Final Order 1

Order Details: Chamber summons
Pdf Text: CNR MHCC01-01013005-2019 1 Ch/Summons 2241/19
MHCC010130052019
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 2241 of 2019
IN
SUMMARY SUIT NO. 356 OF 2017
Sunkappa Gurappa Jadhav
Age 44 years of Mumbai, an
adult, Indian inhabitant, having
his address at Lal Patra Chawl
No. 251, Room No. 10, Cross Road,
Dharavi, Mumbai-400 017 ... Plaintiff
V/s.
Satish Chandrakant Bhoir
Age not known of Mumbai an
adult Indian inhabitant working
for gain with Head Post Office
Dadar (East), Mumbai 40014 ... Defendant
Appearances:-
Ld. Advocate Harish Sakpal i/b. Mr. Ramesh Jain for the plaintiff.
Ld.Advocate Mr. Chittaranjan Das for the Defendant
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 08th FEBRUARY, 2021
O R D E R
1. Vide this Chamber summons, the defendant requested
to grant permission to carry out the amendment in the application
for leave to defend. The plaintiff resisted the same.
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2. Heard the Ld.Advocate on behalf of the defendant.
Also heard the Ld. Advocate on behalf of the plaintiff.
3. Considering the material on record and submissions
made on behalf of the parties, points arise for determination along
with my findings thereon for the reasons recorded are as under:-
Sr.No. POINTS FINDINGS
1. Whether the proposed amendment is
necessary to determine real controversy
between the parties ?
No.
2. Whether the defendant is entitled to
carry out amendment ?
No.
3. What order ? As per final order
REASONS
AS TO POINTS NOs.1 to 3 :-
4. It appears that the plaintiff, vide present suit under
Order 37, prayed for recovery of Rs.50,141.09/- from the
defendant. Brief contentions in the plaint are that, the plaintiff is a
money lender. In consideration of loan of Rs.45,000/- given by
the plaintiff to the defendant, the defendant issued promissory
note of the same amount with interest at the rate of 15% in favour
of the plaintiff. However, promissory note was not honoured and
the defendant failed to make the payment. Resultantly, by present
suit, the paintiff prayed for recovery of amount.
5. The defendant appeared. Upon service of summons
for judgment, the defendant filed application for leave to defend
along with the affidavit. Thereafter, arguments on behalf of the
plaintiff were heard by the Court on 24.04.2019. The matter was
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placed for arguments on behalf of the defendant, it was adjourned
to 12.07.2019, thereafter to 27.09.2019 and thereafter, on
19.10.2019, on which date the defendant filed present chamber
summons to grant permission to amend the leave to defend.
6. The Ld. Advocate on behalf of the defendant argued
that, the averments to the effect that, whether the plaintiff has
money lending license or not and further request that he should
produce copy of money lending license duly renewed in periodical
manner with all details and further copy of statement of account
submitted to RBI, need to be added in the application for leave to
defend. Accordingly, prayer clause of the leave to defend vide
prayer No. (e) is required to be added to direct the plaintiff to
produce the copy of money lending license with all the details and
statement of account submitted to the RBI. Ld. Advocate for
defendant contended that, these averments are material and
necessary to be added in the application for leave to defend.
Though the number of money lending licence is mentioned in the
demand promissory note, same is not sufficient to show that the
license is valid. He argued that court should be liberal in granting
amendments. Therefore, he requested to allow the chamber
summons and grant permission to amend the application for leave
to defend.
7. On the other hand, the Ld. Advocate on behalf of the
plaintiff argued that the chamber summons has been filed in order
to delay the proceeding. The pleadings in the leave to defend are
sufficient and no need to carry out any amendment as material
proposed to be added by way of amendment is already there in
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the application for leave to defend. Therefore, he requested to
reject the application.
8. The Ld. Advocate on behalf of the defendant relied on
the decision in the case of Jyotsna K. Valia V/s. T.S. Parekh and
Co., 2007 (3) Bom CR 772. I have carefully gone through the
decision given in the case. The Ld. Advocate for the defendant
relied on para 5 of the decision. In para 5, the amended provision
of order 37 rule (1) (2) of the Code of Civil Procedure, has been
quoted. There can be no duality of opinion as to the provision
contained in the statute. The core question before this Court is
whether the amendement as proposed is necessary to be
incorporated in the application for leave to defend.
9. It must be borne in the mind that, this is summary
suit and the application for leave to defend filed by the defendant
is not written statement but merely request to grant leave to
defend. If leave to defend is granted to the defendant, he would
be entitled to file written statement, but at this stage there is no
written statement and amendment has been prayed only in the
application for leave to defend. It is true that the court should be
liberal in granting the amendments if the same are prayed at the
early stage. Equally, it is bounden duty of the court to see,
whether the amendment as prayed is necessary to determine
controversy between the parties. At present, controversy to be
decided is, whether leave to defend should be granted to the
defendant or not ?
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10. The first part of the amendemnt as proposed may be
quoted as under,
“that a question comes in the defendant’s mind that, the
plaintiff is having money lending licence or not”.
Now this is not a positive assertion but something in the mind of
the defendant or question in the defendant’s mind as to whether
the plaintiff has money lending licence or not. It being no positive
assertion, such amendment should not be permitted. By further
proposed amendment the defendant contends that the plaintiff
should produce copy of his money lending licence duly renewed
with all details and should also produce copy of statement of
accounts submitted to RBI and accordingly prayer is proposed to
be added in the application for leave to defend to direct the
plaintiff to produce the copy of money lending licence and the
relevant statement of account.
11. The basic question before the Court is, whether
permission should be granted to the defendant to defend, in other
words whether leave to defend can be granted to the defendant.
The application for leave to defend accordingly should contain
only the specific averments either admitting the contentions of the
plaintiff or denying the contentions of the plaintiff and specific
stand of the defendant in order to make out the case for leave to
defend. The applicatioin for leave to defend need not contain
anything more. The first part of amendment, as already stated, is
regarding the question in the mind of the defendant, whether the
plaintiff has money lending licence or not that is not any specific
stand of the defendant but just a question in his own mind. The
amendment in such words cannot be allowed.
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12. The next parts of proposed amendments are requests
of the defendant to direct the plaintiff to produce money lending
licence and statement of account. Such request should be made
by separate application and the application for leave to defend
need not contain any such prayers. Here, it is important to note
that already the application for leave to defend runs into 31 pages.
Though the number of pages are not material, what seems from
the application is that, it is unnecessarily lengthy. Right from page
11 to page 30, the defendant has merely reproduced different case
laws and the principles laid down therein including arguments on
behalf of the different parties in the relevant case laws. Normally,
the law need not be pleaded in the pleadings. Still one can
understand that in brief the ratio of decision of superior Court is
stated, in very brief manner and to the extent of necessity. But,
the manner in which the case laws are reproduced in the
application for leave to defend is improper. It is appropriate to
note here, that in para 14, page 14 to page 30, the defendant has
quoted complete decision as it is of Delhi High Court including
the title started with as “In the High Court of Delhi”. Thus, it is
clear that already application for leave to defend contains
unnecessary things and further amendments as prayed are
unnecessary. Having regard to all these circumstances, the
amendments as prayed are unnecessary.
13. Most importantly, there are already averments in para
7 page 8 of the application for leave to defend that the plaintiff
has not complied with the formalites under the Money Lenders
Act, he did not attach copy of money lenders licnece duly
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renewed, he has not enclosed/exhibited the copy of statement of
money transaction and books of accounts which is mandatory to
be submitted to RBI. There is further averment that this Court
should give direction to the plaintiff to submit all the above
documents. Thus, the averments sought to be added by way of
amendment are already there in the application for leave to
defend in para 7. Considering all these circumstances, the
amendments as proposed are not necessary to be incorporated.
Hence, point No.1 is answered in the negative. The defendant is
not entitled to carry out the amendment. Hence, Point No.2 is
answered in the negative. In answer to point No.3, order as
follows is passed:-
ORDER
1. Chamber Summons No. 2241 of 2019 is rejected.
2. The Chamber Summons is disposed of accordingly.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 08.02.2021 City Civil Court, Mumbai
Dictated on : 08.02.2021
Transcribed on : 09.02.2021
Signed on : 12.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 12.02.2021 3.45 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
08.02.2021
JUDGMENT /ORDER signed by P.O. on 12.02.2021
JUDGMENT /ORDER uploaded on 12.02.2021
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