Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.79818
CNR No. MHCC010056192018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.789 OF 2018
IN
SUIT NO.9269 OF 1994
(HIGH COURT SUIT NO.5128 OF 1994)
Prakash Laxman Kondurkar ]
Age – Adult, Occ: ]
Residing at 26, Babul Apartments, ]
P.O. Katemanavali, Pune Link Road, ]
Kalyan (East), Dist. Thane. ]...Applicant
(Proposed Plaintiff)/plaintiff.
V/s.
ICICI Bank Ltd., ]
Corporate office at BandraKurla ]
Complex, Bandra (East), ]
Mumbai – 400 051. ]...Defendants.
Appearances:
Ld. Adv. Ms. Vaishali Ugle for the plaintiff.
Ld. Adv. Ms. Vrushali Kabre for the defendant.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 29th OCTOBER, 2018
ORDER
1. This is Chamber summons taken by defendant for
amendment in written statement.
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2. Defendant's contention is that the plaintiff filed suit for
declaration that his service contract with the defendants has came to an
end with effect from 11.12.1992 and further challenging the order of
dismissal dated 27.1.1997 passed by the Disciplinary Committee of the
defendant Bank at Sangli and all the papers and documents of the said
Bank at the Sangli. Sangli Bank was merged in the ICICI Bank Limited
in the year 2002 and hence ICICI Bank Ltd was incorporated as party
defendant in the present suit. However, when this defendant joined as
party to the present suit all the documents and records pertaining to the
present suit were not available with the defendant. It further
contended that at the time of merger some of the officers of the
erstwhile Sangli Bank were taken on the pay roll of ICICI Bank and they
were looking after the present suit. However, the said officers used to
attend office at Sangli and said officers used to give instructions to the
officers in Mumbai office of the defendant in respect of the present suit,
and the officers in Mumbai used to coordinate with the advocate. And
thereafter, the defendant filed its written statement on the basis of
information available and found relevant by the then officers of this
Bank with this defendant and instructions given by Mr. Kumbhar in
respect of the subject matter of the suit.
3. It further contended that recently Mr. Kumbhar got retired
from the defendant Bank and therefore, handed over all the document
pertaining to the present suit which were with him to the H.R.
department. Mr. Kumbhar which found very much relevant for the full
and final adjudication of the present suit.
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4. It further contended that the correspondences and
documents which are now found were not known to the officers of the
defendant at the time of filling of the written statement dated
25.9.2014 however, at the time of providing information to the
advocate for preparing crossexamination of the plaintiff, the offenders
searched for documents and records handed over by the then officers
and therefore the defendant intend sought the amendment which is
merely explanatory in nature and is in the nature of giving details and
the averments in respect of the same as already incorporated in the
written statement filed by this defendant. With this the defendant
prayed for amendment in written statement as per schedule.
5. Plaintiff filed say objected the chamber summons.
6. Plaintiff's contention is that Chamber Summons taken out by the
defendant is malafide and it amounts to abuse process of law. It further
contended that amendments sought by the defendant are not pertaining
to subsequent facts. The defendant is cooking the false case. The
amendment sought is at a complete variance with the case pleaded in
the written statement and therefore cannot be allowed. It further
contended that amendment sought by the defendant is allowed at
belated stage, it would cause serious prejudice to the plaintiff. The
plaintiff is under crossexamination. It further contended that defence
taken out by the defendant in schedule in para (v) of Schedule of
amendment, is by way of afterthought. As no point of time, the
defendant predecessor i.e. Sangli Bank, has taken such defence. Sangli
Bank never wrote a letter to plaintiff communicating such defence .
With this plaintiff prayed for dismissal of the Chamber Summons with
costs .
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7. Heard the advocate for both the parties.
8. Following point arise for my determination and
consideration and I have recorded my finding thereon for the reasons as
stated below:
POINTS FINDING
1 Whether proposed amendment can be
allowed? Partly affirmative.
2 What Order ? As per final order.
R E A S O N S
9. The defendants advocate submitted that to allow
amendment is woid and can be exercised at any stage of the
proceeding. He relied upon 2000(4 Maharashtra Law Journal ) Page
203 (209) 10 S.C. Case page 84. He further submitted that the
defendant can take any defence which are available to him and there is
no bar to the defendant to amend the written statement. He further
submitted that the defendant only intend to amend the para 2A by
giving details of the irregularities or act committed by plaintiff. He also
submitted that in original written statement the defendant has
mentioned work of plaintiff is suspicious about involvement of plaintiff
in commission of fraud scams with intention to seek certain monetary
kinds and causing monetary loss to the Bank. The defendant also
mentioned in written statement inquiry initiated against the present
plaintiff and his services are terminated and informed that plaintiff
designation letter was never accepted by the defendant.
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10. The plaintiffs advocate submitted that the defendant gave
written statement in 2014 then why the defendant has not taken all the
defences in written statement. He further submitted that merely to
prolong the suit defendant has taken this chamber Summons for
amendment and so it be rejected and if court allowed the amendment
cost be given to the plaintiff.
11. I have gone through the pleading and written statement,
and proposed amendment. The proposed amendment is about details a
list of illegality committed by plaintiff which come to know to the
defendant after retirement of Kumbhar and handing over documents to
HR Department therefore I find the proposed amendment is not
allowed, it will cause injustice to the defendant. I also find already the
defendant has taken defence about the disciplinary inquiry and action
taken against the defendant. Therefore, I find proposed amendment is
to be allowed. The defendant wants to give explanation why the
plaintiff is not entitled for terminal dues which is adjusted against the
dues therefore, I find proposed amendment is to be allowed however, I
find suit of 1994 and it is part heard. Some costs is to be saddled on
defendant which will compensate to plaintiff. Therefore, I find
defendant is to be allowed to amend the written statement on cost of
Rs.5000/ to the plaintiff. With this , Chamber Summons is allowed. I
prayed to pass the following order:
O R D E R
1. Chamber Summons No.789 of 2018 is allowed.
2. The Defendant is to carry out the amendment as per the schedule
by paying costs of Rs.5000/ to the plaintiff on or before next
date.
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3. Amendment should carry out within eight days.
4. Chamber Summons No.789 of 2018 stands disposed of
accordingly.
Sd/
( KALPANA S. HORE )
Judge,
Dated : 29/10/2018 City Civil Court, Gr. MUMBAI
Dictated on : 29/10/2018
Transcribed on : 12/11/2018
Signed on : 13/11/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
16.11.2018 4.00 p.m. VARSHA U. PAWAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
29.10.2018
JUDGEMENT /ORDER signed by
P.O. on
13.11.2018
JUDGEMENT /ORDER uploaded
on
16.11.2018
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