Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 82/22 in Comm. Suit No. 767/21. 1 Order.
MHCC010004382022
Presented on : 15-01-2022
Registered on : 15-01-2022
Decided on : 19-04-2022
Duration : 0 years, 3 months, 4 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 82 OF 2022
IN
COMMERCIAL SUIT NO. 767 OF 2021
Royal Bitumen Private Limited ...Applicant
IN THE MATTER BETWEEN
Royal Bitumen Private Limited ...Plaintiff
Versus
The General Manager and Others ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 19th APRIL, 2022.
Shri Vivek Phadke, Advocate for the plaintiff.
Shri K.B.Adyanthaya, Advocate for defendants no.1 to 4.
Smt. Vaishali Bhilare, Advocate for proposed defendant no.6.
ORDER
1. This chamber summons is taken out by the plaintiff for
carrying out amendment in the plaint under Order VI Rule 17 of the
CPC. Perused chamber summons, affidavit in reply filed by defendants
no.1 to 4 and affidavit in reply filed by proposed defendant no.6. Heard
learned counsel Shri Vivek Phadke for the plaintiff, learned counsel Shri
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Ch/s No. 82/22 in Comm. Suit No. 767/21. 2 Order.
K.B.Adyanthaya for defendants no.1 to 4 and learned counsel Smt.
Vaishali Bhilare for proposed defendant no.6.
2. The plaintiff had availed credit facilities from defendant
no.4 i.e. Abhyudaya Cooperative Bank Limited. As the plaintiff
committed default in payment of due amount, defendants no.1 to 4 had
taken physical possession of the stock, plant and machinery of the
plaintiff company. It is case of the plaintiff that the incident of theft
had occurred in the property/factory in possession of defendant no.5
during 10/06/2015 to 10/01/2017. Then, the plaintiff received
possession of the property/factory premises from the defendant on
06/01/2017. The plaintiff pointed out missing assets and sent
requisition to the defendants on 12/01/2017. On the basis of this cause
of action, the plaintiff filed suit for recovery of damages, business loss,
compensation etc. as claimed in prayer clause of the plaint.
3. Now, the plaintiff wants to add proposed defendant no.6 as
a party to the suit because defendant no.4 assigned its debts to
defendant no.6 vide Deed of Assignment. Defendant no.6 has stepped
into the shoes of defendant no.4. The plaintiff further wants to correct
name and address of defendant no.4 by replacing the words
“Abhyudaya Cooperative Bank Limited” with “Sai International
Security Private Limited”. He has also furnished details of changed
address of defendant no.4 and paras to be inserted after para 38 in the
plaint in schedule of amendment.
4. Defendant no.4 and proposed defendant no.6 have opposed
the chamber summons mainly on the ground that seizure of the
plaintiff's asset was done as per order of the District Collector passed on
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Ch/s No. 82/22 in Comm. Suit No. 767/21. 3 Order.
02/03/2015 and it was in physical custody of the proposed defendant
since 16/12/2016. The plaintiff approached the proposed defendant
for settlement on 08/12/2016. Proposal of settlement was accepted by
proposed defendant vide letter dated 30/12/2016. The plaintiff issued
letter dated 05/01/2017 as per which physical possession of the assets
was handed over to the plaintiff. The plaintiff had also executed
indemnity on 05/01/2017. It is contention of the defendants that the
plaintiff had knowledge regarding assignment of debts by defendant
no.4 to proposed defendant no.6. The plaintiff is seeking amendment
after point of nonjoinder of necessary party was raised by the
defendants in their written statement.
5. Material on record demonstrates that the plaintiff is trying
to change name of defendant no.4 completely. He has not explained
reasons for complete replacement of details regarding defendant no.4.
It is an attempt of deleting the party to the suit and adding a new party
to the suit. He made party to defendant no.4 even after having
knowledge regarding assignment of debts by defendant no.4 to
proposed defendant no.6.
6. The plaintiff had negotiations with defendant no.6 much
prior to filing of the suit. The plaintiff has not offered any justification
for not joining proposed defendant no.6 as a party to the suit at the
time of filing of the suit. If the aspect of alleged theft regarding assets
in possession of the defendants is considered, period of theft is shown
as 10/06/2015 to 10/01/2017. This is not the case of continuing cause
of action. Therefore, remedy against proposed defendant no.6 is
apparently barred by limitation. The plaintiff is not intending to bring
on record the facts which came to his knowledge subsequent to filing of
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Ch/s No. 82/22 in Comm. Suit No. 767/21. 4 Order.
the suit. The plaintiff is not justified in seeking proposed amendment in
the plaint. Hence, I pass the following order :
ORDER
1. Chamber Summons No. 82/2022 is dismissed.
2. Proceeding of Ch/s No. 82/2022 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 19/04/2022. Mumbai.
1. Dictated online on : 19/04/2022.
2. Signed on : 19/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/04/2022. 5.20 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 19/04/2022.
Judgment/Order signed by P.O. on 19/04/2022.
Judgment/Order uploaded on 19/04/2022.
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