Order 1

Order Details: Chamber summons
Pdf Text: C.S.597/18 in SC 2722/13 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.597 OF 2018
IN
S.C. SUIT NO. 2722 OF 2013
(CNR.NO.MHCC010040862018)
Axis Bank Limited .... Plaintiff
Versus
Allen Velegaleti Franklin ….Defendant
Shri. Manswi Agarwal, Advocate for Plaintiff.
Shri. Gerwani, Advocate for Defendants.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt. Judge
CR No. : 32
Dated : 27th February, 2019.
ORDER
. Defendant taken out this Chamber Summons for
amendment in the counter claim as per the schedule annexed with the
Chamber Summons.
2. The contention of the defendant in the Chamber Summons
that it is undisputed fact that plaintiff bank was to pay the sum of
Rs.1,30,000/ as a licence fee in respect of Flat No.33 on the 9 th Floor,
Jai Kiran Coop. Housing society, Cuffe Parade, Mumbai – 05, in respect
of Leave and Licence Agreement occupation by Shri. Narendra Patra.
Defendant further states that Rs.30,000/ per month was against Leave
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C.S.597/18 in SC 2722/13 2
and Licence Agreement, Rs.30,000/ against Amenity Agreement and
Rs.70,000/ per month which way the natural rate of interest of 10% in
the fixed deposit against Rs.70 Lakhs which was to be paid by plaintiff
to the defendant. Though the bank had agreed to pay Rs.1,30,000/
per month but defendant not received the entire licence fee and there is
a short fall to the said effect. Plaintiffs have deliberately not annexed
the document with malafide reason as it would falsify their case.
Corporation had adjudicated the property tax on the defendant flat was
to be levied including the yield of 8% interest rate on Rs.70 lakhs
deposit as it was considered to be part of rental amounting to
Rs.46,0700/ per month. Therefore, total rental Rs.76,700/ per month
was adjudicated by M.C.G.M. for property tax levy. Hence, defendant
taken out the present Chamber Summons and prays that Chamber
Summons be made absolute in terms of prayer.
3. Plaintiff tendered the reply on Chamber Summons. The
facts sought to be brought on record by the present Chamber Summons
are in the nature of set off and are entirely time barred. Defendant has
filed his written statement and set off in September 2013. Defendant
also filed his counter claim against the plaintiff in 2013. Now, the
defendant seeks to amend and add a new defence of set off to his
written statement without any explanation. It is denied by plaintiff that
plaintiffs were payable a sum Rs.1,30,000/ to the defendant as alleged
or otherwise. Under the Leave and Licence Agreement an amount of
Rs.30,000/ per month was payable as the licence fee and same was
duly paid by plaintiff to the defendant. Defendant now cannot be
permitted to incorporate the pleading in relation to the alleged Amenity
Agreement dtd. 26.08.2008 after 5 years from the date of filing written
statement. Remaining all the averments in the Chamber Summons are
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C.S.597/18 in SC 2722/13 3
specifically denied by the plaintiff on affidavit. Plaintiff prays that
Chamber Summons be dismissed with costs.
4. Heard Ld. Adv. Manswi Agarwal for plaintiff and Adv.
Garwani for defendants.
5. The present suit is for refund of security deposit of Rs.70
Lakhs with interest against the defendant. It is the specific averment of
the plaintiff bank in para 3 (a) (ii) that plaintiff would pay to the
defendant Rs.30,000/ per month for the use and occupation of Flat
No.33 by Shri. Narendra Patra who is the employee of the Axis Bank.
6. Defendant tendered his written statement and set off on
24.09.2013. I have perused the written statement carefully. In the
written statement no where mentioned by the defendant that plaintiff
bank had agreed Rs.1,30,000/ per month for the use and occupation of
Flat No.33 by Shri. Narendra Patra. On the other hand, plaintiff came
before the court with a specific case that plaintiff bank would pay
Rs.30,000/ per month as a licence fee for the use and occupation of flat
No.33. Defendant first time by way of the present Chamber Summons
has made the statement that plaintiff bank has agreed to pay the sum of
Rs.1,30,000/ as the licence fee in respect of Flat No.33.
7. Defendant also tendered his counter claim on 24.09.2013.
Defendant by way of present Chamber Summons seeking amendment in
his counter claim. Counter claim is substantially a cross suit. Learned
Adv. Shri.Gerwani for the defendant submitted that plaintiff with
malafide intention not tendered the Amenity Agreement before the
court. If the defendant relied on the said Amenity Agreement and
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which is the part and parcel of Leave and Licence Agreement dtd.
26.08.2008 then nobody has prevented the defendant to place the said
Amenity Agreement on record for the perusal of the court. But
defendant made the allegations against the plaintiff bank that they have
deliberately not annexed the above documents with malafide reasons as
it would falsify their case. In fact, there is no document place on record
by the defendant to show and suggest that plaintiff bank had agreed to
pay Rs.1,30,000/ to him as per the arrangement as averred by
defendant in his Chamber Summons.
8. Defendant for the first time trying to place on record the
agreement for Amenity Exh.A annexed with the affidavit in support of
Chamber Summons. Ld. Advocate Shri. Gerwani for the defendant
submitted that defendant being an NRI and he was required to return to
his home abroad and due to oversight missed this agreement to be
incorporated in the written statement. On the other hand, Ld. Adv.
Manswi Agarwal for plaintiff submitted that defendant is a NRI but he
also claimed the amount of Rs.16,02,000/ for the cost of air ticket and
travel expenses from the plaintiff bank by way of counter claim.
Therefore, defendant was aware and he used to give the necessary
information to his representative Advocate, therefore the reason
assigned by the defendant for late filing the Amenity Agreement is
nothing but only to protract the matter as rightly pointed out by Ld.
Adv. Manswi Agarwal for plaintiff bank and hence, the reason for
condonation of delay in late producing the Amenity Agreement on
record is not found to be justified.
9. Defendant has placed reliance on :
1. Hemlata Harish Bhatia & Another Vs. Vallabhdas Lalchand
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Dhamanmal & Another in Writ Petition No.4346 of 2017 of the
Hon'ble High Court of Bombay.
2. Rajkumar Gurawar (Dead) thr. L.R.s Vs. M/s. S.K. Sarwagi
and Co. Pvt. Ltd. And Anr., in Civil Appeal No.3576 of 2008 of the
Hon'ble Supreme Court.
10. Plaintiff has placed reliance on :
1. South Konkan Distilleries and Another Vs. Prabhakar Gajanan
Naik And Others, (2008) 14 Supreme Court Cases 632.
2. Revajeetu Builders And Developers Vs. Narayanaswamy and
sons and Others, (2009) 10 Supreme Court Cases 84.
3. State of Maharashtra Vs. Hindustan Construction Company
Limited, (2010) 4 supreme Court Cases 518.
4. Balwant Singh (Dead) Vs. Jagdish Singh and Others, (2010) 8
Supreme Court Cases 685.
11. The sum and substance of the ratio laid down in above
citations is that before the amendment can be allowed by the court is
whether such amendment is necessary for the determination of the real
question in controversy and whether the amendment sought is
imperative for proper and effective adjudication of the case.
12. In the instant case, there is no pleading in the Chamber
Summons when and where the amenity agreement was found therefore
not inspire confidence. Amenity agreement is out of scope and not
imperative to adjudicate the suit and counter claim. Amenity
agreement not pleaded in the written statement. Defendant trying to
enlarge the scope of counter claim and set of. The facts which
defendant wants to brought on record by way of present Chamber
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summons in the counter claim are time barred.
13. The suit is for refund of security deposit with interest.
Defendant tendered counter claim along with his written statement.
In the counter claim defendant has claimed a sum of Rs.96,18,145/
with interest @ 16.5% p.a. from the plaintiff bank.
14. As I have already discussed above, the amount of
Rs.1,30,000/ was not agreed between the parties for the use and
occupation of Flat No.33. Therefore, the Amenity Agreement which
defendant wants to produce on record which is not the subject matter in
dispute. But defendant wants to bring on record the new facts by
producing the said Amenity Agreement. Therefore, no question arise to
give direction to the plaintiff and its officers to disclose the mode of
payment made to the defendant as the amount of Rs.1,30,000/ was
never agreed between the parties as a total rental compensation.
15. In view of above discussion, I proceed to pass the following
order.
ORDER
1. Chamber Summons No.597/2018 is dismissed with costs.
Date : 27.02.2019. (Pushpa N. Rao)
Ad hoc Asstt. Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer : 27.02.2019.
Signed by HHJ on : 27.02.2019.
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 28.02.2019 at 11.35 a.m.
NAME OF THE STENOGRAPHER : P.P.Parab
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
27.02.2019
Judgment/Order signed by P.O. on 27.02.2019
Judgment/Order uploaded on 28.02.2019
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