Interim Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.3002021 in Commercial SU3732020
MHCC010013702021
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS No.300 OF 2021
(CNR No.MHCC010013702021)
IN
COMMERCIAL SUIT No.373 OF 2020.
(CNR No.MHCC010121312019)
M/s. Mafatlal Industries Ltd. }...PLAINTIFF.
VERSUS
Standard Enterprises and Ors. }...DEFENDANTS.
Shri.Satyadev Joshi, learned advocate for the plaintiff.
Defendant Exparte.
CORAM : HIS HONOUR JUDGE SHRI.N.P.TRIBHUWAN (C.R.NO.32)
O R A L O R D E R
(Delivered on 09/06/2022)
1. This Chamber Summons has taken out by the plaintiff and
seeks relief in terms of prayer clause (a) and submitted that he be
allowed to carry out amendment as per schedule 1 and 2 in the body of
the plaint.
2. Defendants are served with Chamber Summons but failed
to appear. Hence, this proceeding proceeded at without reply. Perused
Chamber Summons and affidavit. Heard learned counsel of plaintiff.
Plaintiff has filed this Commercial Suit No.373 of 2020 for recovery of
amount of Rs.3,98,313/. It is a case of plaintiff that it is engaged in
business of manufacturing and supply of fabrics and textile. Defendant
Nos.1 and 2 are proprietorship firm. Defendant No.2 is a agent of
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defendant No.1. Defendant No.1 has placed order to plaintiff through
defendant No.2 total of Rs.2,18,229/. Plaintiff has supplied goods and
raised tax invoices. Defendant No.1 has received the said goods.
Plaintiff has raised demand notice dtd.07/07/2018 and thereby
demanded the outstanding amount. However, defendants failed to pay
the said amount. Therefore, plaintiff has filed the above commercial
suit.
3. Now, it is the contention of the plaintiff that at the time of
filing suit some documents left out inadvertently to be incorporated in
plaint. Those documents sought to be incorporated are various
certificates issued by Government Departments prior to the date of
filing of the suit. These documents were not in the knowledge of the
representative of plaintiff. Due to the proposed amendment the nature
of subject matter will not change. Thus, plaintiff prayed for amendment
and permission to produce additional documents as above.
4. Learned counsel of plaintiff relied on case law of Puran
Ram Vs. Bhaguram: Appeal (Civil) 1673/2008 dtd.29/02/2008,
wherein Hon'ble Supreme Court observed and held that after closely
examining the provisions made under Section 26 of the Specific Relief
Act 1963, we do not find any difficulty to hold that in a suit for specific
performance of contract for sale, it is permissible to amend a part of the
description of the suit property not only in the plaint but also in the
agreement. Section 26 clearly says as to when a contract or other
instrument can be rectified and provides that when through fraud or a
mutual mistakes of the parties, the agreement in writing does not
express their real intention, it is open to the parties to apply for the
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amendment of the instrument.
5. However the present suit is under the provisions of the
Commercial Courts Act 2015. Under Order XI of CPC plaintiff shall file a
list of all the documents and photocopies of all documents, in its power,
possession, control or custody, pertaining the suit alongwith the plaint
including (a) documents referred to and relied on by the plaintiff in the
plaint. (b) documents relating to any matter in question in the
proceedings, in the power, possession, control or custody of the
plaintiff, as on the date of the filing the plaint, irrespective of whether
the sale is in support of or adverse to the plaintiff's case. (c) Nothing in
this rule shall apply to documents produced by plaintiffs and relevant
only (i) For the crossexamination of the defendant's witness or (ii) in
answer to any case set up by the defendant subsequent to the filing of
the plaint or (iii) handed over to a witness to refresh his memory.
6. This suit is under the provisions of the Commercial Courts
Act and there is specific provision for producing documents as
mentioned in para supra. Therefore, the ratio laid down in above case
law is not applicable to this case. It is contention of plaintiff that on
05.06.2018 there was huge fire at the godown of the plaintiff situated
at Bhivandi which got exhausted on 06/06/2018. Police authorities
have registered FIR pertaining to the said incident. The statement of
manager of plaintiff who was incharge of the godown recorded on
11/06/2018.
7. The defendants did not appear. Application is supported by
affidavit of representative of plaintiff. The documents sought to be
placed on record by plaintiff are Board Resolution dtd.01/08/2019,
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tax invoices dtd.18/06/2016, transport receipts, ledger account,
demand notice dtd.07/07/2018, email, statement of plaint, registration
certificate under the Maharashtra Shops and Establishment Act and
GST certificate of registration under Central Sales Tax Rules, certificate
under Maharashtra Value added Tax, police complaint and statement.
These documents are relevant to determine the real issues between the
parties. The suit is proceeded exparte against the defendant. Plaintiff
has not adduced any evidence. Due to the proposed amendment and
the additional documents the nature of subject matter will not change.
Thus, it is desirable to allow the plaintiff to carry out amendment as per
prayer clause(a). Hence, following order is passed.
ORDER
Chamber Summons No.300 of 2021 in Commercial Suit
No.373 of 2020 is made absolute in terms of prayer clause (a) of
the Chamber Summons and plaintiff is directed to carry out
amendment within prescribed period and submit the amended
copy of the plaint on or before next date.
No order as to costs.
Sd/
Date :09/06/2022. (N.P.TRIBHUWAN)
Dictated on : 09/06/2022. Judge, C.R.No.32,
Checked on : 09/06/2022. City Civil Court,
Signed on : 09/06/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
10.06.2022 at 4.45 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUWAN
(C.R.No.32)
Date of pronouncement of Order 09/06/2022
Order signed by P.O. on 09/06/2022
Order uploaded on 10/06/2022
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