Interim Order 3

Order Details: Chamber summons
Pdf Text: Ch/s No. 1081/21 in Comm. Suit No. 79/19. 1 Order.
MHCC010068502021
Presented on : 16-09-2021
Registered on : 16-09-2021
Decided on : 08-11-2021
Duration : 0 years, 1 months, 22 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1081 OF 2021
IN
COMMERCIAL SUIT NO. 79 OF 2019
Executive Trading Company Private Limited ...Plaintiff
Versus
Maruti Steel Fab ...Defendant
And
Mr. Deepak C. Bathija and Another ...Respondents
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 8th NOVEMBER, 2021.
Shri Arvind Giriraj, Advocate for the plaintiff.
Shri S.Bhojwani, Advocate for the defendant.
ORDER
1. This chamber summons is moved by the plaintiff for
amendment in the plaint under Order VI Rule 17 of the Civil Procedure
Code (For short, ‘the CPC’). Perused chamber summons with
supporting affidavit as well as affidavit in reply filed by the defendant.
Heard learned counsel Shri Arvind Giriraj for the plaintiff and learned
counsel Shri S.Bhojwani for the defendant.
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Ch/s No. 1081/21 in Comm. Suit No. 79/19. 2 Order.
2. Learned counsel Shri Arvind Giriraj for the plaintiff
submitted that this chamber summons is filed for limited purpose of
adding defendants with their correct details in the suit. He further
submitted that he got correct details of the defendants subsequently as
per order on Exh.8 and he wants to bring this fact on record. He
further submitted that earlier Chamber Summons No. 488/2021 is
withdrawn because the defendants disclosed names of the partnership
firm and its partners subsequently. According to him, delay is caused
due to Covid19 pandemic and he prayed that chamber summons may
be allowed.
3. Learned counsel Shri S.Bhojwani for the defendant
submitted that the plaintiff had moved one chamber summons for
striking out details of Order XXXVII of the CPC in the title clause of the
plaint. The plaintiff filed the second Chamber Summons No. 488/2021
for amendment of the plaint with similar prayers and he withdrew the
same. Now, this is the third chamber summons filed by the plaintiff. He
further submitted that issues are framed at Exh.7 on 21/01/2021 and
lockdown is declared on 26/03/2020. According to him, the plaintiff
had not moved the application diligently before commencement of the
trial. He relied upon observations of Hon'ble Supreme Court in the case
of Vidyabai And Others V/s. Padmalatha And Another (Civil Appeal
No. 7251/2008 decided on 12/12/2008) in para 13 and submitted
that the trial begins when issues are framed and the case is set down for
recording of evidence. According to him, amendment cannot be
allowed after commencement of trial in view of proviso to Order VI
Rule 17 of the CPC. Covid19 pandemic is not a good ground. The
plaintiff should have taken the steps in January 2021. He prayed for
dismissal of Chamber Summons.
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Ch/s No. 1081/21 in Comm. Suit No. 79/19. 3 Order.
4. On perusal of the record, it appears that issues are framed
on 21/01/2021. It is pertinent to note that the defendant had filed
affidavit in support of written statement (Exh.5) and list of documents
(Exh.6) on 21/01/2021. Issues (Exh.7) came to be framed on the same
date. In the month of January 2021, restrictions on personal
appearance of lawyers and litigants were still in force. Rules and
regulations regarding Covid19 pandemic were being frequently
changed and all were facing volatile situation. In such circumstances, it
would be inappropriate to consider the aspect of framing of issues for
denying the opportunity of amending the plaint for clarifying basic fact
relating to the legal status of the defendant and adding one more
defendant who is the second partner responsible for the business of
partnership firm. Earlier developments in the matter reveals that the
plaintiff came to know from the defendant himself that the defendant is
a partnership firm and it is represented by two partners as described in
schedule of the proposed amendment. The plaintiff has to amend the
title clause of the plaint in order to bring on record the facts which
came to his knowledge after filing of the suit and also for contesting the
suit against proper parties. In such circumstances, bringing the actual
position regarding legal status of the defendant and addition of its
partners as parties to the suit would not cause prejudice to either side.
Hence, I pass the following order :
ORDER
1. Chamber Summons No. 1081/2021 is made absolute in
terms of prayer clause (a).
2. The plaintiff is directed to carry out amendment in the
plaint on or before the next date of hearing.
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Ch/s No. 1081/21 in Comm. Suit No. 79/19. 4 Order.
3. Proceedings of Ch/s No. 1081/2021 are closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 08/11/2021. Mumbai.
1. Dictated online on : 08/11/2021.
2. Signed on : 09/11/2021.
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
09/11/2021. 5.35 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 08/11/2021.
Judgment/Order signed by P.O. on 09/11/2021.
Judgment/Order uploaded on 09/11/2021.
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