Order 7

Order Details: Chamber summons
Pdf Text: Ch/s No.101570 / 2024
Ratanbai – Sunshine Order (Exh.42) 1 of 5
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010136722024
Chamber Summons Filed : 10.07.2024
Arguments Over : 06.08.2024
Decided on : 17.08.2024
Duration : 01 M, 08 Days
Exhibit No.42
Commercial Suit No. 100065 / 2019
Chamber Summons No. 101570 / 2024
Plaintiffs : Ratanbai Jethalal Savla (Deleted)
1a Mahendra Jethalal Savla
1b Vinod Juthalal Savla
1c Rashmi Govind Visaria
VERSUS
Defendant : Sunshine Tracon Pvt. Ltd.
Appearances
Plaintiffs : Adv. Ms. Preeti Gada
Defendant : Adv. Shri Maulik Tanna
Chamber Summons for Amendment
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ORDER
(Pronounced on this 17th Day of August 2024)
Through Chamber Summons, plaintiffs are seeking
permission to carry out amendment in the Plaint, by replacing
word Bill of Exchange with Promissory Note.
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Factual Matrix of the case :
2) Ratanbai Jethalal Savla expired on 24.08.2023. Plaintiff
No. 1 (a) Mahendra Jethalal Savla, plaintiff No. 2 Vinod Jethalal
Savla and plaintiff No. 3 Rashmi Govind Visaria Mumbai,
Maharashtra are her legal heirs (hereinafter,
plaintiffs).
Sunshine Tracon Pvt. Ltd., Mumbai, Maharashtra
(hereinafter,
defendant) is Private Limited Company.
3) On oral request of defendant, plaintiffs, in the year
2008, had advanced loan of .	₹ 60,50,000/- to defendant. Said
loan was renewed on 01.04.2016. Accordingly, on that date,
defendant executed Bill of Exchange for .	₹ 60,50,000/-. It was
signed by Atul Bharani in the capacity of Director of defendant.
4) As defendant defaulted the repayment, plaintiffs on
09.07.2019, filed present Commercial Suit No. 100065 / 2019 for
recovery of .	₹ 87,17,500/- with interest @ 18 % per annum.
5) Defendant filed Written Statement (Exh.4, Dt.
02.11.2019). On 22.01.2020, my Learned Predecessor framed
Issues at Exh.6. Plaintiffs filed evidence affidavit on 04.03.2020
(Exh.7). He was cross examined on 09.03.2021.
6) Perusal shows that, on 07.08.2021, plaintiffs filed
Notice of Motion No. 1728 / 2021, seeking conversion of the Suit
from Commercial Suit to Commercial Summary Suit. Defendant
opposed the Notice of Motion. On 06.09.2021, my Learned
Predecessor rejected said Notice of Motion.
7) Thereafter, Suit got adjourned for evidence of
defendant. However, on 28.03.2022, plaintiffs filed evidence
affidavit of PW2 Mahendra Savla at Exh. 21 and Exh.22. He was
cross examined on 12.04.2023.
Plaintiffs filed evidence closure pursis at Exh. 33
(13.06.2023).
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8) Defendant filed evidence-affidavit of DW1 Nilesh
Bharani (Exh.35). He was cross examined on 30.01.2024 and
13.06.2024. Suit as such is not pending for
defense evidence.
Chamber Summons :
9) It is at this stage, plaintiffs on 10.07.2024 preferred
present Chamber Summon No. 1570 / 2024 (Exh.42) for
changing the nomenclature of
document from
Bill of Exchange to
Promissory Note.
Defendant (reply, Exh.44) opposed Chamber Summons.
Points for determination :
10) Perused Record. Heard Adv. Ms. Preeti Gada for
plaintiffs and Adv. Shri Maulik Tanna for defendant. Points for
determination, findings and reasons are as follows :
Points
Findings
1. Are plaintiffs entitled for
amendment, as prayed?................. In the Affirmative
2. What Order? ……………............. As per final order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
11) Document Dt. 01.04.2016 is filed by plaintiffs on record
and during examination of plaintiff’s witness, it has come on
record as Exh.11.
Minute perusal of Document (Exh. 11) shows that, it
do
not have any heading or title.
12) Document do not pertains to immovable property, so
that, its specific nomenclature as, Lease Deed, Mortgage,
Agreement to Sale, Sale Deed, Exchange-deed, will have
different entitlements, rights and obligations, for executing party.
In present case,
Document pertains to simplicitor money
claim. This being recovery Suit, so only question which requires
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adjudication is, on strength of
document filed by plaintiffs,
whether plaintiff is entitled for recovery.
So, irrespective of whatever the Document is called, it
will not affect the rights and duties of the parties.
What is nature of document and how it affects the rights
of the parties, are questions, which can be answered on the basis
of cross-examinations of all witnesses of plaintiffs and defendant.
As document is without any title, it will matter least as to whether
it is to be called as Promissory Note or Bill of Exchange.
13) Plaintiffs being master of his Suit, can be permitted to
carry out amendment regarding change of nomenclature of said
document.
If said amendment is allowed, then defendant will be at
liberty to carry out consequential amendment.
14) However, it is pertinent to note that, the document is Dt.
01.04.2016. Suit is filed on 09.07.2019. Thereafter, plaintiffs
examined two witnesses. Thereafter, defendant also entered into
the witness box.
It is thereafter on
10.07.2024 i.e. after delay of 5 years
from filing of the Suit, plaintiffs are seeking aforesaid
amendment. Most importantly, document was in possession of
plaintiffs since 2016.
Still, only explanation given by the plaintiffs while
seeking change of nomenclature is that, there is typographical
error in Para No. 2 of the Plaint. There are no plausible
explanations given by the plaintiffs for said delay of about 5
years. Therefore, while allowing the application, plaintiffs needs
to be saddled with costs. In given facts and circumstances, cost of
.	₹ 15,000/- would be just, legal and proper. Hence, following
Order is passed :
ORDER
1. Chamber Summons No. 101570 / 2024 is allowed
subject to Cost of . 15,000/- ( . Fifteen Thousand
₹
	₹
Only).
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Out of said cost, plaintiffs shall pay .	₹
10,000/- ( .	₹
Ten Thousand Only) to defendant.
Out of said cost, plaintiffs shall pay .	₹
5,000/- ( .	₹
Five Thousand Only) to DLSA, Mumbai.
2. By next date, plaintiffs shall pay the cost, shall carry out
necessary amendment, shall file copy of amended Plaint
and shall supply copy of amended Plaint to defendant.
3. If plaintiffs fails to comply the Order by next date, then
the Suit shall proceed further.
4. Proceeding of Chamber Summons No. 101570 of 2024
is closed.
5. Order pronounced in open Court.
6. Plaintiffs be informed about their right to challenge this
Order and period of limitation for the same.
7. Record of Chamber Summons shall be part of
Commercial Suit No. 100065 / 2019.
Mumbai
Dated : 17.08.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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