Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 295/21 in Comm. Suit No. 26/2020. 1 Order.
MHCC010013522021
Presented on : 11-02-2021
Registered on : 11-02-2021
Decided on : 01-10-2021
Duration : 0 years, 7 months, 20 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 295 OF 2021
IN
COMMERCIAL SUIT NO. 26 OF 2020
M/s. Mafatlal Industries Ltd. ...Plaintiff/Applicant
Versus
Sowkar Textiles & Tailors ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 1st OCTOBER, 2021.
Shri Satyadeo Joshi and Shri V.P.Shastri, Advocate for the plaintiff.
Shri Jagdish Hegde, Advocate for the defendant.
ORDER
1. This chamber summons is moved by the plaintiff for
amendment in the plaint. Perused chamber summons, supporting
affidavit and affidavit in reply. I have also gone through citation relied
by the plaintiff. Heard learned counsel Shri Satyadeo Joshi and Shri
V.P.Shastri for the plaintiff and learned counsel Shri Jagdish Hegde for
the defendant.
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Ch/s No. 295/21 in Comm. Suit No. 26/2020. 2 Order.
2. It is contention of the plaintiff that a few documents /
exhibits in respect of the office premises and accounts of the plaintiff
had maintained in the name of the defendant showing the balance
amount. Similarly, registration certificate of establishment had been
issued by concern authority. The plaintiff has also referred certificate of
registration under the Central Sales Tax (Registration and Turnover)
Rules, 1957. By referring various documents from Exh.I to M referred
in affidavit in support of chamber summons and ScheduleI of proposed
amendment, the plaintiff contended that the documents sought to be
incorporated are not new documents and no new fact is sought to be
incorporated. The plaintiff had left out inadvertently these documents
while filing the claim. No harm or prejudice shall be caused to the
defendants if the relief as sought is granted. By stating so, the plaintiff
prayed to allow proposed amendment as per ScheduleI and Schedule
II.
3. The defendant opposed the chamber summons by
contending that proposed amendments are neither necessary nor
relevant for the purpose of determining the real question in controversy
between the parties. The plaintiff is not trying to bring on record
subsequent developments. Chamber summons is not maintainable
under Order VI Rule 17 of the CPC. The defendant has filed written
statement on 04/01/2021. The plaintiff is trying to fill up lacunas after
going through the contents of written statement. The plaintiff refused
to provide inspection of documents as per notice dated 27/01/2021
issued by advocate for the defendant. The plaintiff should include
whole claim and all documents in support thereof at the time of filing of
the suit. Documents mentioned in ScheduleI are already on record as
Exhibits A, B, C, D, E, F and G and they are annexed to the plaint at
-- 2 of 7 --
Ch/s No. 295/21 in Comm. Suit No. 26/2020. 3 Order.
page no.17 to 29. Other documents in ScheduleI i.e. Exhibits I, J, K, L
and M are not necessary for the purpose of determining real
controversy. The plaintiff has not made any statement on oath that
those documents were not available at the time of filing of the suit and
they are surfaced to the earth now. The plaintiff stated in chamber
summons that the documents have been inadvertently left out and it is
negligence on his part. The plaintiff has already pleaded about ledger
in para 7 of the plaint. With these grounds raised in affidavit in reply,
the defendant prayed for dismissal of chamber summons with heavy
cost.
4. Learned counsel Shri Satyadeo Joshi for the plaintiff
reiterated details in chamber summons and submitted that documents
Exhibits I to K demonstrate occupation of premises within the
jurisdiction of this Court. Therefore, production of these documents is
necessary to show that this Court has jurisdiction to deal with the suit.
This amendment will not cause harm to other side. There is no change
in the claim or nature of the suit as a result of proposed amendment.
Issues are not framed and matter is at initial stage. He relied upon para
14 in the case of Peethani Suryanarayana & Anr. V/s. Repaka
Venkata Ramana Kishore & Ors. Civil Appeal No. 942/2009 arising
out of SLP (Civil) No. 23191/2005 decided by Hon'ble Supreme Court
on 12/02/2009 and submitted that the proposed amendment is
necessary for the purpose of bringing to the fore the real question in
controversy between the parties and the refusal to permit the
amendment would create needless complications at the stage of
execution. He prayed that chamber summons may be allowed.
5. On the contrary, learned counsel Shri Jagdish Hegde for
-- 3 of 7 --
Ch/s No. 295/21 in Comm. Suit No. 26/2020. 4 Order.
the defendant submitted that if the documents in ScheduleI were not
available at the time of filing, amendment could have been considered.
Document no.1 is prior to the date of filing of the suit. The suit cannot
be filed without documents. The plaintiff wants to file documents by
way of amendment and it is not permissible. He referred Order VI Rule
17 of the CPC and submitted that case of the plaintiff is not covered by
the said provision. The plaintiff did not place on record mandatory
documents. The plaintiff has stated in para 8 of the supporting affidavit
that the documents have inadvertently left out. It means that the
documents were already available. The plaintiff should have shown
necessity of documents for deciding the suit. He relied upon latin term
'Ignorantia juris non excusat'. According to him, the plaintiff is trying to
cover up law points raised in the written statement. He further
submitted that the plaintiff filed suit on 25/11/2019 and he proposes to
amend the plaint for inserting details of the statement recorded by
police on 11/06/2018. Incident prior to the date of the suit should
have been pleaded in the plaint. Vague contentions are raised in
ScheduleII. He further submitted that the suit is filed as a commercial
suit and citation relied by the plaintiff is relating to regular suit.
Therefore, the said citation is not applicable to the present suit. By
raising these points, he prayed for dismissal of chamber summons.
6. Learned counsel Shri V.P.Shastri for the plaintiff submitted
in reply argument that this is pretrial amendment and it can be
allowed.
7. After considering rival contentions and submissions of both
sides, it is necessary to consider that the suit is registered as a
commercial suit on 26/11/2019. The defendant filed written statement
-- 4 of 7 --
Ch/s No. 295/21 in Comm. Suit No. 26/2020. 5 Order.
(Exh.5) on 04/01/2021. Then, present chamber summons is presented
on 08/02/2021. It means that the plaintiff consumed time of more
than 14 months for filing this chamber summons from the date of the
suit. ScheduleI of proposed amendment reveals that the plaintiff wants
to delete list of documents filed with the plaint and replace it with list
of documents elaborated in the schedule. So far as ScheduleII is
concerned, the plaintiff has proposed insertion of para 19a after para 19
of the plaint in order to elaborate details of documents in ScheduleI.
While doing so, he has also given details of incident of burning of his
godown situated at Bhiwandi on 05/06/2018. In short, the plaintiff
wants to incorporate additional documents by replacing the list filed
with the plaint and also wants to plead the incident which had occurred
prior to filing of the suit.
8. It is clear from discussion in above para that the plaintiff
does not want to bring on record the fact relating to subsequent
development. In addition to it, the plaintiff himself claims that the
documents were left out inadvertently. It demonstrates custody of
documents with the plaintiff prior to filing of the suit. Order VI Rule 17
of the CPC allows parties to carry out amendment before
commencement of the trial. But nature of proposed amendment is such
that the plaintiff is trying to place on record additional documents by
way of amendment in the plaint. Basically, additional documents can
be placed on record by moving application for production of documents.
Such application can be decided after obtaining say of the other side
and after hearing both sides. Question of permissibility to produce the
documents arises in view of restrictions imposed by Order XI of the
Amended CPC as per Schedule to the Commercial Courts Act, 2015 (for
short 'the Act').
-- 5 of 7 --
Ch/s No. 295/21 in Comm. Suit No. 26/2020. 6 Order.
9. The plaintiff has attempted to give byepass to provisions of
Order XI of the Amended CPC as per Schedule of the Act by introducing
the aspect of amendment of list of documents annexed with the plaint.
While doing so, the plaintiff has not placed on record copies of
documents referred in ScheduleI and II of the proposed amendment.
One provision of law cannot be permitted to be utilized for nullifying
effect and operation of another provision of law. The plaintiff has
expressly followed wrong course of procedure in violation of Order XI
of the Amended CPC as per Schedule of the Act.
10. With this regard, Hon'ble Supreme Court has discussed the
scope of Order XI of the Amended CPC as per Schedule of the Act in the
case of Sudhir Kumar @ S. Baliyan V/s. Vinay Kumar G.B. in Civil
Appeal No. 5620/2021 (Arising out of SLP (C) No. 13082/2021)
decided on 15/09/2021. In the said citation, Hon'ble Supreme Court
discussed ambit of Order XI Rule 1 (4) r/w Order XI Rule 1(5) of the
Amended CPC as per Schedule of the Act and held that the plaintiff has
to establish the reasonable cause for nondisclosure alongwith the
plaint. In the said citation, earlier suit was withdrawn and the fresh suit
was filed. In the fresh suit, documents were produced within 30 days
from the date of the suit. Hon'ble Supreme Court permitted the plaintiff
only to place on record the documents which were subsequently
discovered. Hon'ble Supreme Court also discussed the scope of terms
'documents in its power, possession, control or custody'.
11. Considering all attending circumstances, proposed
amendment cannot be allowed. Citation relied by the plaintiff is not
applicable to the course followed by the plaintiff. For all these reasons,
I pass the following order :
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Ch/s No. 295/21 in Comm. Suit No. 26/2020. 7 Order.
ORDER
1. Chamber Summons No. 295/2021 is dismissed.
2. Proceedings of Ch/s No. 295/2021 are closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 01/10/2021. Mumbai.
1. Dictated online on : 01/10/2021.
2. Signed on : 01/10/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/10/2021. 5.20 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 01/10/2021.
Judgment/Order signed by P.O. on 01/10/2021.
Judgment/Order uploaded on 01/10/2021.
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