Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s no.1765/2019 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1765 OF 2019
CNR NO.MHCCO1100162019
IN
COMMERCIAL SUIT NO.39 OF 2019
Jayesh Dharamdas Jhaveri ..Plaintiff
Vs
Kantilal Kalyanji Gogri(HUF) and ors ..Defendants
Adv. Shriram S.Redji for plaintiff
Adv.Niranjan Lapashiya a/w Adv. Ruby Warkhat for defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 23/11/2019
ORAL ORDER
1. This chamber summons is tendered by the plaintiff
interalia for seeking amendment of the plaint.
2. Heard.
3. Ld. Counsel for the plaintiff submitted that initially
the plaintiff has filed suit u/s. XXXVII of the Code of
Civil Procedure and it was informed by the office that
for recovery of amount of Rs.3 lacs, the plaintiff has
to go for compulsory mediation and therefore the
matter is required to be referred for pretrial
Mediation. The mediation department issued notices
to defendants. Defendant no.2 attended the
mediation department and refused to refer the
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Ch/s no.1765/2019 2
matter for settlement. Therefore, mediation
department gave such report. The plaintiff was
informed that suit shall be filed under Commercial
cause. Thereafter the suit was numbered as
commercial suit. As per the Commercial Courts Act,
the plaintiff was required to make suitable
amendments to the plaint as well as add the
documents and verification as provided u/o. IV Rule
15A and also Order XI Rule 3 of Code of Civil
Procedure which is amended provisions. The
contention of the plaintiff is that present suit is based
upon the confirmation of accounts executed by
defendant no.1 in his capacity of Karta of HUF, there
was no further documents required for prosecuting
summary suit. The amendment does not change the
nature of the suit and is not prejudicial to the interest
of the defendants.
4. The defendants opposed the chamber summons. Ld.
Counsel for the defendants submitted that proposed
amendment cannot take away rights accrued in
favour of the defendants. There is no case made out
for the amendments. The plaintiff has suppressed the
material facts. The plaintiff cannot add avernments
in the plaint after suit has reached to the trial stage.
The plaintiff having chosen to produce the
documents which are annexed to the plaint. After
defence put forth by the defendant, plaint cannot be
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Ch/s no.1765/2019 3
amended. Hence, prayed for rejection of the
Chamber Summons.
5. I have considered the rival submissions of the parties.
From the record it reveals that plaintiff has initially
filed Summary suit which was registered as
Commercial Suit. The procedure for the summary
suit is altogether different. In view of Commercial
Courts Act, the proposed amendment has to be
carried so as to complete the legal requirements. The
Ld. Counsel for the defendants submitted that there
are basic criteria for amendment of the plaint. He
placed reliance upon the judgment of Hon'ble Apex
Court in the case of Revajeetu Builders and
Developers V/s Narayanswamy & Sons and ors,
2009(6) All MR 986.
6. I have considered the guidelines given by the Hon'ble
Apex Court. There is nothing to point out that
amendment is malafide and it is prejudicial to the
interest of the defendants. The amendment does not
change the basic nature of the suit and therefore it is
apparent that guidelines set out in the above
judgment are strictly adhered. The objection of the
defendant that after the defence put up by the
defendant, the plaint cannot be amended is not
tenable and against the settled position of law. The
trial has not commenced. At this stage, the Court
can't dwell upon the merits of amendment. The
plaintiff wish to coup up the pleadings as regard the
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Ch/s no.1765/2019 4
amended provision with respect to the Commercial
Courts Act. The plaintiff has filed initially suit as
Summary suit and therefore it cannot be said that the
plaintiff was deliberate and negligent. Considering
the same, the Chamber Summons needs
consideration. Hence, it is expedient to pass
following order:
ORDER
1. Chamber Summons No. 1765/2019 is made
absolute in terms of prayer clause (a).
2. Plaintiff to carry out necessary amendment
within a period of 14 days from today.
3. Chamber Summons is disposed of accordingly.
23/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 23/11/2019
Transcribed on: 25/11/2019
Signed on : 29/11/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
29/11/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
23/11/2019
Judgment and order signed by P.O. 29/11/2019
Judgment/order uploaded on 29/11/2019
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