Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch.S.1886-19 in Comm. Suit no.106-21
MHCC010106652019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
CHAMBER SUMMONS NO.1886 OF 2019
IN
COMMERCIAL SUIT NO.106 OF 2021
Cipla Ltd. ]
A company incorporated under the provisions ]
of the Companies Act, 1913 having its ]
registered office address at Cipla House, ]
Peninsula Business Park, Ganpatrao Kadam Marg, ]
Lower Parel, Mumbai400 013 ]...Plaintiff
Versus
1. Global Energy pvt. Ltd. ]
A company incorporated under the Companies ]
Act,1956 having its principal Place of business ]
at 1st floor, ShangriLa's Eros Corporate Plaza, ]
19, Ashoka Road, New Delhi 110 001 ]
2. Kotak Mahindra Bank Ltd.
A banking company incorporated under the ]
companies Act, 1956 having its branch office at]
2nd floor, Bakhtawar, 229 Nariman Point, ]
Mumbai and registered office at 27BKC, C 27, ]
G Block, Bandra Kurla Complex, Bandra East, ]
Mumbai400 051 ]...Defendants
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 20th September, 2021.
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2 Ch.S.1886-19 in Comm. Suit no.106-21
Appearance:
Ld. Adv. Kashish Mainkar i/b Wadia Gandhy and Co. for plaintiff.
Ld. Adv. Sumi Soman for defendant No.2.
ORDER
This chamber summons is taken out by the plaintiff under
Order 6, Rule 17 of the Code of Civil Procedure, 1908, for amendment
in the plaint.
Brief facts giving rise to the filing of this chamber summons are as
under:
2. Originally the suit is filed for declaration that first
defendant's purported invocation of the Bank Guarantee issued by the
defendant No.2 is malafide, fraudulent and untenable. The plaintiff had
also sought permanent injunction against the defendant No.2 from
releasing any amount to defendant No.1 in pursuance of first
defendant's purported invocation of Bank Guarantee. The Notice of
Motion No.1894/2018 was filed by the plaintiff, seeking interim relief to
stay the effect and operation of the purported invocation of the Bank
Guarantee by the defendant No.1 and to restrain the defendant No.2
from releasing any payments to defendant No.1. By an order dated
05.05.2018, this Court directed the defendant No.2 not to release any
payment against Bank Guarantee. When the copy of the said order was
forwarded by email to defendant No.2, it was informed to the plaintiff
by the defendant No.2 that it has already remitted the amount of Bank
Guarantee to defendant No.1. Therefore, defendant No.2 has already
released the payment in favour of defendant No.1. Due to these
subsequent events, the plaintiff is required to amend the plaint. The
plaintiff is also required to seek additional reliefs in view of change of
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3 Ch.S.1886-19 in Comm. Suit no.106-21
circumstances. Accordingly, this chamber summons is taken out by the
plaintiff for necessary amendment.
3. The defendant No.1 has not filed reply to the chamber
summons. The defendant No.2 by its endorsement on the affidavit of
chamber summons had submitted no objection to the chamber
summons.
4. Heard the learned Advocate Kashish Mainkar i/b Wadia
Gandhy and Co. for the plaintiff. No argument of defendant No.1. Heard
the learned Advocate Sumi Soman for the defendant No.2. Points for
determination along with my findings thereon with reasons are as
under:
POINTS FINDINGS
1. Whether the proposed amended is just and
necessary to decide the real question in
controversy between the parties?
Yes
2. What Order? Chamber Summons is
allowed.
REASONS
AS TO POINT NO.1 :
5. It is the contention of the plaintiff that when the suit was
filed, the Bank Guarantee was not invoked but during the pendency of
the suit and after passing of an order of interim relief of injunction,
Bank Guarantee is invoked and amount thereunder has been released in
favour of defendant No.1. The plaintiff wants to bring these facts on
record and also wants to amend the pleadings suitably in view of
change of circumstances by subsequent event.
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4 Ch.S.1886-19 in Comm. Suit no.106-21
6. Exh.'L' filed alongwith chamber summons shows that this
Court by Order dated 05.05.2018, directed the defendant No.2 not to
release any payments against Bank Guarantee to defendant No.1 till
04.06.2018. By email (Exh.'M'), the plaintiff informed about the said
order. Exh.'N' is the copy of email sent by defendant No.2, informing
that the amount has been already remitted to the beneficiary. These
facts on record show that the Bank Guarantee is invoked and amount
thereunder has been remitted by defendant No.2 to defendant No.1.
7. Initially, the plaintiff at the time of filing of the suit has
sought declaration regarding invocation of the Bank Guarantee. The
injunction restraining the defendant No.2 from releasing amount under
the Bank Guarantee was also sought. During the pendency of the suit,
the Bank Guarantee has been invoked and the amount has been
released to defendant No.1. Hence, same is the subsequent event and
facts related with the subsequent event is required to be brought on
record.
8. The plaintiff has relied on following judgments:
a) Atul Medical, Pune Vs. M/s. Cadila Health Care Pvt. Ltd. [2005(4)
Mh.L.J.]
b) Ragu Thilak D. John Vs. S. Rayappan and Ors.(2001)2 Supreme
Court Cases 472
c) Tantrik Shikshan Karmachari Gruha Nirman Sahakari
Sanstha Nagpur through its Secretary K.T. Mulekar Vs.
Shankar s/o Tulshiram Kamble 1985 SCC Online Bom 241:
(1986)2 Bom CR 504
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5 Ch.S.1886-19 in Comm. Suit no.106-21
9. In Atul Medical's case, the plaintiff seeks permission to add
certain subsequent events which does not change the basic facts averred
in the plaint and hence amendment was allowed.
10. In Ragu Thilak D. John's case, during pendency of the suit
the defendant demolished the wall, therefore, the plaintiff filed
application adding relief for recovery of damages. Said amendment was
allowed.
11. In Tantrik Shikshan Karmachari Gruha Nirman Sahakari
Sanstha's case, it is held that, there is no inflexible rule that cause of
action arising subsequent to the filing of the suit cannot be added by
way of amendment. It is also held that to avoid multiplicity of litigation
events taking place after the suit is brought, could be taken into
consideration and amendment may be permitted. On the basis of these
facts, the amendment was allowed.
12. As aforesaid, initially, when the suit was filed, there was no
invocation of Bank Guarantee. Subsequently, the Bank Guarantee has
been invoked and amount thereunder has been remitted to the
defendant No.1. Therefore, due to this subsequent event, if the plaintiff
is required to carry out any amendment in the plaint, I am of the view
that, it shall be allowed. Due to change of circumstances, this
subsequent event is required to be included in the plaint by way of
amendment. The facts related thereto are just and necessary to decide
the real question in controversy between the parties. Hence, the
proposed amendment is just and necessary and required to be allowed.
In the result, I answer Point No.1 in the affirmative.
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6 Ch.S.1886-19 in Comm. Suit no.106-21
AS TO POINT NO.2:
13. In view of my aforesaid findings, the chamber summons is
required to be allowed. In the result, in answer to point No.2, I pass the
following order.
ORDER
1. Chamber Summons No.1886/2019 is allowed.
2. The plaintiff is allowed to carry out the amendment of the
plaint as per schedule.
3. The plaintiff shall provide amended copy of plaint.
4. Chamber Summons No.1886/2019 is disposed off accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 20.09.2021 Mumbai.
Dictated on : 20.09.2021
Transcribed on : 20.09.21 & 21.09.2021
Signed by HHJ on : 21.09.2021
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7 Ch.S.1886-19 in Comm. Suit no.106-21
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.09.2021 at 5.43 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
20.09.2021
Judgment/order signed by P.O. on 21.09.202
Judgment/order uploaded on 21.09.2021
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