit.
12. It is further submitted by Ld Counsel for the defendant club
that, in the forensic audit, it was noticed that, the plaintiff had made
misrepresentation by mentioning his grandfather's number in the
column, which was meant for mentioning membership no. of his father
and therefore, the defendant realized that the membership given to the
plaintiff was due to wrong information provided by the plaintiff in the
application form. Thus, the action of the defendant club for cancelling
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C/S No.737/19 6 Suit No.3913/13
the membership of the plaintiff is legal and proper and therefore, the
plaintiff along with other members were communicated the decision of
executive committee of the defendant club to terminate their
membership by letter dated 27.8.2013. The defendant club had
refunded membership fees of Rs.18,05,232/ to the plaintiff vide cheque
no. 160251 dated 27.8.2013.
13. On the above factual background, Ld. Counsel for the
defendant argued that, if the C/S is allowed seeking amendment of the
plaint including addition of prayer clauses claiming compensation of
Rs.80 Crores as damages it will altogether change the nature of the case
and gives fresh cause of action. The plaintiff can file separate suit for
the same which is allegedly based on the KPMG Report. Hence,
proposed amendment cannot be allowed sa per settled legal principle.
14. Ld Counsel for the defendant further argued that, if the
proposed amendment is allowed, it will cause serious prejudice to the
rights of the defendant. The plaintiff is trying to add subsequent claim
pending the suit. In fact, the plaintiff ought to have filed separate suit
for subsequent cause of action. Ld. Counsel specifically relied upon
paras 9,10 and 11 of the affidavit in reply and argued that, the forensic
audit was done by defendant club as an abundant caution because of
fraud committed by 11 members in the year 2013. He argued that, the
plaintiff is nowhere linked to the alleged fraud due to which the
forensic audit was conducted and the plaintiff is unnecessarily mixing
up two things together and trying to invent some imaginary stories.
The plaintiff's claim for loss of reputation and defamation is nothing but
a bald claim as is not specifically pleaded along with details in the
plaint, the same are vague allegations and cannot be allowed. Under the
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C/S No.737/19 7 Suit No.3913/13
above circumstances, Ld. Counsel for the defendant referred to the
annexures with the reply affidavit and submitted that, the C/S deserves
to be dismissed with costs.
15. In support of his above submissions, Ld. Counsel for the
defendant has relied upon following authorities :
1. The Municipal Corporation of Gr. Bombay V/s.
Lala Pancham and Others (AIR 1965 Supreme
Court 1008).
2. Vijay s/o. Mohan Jagtap V/s. Sau. Sindhubai
Mohanrao Jagtap & Ors. (2011 (6) ALL MR 498).
16. I have gone through the above authorities and find that, in
the authority at Sr. No.1, Hon'ble Apex Court has held that, while
allowing amendment of plaint under Order 6 Rule 17 of CPC, if
proposed amendment introduces any new case such amendment should
not be allowed by the court.
In the second authority, Hon'ble Aurangabad Bench of
Bombay High Court has considered a case of amendment under Order 6
Rule 17 of CPC. In the said case, suit was originally filed for
cancellation of compromise deed. By way of amendment the plaintiff
sought partition of properties belonging to her father in law and
husband was not made party to the suit proceeding. It was held that,
the amendment was not permissible as it totally changed nature of the
suit and different reliefs were claimed and it was observed that separate
suit required to be filed with different cause of action.
17. Per contra, if the authorities cited and relied upon by Ld.
Counsel for the plaintiff are considered, it can be seen that, in the first
authority i.e. Jai Jai Ram Manohar Lal V/s. National Building
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C/S No.737/19 8 Suit No.3913/13
Material Supply, Gurgaon (supra), Hon'ble Apex Court has held that,
while allowing amendment of the plaint, the court is having
discretionary power and it is settled principle that amendment cannot
be refused merely on technical grounds. In para 5 of the above said
decision, it is observed that, rules of procedure are intended to be a
handmaid to the administration of justice. The party cannot be refused
just relief merely because of some mistake, negligence, inadvertence or
even infraction of rules of procedure. The court always gives leave to
amend the pleading of a party, unless it is satisfied that the party
applying was acting mala fide and that it was by his own blunder.
In the second authority i.e. B.K. Narayana Pillai V/s.
Parmeshwaran Pillai and anr. (supra), Hon'ble Apex Court has
observed in paras 3 and 5 that court should not adopt a hypertechnical
approach while deciding amendment application. Liberal approach
should be the general rule particularly in cases where the other side can
be compensated with the costs. Technicalities of law should not be
permitted to hamper the court in administration of justice. Amendments
are allowed in the pleadings to avoid uncalled for multiplicity of
litigation.
In the third authority i.e. Nichhalbhai Vallabhai and
others V/s. Jaswantlal Zinabhai and Ors. (supra), Hon'ble Apex Court
has observed in para 5 that, the amendment of pleading should be
properly construed as asking for relief for partition by metes and
bounds and not for severance of joint family status. If there had been
some mistake or misapprehension on the part of plaintiff, it was
allowed to be corrected by way of amendment. If such amendment is
refused the plaintiff may have to bring another suit and the object of the
rule for allowing the amendment to the plaint is to avoid multiplicity of
the suit, will be defeated. With the above observation, the appeal was
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C/S No.737/19 9 Suit No.3913/13
dismissed.
In the authority at Sr. No.4 i.e. Omprakash Gupta V/s.
Ranbir B. Goyal (supra), Hon'ble Supreme Court has observed in paras
11 and 12 that, it is ordinary rule of civil law that the rights of the
parties stand crystallized on the date of institution of the suit. However,
the court has power to take note of subsequent events and mould the
relief subject to the conditions viz.
(1) that the relief as claimed originally has, by reason of
subsequent events, become inappropriate or cannot be
granted;
(2) that taking note of such subsequent event or changed
circumstances would shorten litigation and enable
complete being done to the parties; and
(3) that such subsequent event is brought to the notice of
the court promptly and in accordance with the rules of
procedural law so that the opposite party is not taken
by surprise.
It is also observed that, such subsequent event may be one
purely of law or founded on facts, and court may allow amendment,
including subsequent developments, if it is necessary to allow such
amendment for the purpose of determining real question and
controversy between the parties.
18. In the fifth authority i.e. Lakha Ram Sharma V/s. Balar
Marketing Pvt. Ltd. (supra), Hon'ble Apex Court has observed in para
4 that, it is settled law that while considering whether the amendment
is to be granted or not,the court does no go into into the merit of the
matter and decide whether or not the claim made therein is bona fide
or not. It is also a settled law that merely because an amendment, if
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C/S No.737/19 10 Suit No.3913/13
allowed, may take the suit out of the jurisdiction of that court, is no
ground for refusing the amendment. The trial court had allowed the
application for amendment raising valuation of suit claim from Rs.1
Lakh to Rs.10 Lakh. However, the Hon'ble High Court had held that
such claim is arbitrary and not based on cogent material and therefore,
it was held that the application for raising valuation of claim is not
bonafide and if it is allowed it will oust jurisdiction of the court. The
amendment to that extent was disallowed by the Hon'ble High Court. It
is held by Hon'ble Supreme Court that, while deciding the amendment
application the court cannot go into the merit of the case and whether
the amendment is bonafide or not and that question which can be
decided by the court at the trial of the case. It is also settled law that,
merely because the amendment may take out the jurisdiction of the
court, is not a ground for refusing the amendment.
19. In the sixth authority i.e. Benisham Mohanlal Khetan V/s.
Mahadeo Tukaram Borkar (supra), Hon'ble Nagpur Bench of Bombay
High Court has considered that, even if amendment leading to ousting
of jurisdiction of the court is sought, such amendment can be allowed
by the court. In para 3 of the said decision, Hon'ble Nagpur Bench of
Bombay High Court has considered decision reported in the case of
Nareshchandra and Co. V/s. M/s. New Shriram Motors (1973
Mh.L.J. 54) and overruled the same by observing that, earlier decision
in the case of M/s. R. Jaikrishna & Co. V/s. A.1 Cooperative
Housing Society Limited (1971 Mh.L.J. 472) (AIR 1971 Bom. 382)
was not considered by Single Bench of High Court. It is further
observed that, having regard to the letter and spirit of the Order 6, Rule
17 of CPC and the interest of substantial justice, that decision of Single
Bench of High Court in the case of R. Jaikrishna (supra) represents the
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C/S No.737/19 11 Suit No.3913/13
correct legal position that the court has ample jurisdiction to pass
suitable orders on the application for amendment and if amendment is
allowed and carried out, the proper course to be followed is to return
the amended plaint to the plaintiff for presentation to the proper court
under Order 7 Rule 10 of CPC.
20. If ratio of all the above decisions is considered and properly
applied to the facts of the present case, I am of the opinion that, the
proposed amendment sought by the plaintiff in the present C/S
deserves to be allowed so as to enable the plaintiff to include the
subsequent developments which were not available at the time of filing
of the suit. I also hold that, the proposed amendment has been sought
by the plaintiff promptly as early as possible and it does not change the
nature of the suit claim. If the proposed amendment is not allowed, it
will result in multiplicity of litigation. The only effect of the
amendment, if allowed, is that, it may oust the jurisdiction of the court
so far as pecuniary value is concerned. However, it is clear as per
decision of Hon'ble Apex Court in the case of Lakha Ram Sharma V/s.
Balar Marketing Pvt. Ltd. (supra) and decision of Hon'ble Nagpur
Bench of Bombay High Court in the case of Benisham Mohanlal
Khetan V/s. Mahadeo Tukaram Borkar (supra) that, such an
amendment can be allowed if it has effect of ousting the jurisdiction of
the court and that effect of such amendment cannot be considered by
the court while deciding the amendment application itself, but it is an
independent aspect to be dealt with by the court, which is initially
having jurisdiction to try the case.
21. It is also a matter of record that, the proposed amendment
is sought by the plaintiff before commencement of the trial i.e.
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C/S No.737/19 12 Suit No.3913/13
recording of evidence and therefore, it is within the scope of Order 6
Rule 17 of CPC and deserves to be allowed. Hence, I proceed to pass
following order :
ORDER
Chamber Summons No.737/2019 is hereby made
absolute in following terms:
1. Plaintiff is permitted to carry out amendment in the
plaint, as proposed in schedule vide paragraphs 11(A) to
11(V) and paragraphs 14(A), 16(A) and 18(b), as
prayed, within two weeks from today.
2. The plaintiff shall file copy of amended plaint within two
weeks thereafter and serve copy of amended plaint to
other side as per procedure.
3. After the amendment is carried out, as directed above,
the court will hear the parties as to the jurisdiction
aspect of the matter and pass appropriate orders/ give
directions to the plaintiff, as the proposed amendment
has effect of ousting pecuniary jurisdiction of this Court.
C/S stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 25.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 25.11.2019
Typed on : 26.11.2019
Draft given to HHJ on 26.11.2019
Signed by HHJ on : 29.11.2019
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C/S No.737/19 13 Suit No.3913/13
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 29.11.19
TIME: 4.10 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 25.11.19
Judgment/ order signed by P.O on 29.11.19
Judgment/ order uploaded on 29.11.19
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