Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S 1368/19(Suit 268/13)
MHCC010076082019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1368/2019
(CNR NO.MHCC010076082019)
IN
S.C. SUIT NO.268/2013
Richa Appasaheb Jinagouda ..Plaintiff
V/s.
M/s. Somesh Forge Pvt. Ltd. ..Defendants
Appearances :
Adv. S. S. Jinsiwale for plaintiff.
Adv. Girish Kedia for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
CR No. : 03
Date : 14.03.2022.
ORDER
1. Plaintiff tendered instant chamber summons for
amendment of the plaint as per schedule.
2. It is contended by the plaintiff that, he has filed present suit
for recovery of money against defendant. On 16.7.2015, he has
tendered evidence in lieu of Examinationinchief along with documents
as per list. It is submitted that, after perusing the bank statement for
the purpose of evidence, it is noticed by him that, there is some mistake
in calculating the amount due. He has noticed that, wrongly interest is
calculated in the suit by charging cumulative interest instead of simple
interest. In fact, he has paid court fees on the claim amount on the basis
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of cumulative interest. Therefore, the plaintiff prayed for allowing the
amendment to charge simple interest from the date of amount due.
3. It is submitted that, the amount which is claimed consists
of interest @ 18% p.a. There is difference in the amount of interest
calculation. The proposed amendments do not change the cause of
action and no prejudice will be caused to the defendant. Hence, he
prayed to allow the present chamber summons.
4. Chamber summons is opposed by defendant by filing reply
on the ground that, the chamber summons is misconceived and made
with malafide and dishonest intention beyond purview of Order 6 Rule
17 of CPC. Therefore, same is liable to be dismissed with costs.
5. It is contended that, admittedly the plaintiff has filed suit
on 21.12.2013. Issues were framed on 11.6.2013 and additional issues
were framed on 20.11.2013. The plaintiff on 16.7.2016 tendered
Examinationinchief and on 27.7.2016, parties submitted admission
and denial of the documents and documents were exhibited on
26.10.2016. Therefore, in view of Order 6 Rule 17 of CPC, the trial has
commenced. The proposed amendment on the basis of documents
which were within the knowledge and in possession of the plaintiff, the
same is not permissible as trial has been commenced and thus, the
chamber summons needs to be dismissed with costs.
6. It is further submitted that, the plaintiff was fully aware
about the defence raised by the defendant way back in the year 2013.
The court has framed issues on the basis of pleadings of the parties. It is
contended that, the plaintiff by way of present chamber summons is not
only intends to change the cause of action but also intends to bring the
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suit within limitation, which is not permissible in law as amendment is
prima facie barred by the law of limitation. Hence, the defendant
prayed for dismissal of the chamber summons.
7. It is further submitted that, on bare perusal of the affidavit
in support of the chamber summons, the plaintiff was in possession of
the bank statement at the time of filing of Examinationinchief,
therefore now falsely and dishonestly contending that there is some
mistake in calculating the amount due, it is nothing but an excuse to
overcome the defence of limitation. Therefore, the defendant prayed
for dismissal of the chamber summons.
8. The plaintiff refuted the reply of the defendant by filing
rejoinder and denied the adverse allegations made by the defendant.
9. Heard both sides. Perused chamber summons, reply,
rejoinder and pleadings in the plaint. The plaintiff filed instant suit for
recovery of amount of Rs.43,91,893/together with interest @ 18% p.a.
from the date of filing of the suit till its realization.
10. It is the contention of the plaintiff that, he has supplied
goods to the defendant on the terms and conditions agreed between the
parties. The defendant used to place orders on regular basis, therefore
on the request of the defendant running account have been maintained
by him. The plaintiff sold and supplied goods to the defendant as per
invoices which has been accepted by the defendant without any
objection. The defendant paid some payment of the goods delivered
and the plaintiff informed the defendant balance due, which was
confirmed by the defendant.
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11. It is the contention of the plaintiff that, it was agreed
between the parties that the plaintiff would charge interest @ 1.5% per
month on the balance due.
12. Thus, it appears from the pleadings that, the plaintiff's case
is based on the amount due under running account. The defendant
resisted the suit by filing written statement and took a specific defence
the suit claim is barred by limitation.
13. The plaintiff claimed interest on the amount due which is
recorded in the account maintained by the plaintiff. The plaintiff by way
of proposed amendment wanted to incorporate the basis of charging of
interest. It is his case that, wrongly he has charged cumulated interest
instead of simple interest.
14. Ld. Advocate for the plaintiff vehemently argued that,
although the trial has been commenced but as the proposed amendment
do not change the nature of the suit same is essential to decide the
dispute between the parties and thus proposed amendment can be
allowed.
15. In support of his submission, he has relied on the judgment
of the Hon'ble Apex Court in case of Abdul Rehman and another V/s.
Mohd. Ruldu and others ((2012) 11 SCC 341), wherein the Hon'ble
Apex Court held that, if amendment application is made after
commencement of trial, court has to arrive at a conclusion that in spite of
due diligent, plaintiff could not have raised matter before commencement
of trial. The Hon'ble Apex Court further observed that, Order 6 Rule 17
of CPC to some extent curtails absolute discretion to allow amendment at
any stage. The object behind the provision is that the courts should try
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merits of case that comes before them and should, consequently, allow all
amendments that may be necessary for determining real question in
controversy between the parties, provided it does not cause injustice or
prejudice to the other side. The main purpose of allowing amendment is to
minimize litigation and plea that relief sought by way of amendment was
barred by time is to be considered in light of facts and circumstances of
each case. The Hon'ble Apex Court in the aforesaid case allowed the
amendment application because the plaintiff by way of proposed
amendment making clear and explicit what was already implicit in
plaint.
16. Ld. Advocate for the plaintiff further placed reliance on the
judgment of the Hon'ble Apex Court in the case of Sajjan Kumar V/s.
Ram Kishan ((2005) 13 SCC 89), in which proposed amendment was
with respect to description of suit property in plaint and amendment
was sought at the final stage of the suit. The Hon'ble Apex Court held
that, the proposed amendment is necessary to bring real question in
controversy between the parties to the fore. Refusal to permit amendment
likely to create complications at the stage of execution in the event of
success of plaintiff in the suit. The Hon'ble Apex Court further observed
that, plaintiff ought to have been diligent in promptly seeking amendment
at an early stage of the suit, more so when error in question had been
pointed out in W.S, still due to above reasons, amendment should have
been allowed subject to imposition of costs.
17. He further relied on the case of Chander Kanta Bansal
V/s. Rajinder Singh Anand ((2008) 5 SCC 117, wherein the Hon'ble
Apex Court held that, delayed amendment which appeared to be an
afterthought needs to be disallowed. The plaintiff in the aforesaid case has
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not satisfied the condition of due diligence, however, in deserving cases, the
court can allow delayed amendment by compensating the other side by
awarding costs.
18. At last, he relied on the case of T.V.P. Bhaskar Rao V/s.
Susheela HOmes and Properties pvt. Ltd. (2014 (2) Mh.L.J 691),
wherein plaintiff sought amendment based on the statement of account.
The Hon'ble Bombay High Court took a view that, proposed amendments
are necessary to put the record straight and clear which would enable the
court to determine the controversy involved in the suit correctly and
judiciously.
19. Per contra, Ld. Advocate for the defendants by relying on
the judgment of the Hon'ble Bombay High Court in the case of The
Liquidator V/s. M/s. Jeejaee Estate and others (Chamber Summons
No. 53 of 2018 in Suit No. 2577 of 2012), decided on 11.1.2019,
argued that, the Court cannot allow present chamber summons after
commencement of the trial and the trial commenced once plaintiff
tendered Examinationinchief.
20. I have perused the above material, the plaintiff in his suit,
more particularly Schedule of particulars of claims has not specified
basis of charging of interest. As per schedule of the proposed
amendment, the plaintiff maintained running account since year 2003
showing rate of interest at 1.5% per month. Now the plaintiff wanted to
reduce the aforesaid interest amount. The plaintiff has come up with a
case that, he maintained running account. Defendant took specific
defence that the proposed amendment is an effort of the plaintiff to
bring the suit within limitation.
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21. I find substance in the aforesaid contention, looking to the
provisions of Sec.59 to 61 of Contract Act with respect to appropriation
of payment. the Plaintiff wanted to take advantage of the appropriation
of payment by charging less interest. The plaintiff wanted to show
more principle amount which certainly would cause prejudice to the
defence taken by the defendant. Even otherwise also, the plaintiff has to
prove that it was agreed between the parties to charge interest @ 1.5 %
per month. Therefore, I am of the view that, even if present chamber
summons is rejected, no prejudice will cause to the plaintiff. Moreover,
the basis of charging interest was well within knowledge of the plaintiff
at the time of filing of the suit. Admittedly, the trial has commenced
and hence, in view of Order 6 Rule 17 of CPC, the plaintiff failed to
satisfy the test of 'due diligence'. Therefore, I am of the view that, there
is no substance in the chamber summons and same needs to be
dismissed with costs. Thus, I proceed to pass following order :
ORDER
1. Chamber Summons no. 1368 of 2019 is dismissed, with costs.
2. Chamber summons is disposed of accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated: 14.3.2022 Greater Bombay (CR 03)
Dictated on : 14.3.2022.
Typed on : 14.3.2022.
Draft Submitted on : 14.3.2022.
Signed on : 15.3.2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Date 15.3.2022, at 4.00 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 14.3.2020
JUDGMENT/ORDER signed by P.O. on 14.3.2020
JUDGMENT/ORDER uploaded on 15.3.2020
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