Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 552/21 in Comm. Suit No. 246/2019. 1 Order.
MHCC010024492021
Presented on : 10-03-2021
Registered on : 10-03-2021
Decided on : 18-03-2021
Duration : 0 years, 0 months, 8 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 552 OF 2021
IN
COMMERCIAL SUIT NO. 246 OF 2019
Babulal Manikchand Mundra ...Plaintiff
Versus
Akshay J. Gupta And Anr. ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 18th MARCH, 2021.
Ms. Ankita Pathare, Advocate for Plaintiff.
Mr. Tiwari, Advocate for Defendant.
ORDER
1 This is a chamber summons taken out by the defendant to
record one paragraph by way of amendment in written statement in
respect of clause no 14 of the loan agreement dated 19.07.2011.
Perused reply endorsed by plaintiff on overleaf of chamber summons.
2. Learned advocate Mr. Tripathi for defendant submits that
at the time of filling written statement it appears to be mistake of
advocate that he could not obtain ground of Arbitration clause despite it
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Ch/s No. 552/21 in Comm. Suit No. 246/2019. 2 Order.
was specifically mentioned in agreement dated 19.07.2011. It is
oversight of then advocate for defendant for which client shall not
suffer. It is prayed for permission to amend written statement.
3. Learned advocate Mr. Anil Agarwal for plaintiff submits
that detail documents of written statement is on record. Issues are
framed by this court vide Exh.7. PW.1 Mr. Babulal filed evidence
affidavit vide Exh.8, Crossexamination has been started by defendant.
Therefore, according to plaintiff present ch/s is filed with intend to
prolong trial. It is prayed to reject the ch/s.
4. There is substance in submission of learned adv. for
plaintiff. However, the impugned loan agreement dated 19.07.2011 is
not disputed. Both side are relying on said agreement. It can be stated
that agreement dated 19.07.2011 is genesis of commercial relations
between plaintiff and defendant. In view of said agreement clause no.
14 is in respect of advocate S.K. Jain to be appointed as Arbitrator.
5. Learned advocate Agarwal for plaintiff added that in view
of section 4 and 8 of the Arbitration and Conciliation Act,1996 it was
necessary on the part of defendant to obtain plea to send the matter to
the Arbitrator, prior to filling W.S. It appears that defendant has
waived the privilege to send the matter to the Arbitrator. Accordingly,
defendant can not obtain benefit of the Arbitrator.
6. It is true that in view of section 4 and 8 of the Arbitration
and Conciliation Act,1996 , it is incumbent on the part of defendant to
obtain the privilege of para no.14 of said agreement prior to submission
of written statement. However, there is no prayer of defendant to send
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Ch/s No. 552/21 in Comm. Suit No. 246/2019. 3 Order.
the matter to the arbitrator. It is simple prayer of the defendant to
include one paragraph in respect of clause of arbitrator as per para
no.14 of agreement dated 19.07.2011.
7. It is to note that various cheques given by the defendant
came to be bounced. In Criminal Case no. 773/13 there was a joint/
consent pursis filed by both side on 15.03.2014. In view of such
consent terms, it is open for debate to evaluate propriety of clause no.
14 in respect of arbitrator.
8. It is necessary to note there is no inconsistent plea raised by
the defendant. In view of Usha Swami V/s Kiran Swami – (2007) 5
SCC 602, it is held that addition of a new ground of defence or
substituting or altering a defence or taking inconsistent pleas in written
statement can be allowed as long as the amended pleadings do not
result in causing grave injustice and irretrievable prejudice to plaintiff
or displacing him completely.
9. Considering entire facts on record it is correct that
defendant has prayed for amendment after part crossexamination of
PW1. However, it will not cause any prejudice to the plaintiff. Hence,
chamber summons is allowed. Hence, the order.
ORDER
1. Chamber summons no. 552/21 is allowed, subject to cost of
Rs. 1,000/ (Rupees One Thousand Only) be paid to
plaintiff within a week.
2. Defendant to carry out the amendment in written
statement within a week.
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Ch/s No. 552/21 in Comm. Suit No. 246/2019. 4 Order.
3. Suit is part heard, both side to expedite hearing. Defendant
to submit list of witness.
4. Chamber summons no. 552/21 is disposed off accordingly.
(G.G.BHANSALI)
Judge, City Civil & Sessions Court,
Date : 18/03/2021. Mumbai.
1. Dictated on : 18/03/2021.
2. Transcribed on : 18/03/2021.
3. Signed on : 18/03/2021.
4. Delivered to Certified :
Copy Section on
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Ch/s No. 552/21 in Comm. Suit No. 246/2019. 5 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF TYPIST
19/03/2021. 5.45 p.m. Mrs. H.D. Parab
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 18/03/2021.
Judgment/Order signed by P.O. on 18/03/2021.
Judgment/Order uploaded on 19/03/2021.
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