Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1021 OF 2018
IN
SUIT NO.8106 OF 1994
Alexander P.M. & ors. ...Plaintiffs.
V/s.
City Bank & ors. ...Defendants.
Appearances:
Ld. Adv.Mr.A.L. Gore for plaintiffs.
Ld. Adv.Mr.Ashutosh Marathi for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 12th November,2018
ORDER
By way of this chamber summons plaintiff prayed for permitting
them to carry out amendment as per annexureA to the chamber
summons.
2. In supporting affidavit of P.J. Chandy, Constituted Attorney for
plaintiff No.1, submitted that, they have filed suit before Hon.High
Court in the year 1994 for declaration that sale of securities (shares and
debentures) by defendant bank as described therein is bad in law, null
and void and also prayed for returning and delivering the possession of
the said security from defendant bank and also for direction to
defendant bank to pay Rs.50 lacs which was enhanced from original
claim amount of Rs.6,70,500/ as per order dt.15.06.2012. When the
matter was for evidence, plaintiff No.1 filed their documents along with
MHCC01-007370-2018
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their chiefinaffidavit. However, defendant No.1 as the natural
custodian for possessing the original documents, hence, defendant No.1
called to produce the original, but defendant No.1 was expressing
inability to produce the same and therefore, permission to lead
secondary evidence was granted. Defendant No.12 had filed an
application for amendment in the plaint for changing the name from
“M/s Lipton India Ltd.” to “M/s. Hindustan Uniliver Ltd.”. Though,
defendant No.12 is not contesting party, the prayer was allowed in the
interest of justice. But relief is only against defendant NO.1 and
defendant No.12 is not affected since relief is sought against them.
Therefore, name of defendant NO.12 is required to be deleted. They
also sought that there is necessary amendment in the plaint in that
respect. Considering the suit which was pending since 1994 and came
to be transferred to City Civil Court due to valuation of the suit amount
in view of prevailing rate and therefore, it is necessary as per valuation
of shares and securities it has been now comes to Rs.1,02,00,000/.
Therefore, amendment in the relevant paras as well as prayer clause is
necessary. Therefore, plaintiff prayed that, chamber summons be made
absolute, else they will suffer irreparable loss. On the other hand
defendants will not suffer loss or prejudice. Hence, they prayed that,
chamber summons be made absolute.
3. Chamber summons was served upon defendants. Out of which
only defendant No.1 filed their reply and objected the chamber
summons contending that it deserves to be dismissed with costs. The
prayer in the chamber summons itself is not proper nor such claim can
be enhanced at such stage. The remedy in damages is measured by the
loss actually sustained i.e by way of deduction from the amount due of
a reasonable value of the pledged property at the date of the suit. As
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such, plaintiff cannot use the instant as a multiplier and keep enhancing
the claim towards damages after every two years without providing any
facts, circumstances to demonstrate that enhancement in the damages
claim is necessary. Therefore, they submitted that, when the trial is
already commenced in the above suit as plaintiff filed their affidavit in
evidence, question of enhancing the claim as per whims of plaintiff does
not substance any merit. Therefore, the proposed amendment is
without diligence, without reason only to harass the defendant No.1
and therefore, it is necessary to dismiss the chamber summons with
heavy costs.
4. Heard learned Advocate for plaintiff and learned Advocate for
defendant No.1. Perused the submissions.
5. Admittedly, initially suit came to be tendered before the
Hon.Bombay High Court and due to enhancement of pecuniary
jurisdiction the present suit came to be transferred to City Civil Court,
Mumbai. The reliefs sought is in respect of declaration about sale of
security by defendant No.1 and damages of Rs.50,00,000/, which is
enhanced from original claim of Rs.6,70,500/ as per order
dt.15.06.2012. The proposed amendment sought in respect of
enhancement of the claim again in view of the valuation of the said
security has been enhanced and therefore, the claim of damages is
sought to be enhanced to Rs.1,02,00,000/. No doubt after tendering
the matter before Hon.Bombay High Court the plaintiff has also
tendered their chiefinaffidavit along with compilation of documents
and meanwhile suit came to be transferred to this Court. Defendant
Nos.2 to 9 are not appearing before the Court. Defendant No.12 is also
a formal party in this suit, which is now merged into Hindustan Uniliver
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Ltd. Therefore, that amendment is necessary to be carried out in the
plaint so as to proper adjudication of the matter and for passing
effectual decree by resolving the disputes between parties on merits.
The amendment in respect of damages to be enhanced is also sought. It
is but natural that as soon as valuation of security changes from time to
time and the valuation, if required to be changed in that respect, it is
the right of plaintiff to amend their claim accordingly. If it is not
allowed irreparable loss will be caused to plaintiff if proper valuation of
the claim is not done. Defendants are having equal opportunity to
rebut the claim, even after enhancement of the claim. Therefore,
question of causing prejudice to defendant does not arise.
6. Due to diligence appears from the face of record, as soon as
plaintiff got aware about valuation of the securities he has moved this
chamber summons for enhancement of the claim by way of
amendment. Plaintiff is a dominuslitis. Therefore, he is entitled to
raise the claim. For this he is entitled or not, it is the question of fact.
But plaintiff's right to enhance the claim cannot be curtailed due to
mere technicalities. In such circumstances, the chamber summons, if
allowed it will helpful to determine the real question of controversies
between the parties including the question of damages also. The
question of bar of commencement of trial does not arise unless and
until claim remains to be rebutted on the part of defendant. In such
circumstances, I have no hesitation to allow the chamber summons as
per annexureA for amendment in the plaint and therefore, chamber
summons needs to be allowed. The question of delay will not arise nor
question of limitation will be cropped up due to enhancement of claim
since 1994. In such circumstances, it will be proper to direct the parties
to bear their costs and hence, I proceed to pass the following order :
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O R D E R
1. Chamber Summons No.1021 of 2018 is made absolute as
per annexureA attached to the chamber summons.
2. Plaintiff to carry out amendment within 14 days in the
plaint as per annexureA attached to the chamber
summons and filed amended copy of plaint on record as
well as supply to the other side; and be filed service
affidavit in that respect.
3. Plaintiff to pay necessary court fee after amendment as per
the valuation of the claim as per prevailing rate at the time
of order as per directions of the Registrar of this Court.
4. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 12/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 12.11.2018
Transcribed on : 13.11.2018
Signed on : 13.11.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.11.2018 at 5.32 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 12.11.2018
Judgment/order signed by P.O. on 13.11.2018
Judgment/order uploaded on 13.11.2018
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