Final Order 2

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1757 OF 2019
IN
L.C.SUIT NO.2583 OF 2013
Shri.Vinay Gopinath Singh ....Plaintiff
V/s
Shri.Birendra Bahadur Singh ....Defendants
APPEARANCE:-
Advocate Bipin Pathak for plaintiff.
Advocate Brijesh for defendant.
CORAM : H. H. AD-HOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO.32)
DATE : 06th March, 2020
ORDER
Plaintiff has taken out Chamber Summons on the ground that
the plaintiff has filed suit against defendant to recover sum of
Rs,3,72,000/- being the amount due and payable by the defendant.
It is further submitted that in the suit due to
oversight/typographical mistake the amount in the plaint is wrongly
typographically typed Rs.2,72,000- instead of Rs.3,72,000/-. It is
further submitted that he is one of the partner of M/s.Kishan
Enterprises and joint holder of bank account in the name of
M/s.Kishan Enterprises. The said cheque of Rs.3,72,000/- has been
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issued in the joint holder capacity of the account of firm. It is
further submitted that the plaintiff be permitted to carry out
amendment in the plaint. If amendment is not allowed to be
carried out irreparable loss would be caused to the plaintiff which
cannot be compensated in terms of money. Lastly, it is prayed
that Chamber Summons taken out by plaintiff be made absolute.
2. Defendant resisted Chamber Summons by filing affidavit in
reply. It is contended by the defendant that the plaintiff have filed
the Chamber Summons which seeks to the amend the basic
structure of plaint and the same is not bonafide. It is contended by
the defendant that all the amendments sought by the plaintiff are
the facts which were known to the plaintiff the time of filing the
suit and no satisfactory explanation has been furnished for not
introducing those pleadings at the initial stage. Therefore, the
amendment should not be allowed at the very basic structure of
the plaint would change and so also the amendment sought is not
bonafide in nature. Lastly, it is submitted by the defendant that
plaintiff has not come with clean hands and therefore, the
Chamber Summons may kindly be dismissed with costs.
3. I have heard advocate for plaintiff Bipin Pathak and advocate
for defendant Brijesh.
4. It is submitted by the advocate for plaintiff that there is
typographical error in the plaint however, because of oversight
wrong figure written in the plaint however, in the notice issued by
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plaintiff to the defendant the figure was written correctly. It is
submitted by the counsel for plaintiff if the amendment is be
allowed then the nature of suit will not be changed and no
prejudice would be caused to the defendant.
5. Advocate for defendant raised objection to the contention of
Notice of Motion and submitted that this fact which is introduced
by the plaintiff by way of proposed amendment is already
knowledge of plaintiff however, plaintiff failed to take care of this
fact till today. The suit is proceeded till filing of evidence and
under such circumstances, amendment should not be granted in
favour of plaintiff.
6. After hearing both the side I drew my attention towards
record admittedly issues are framed by my Ld.Predecessor vide
Exh-7 on 2/2/2019. However, plaintiff has yet to file evidence on
record. Plaintiff raised ground in the Chamber Summons that
typographically the amount was being wrongly mentioned and
typed Rs.2,72,000/- instead of Rs.3,72,000/- but it is submitted
that the correct figure of amount was already convey to defendant
by way of notice and therefore, I have drew my attention towards
notice which was issued by plaintiff to the defendant
dtd.16/2/2013. As per the notice dated 16/2/2013 the plaintiff
rightly convey due amount of Rs.3,72,000/- to the defendant. The
notice was not replied by the defendant. As per the notice dated
16/2/2013 the defendant rightly figure out the amount of
Rs.3,72,000/- is due against defendant then naturally it was upon
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plaintiff to mention right figure in the plaint. However, possibility
cannot be ruled out the plaintiff has wrongly mentioned the figure
of Rs.2,72,000/- instead of amount of Rs.3,72,000/-. Therefore,
the proposed amendment is formal in nature and for correction of
wrong figure mentioned by plaintiff in the plaintiff and if said
proposed amendment be allowed then no prejudice would be
caused to the case of defendant. Hence, I pass following order.
ORDER
1. Chamber Summons No.1757 of 2019 is made absolute in
terms of prayer clause (a).
2. Plaintiff is permitted to carry out amendment as per schedule
within 14 days.
Date:- 06/03/2020 (Milind A.Bhosale)
Ad-Hoc Judge
City Civil & Sessions Court,
Gr.Bombay
Direct Dictated on :- 06/03/2020
H.H.J.Signed on :- 06/03/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/03/2020 at 4.35 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R.NO.32)
Date of Pronouncement of JUDGMENT/
ORDER 06/03/2020
JUDGMENT/ORDER signed by P.O. on 06/03/2020
JUDGMENT/ORDER uploaded on 06/03/2020
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