Jwaladutta Jankidas Huf Through ... vs Jayant Bhavanji Soni And Anr
2021 Latest Caselaw 6973 Bom

sat                                                                     3.ial 8987-2021.doc


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        ORDINARY ORIGINAL CIVIL JURISDICTION

                    INTERIM APPLICATION (L) NO. 8987 OF 2021
                                      IN
                 COMMERCIAL SUMMARY SUIT (L) NO. 1131 OF 2019

      Jwaladutta Jankidas HUF                            ...Plaintiff
            vs.
      Jayant Bhavanji Soni & Anr.                        ...Defendants

      Ms.Sunanda R. Kumbhat with Kunal R. Kumbhat for Applicant/Plaintiff.
      Mr.Anuuj N. Narula i/b. Jhangiani, Narula & Associates for Defendants.

                                          CORAM : S.C. GUPTE, J.

DATE : 3 MAY 2021

ORAL JUDGMENT :

This interim application has been taken out by the original Plaintiff in the commercial summary suit. The application seeks amendment of the plaint inter alia by deleting three prayers in the suit as also averments in the plaint in support of these prayers.

2 The prayers, which the Plaintiff seeks to delete, concern attachment of certain properties of the Defendants, which are set out therein. The prayers really appear to be in the nature of an application for attachment before judgment, though they are framed as a main prayer in perpetuity and interim prayers in support of it. That was, in fact, one of the grounds on which the original order of conditional leave to defend passed on a summons for judgment taken out by the Plaintiff herein was set aside by the appeal court. The appeal court was of the view that the learned Single Judge, who decided the Plaintiff's summons for judgment, did not consider the Defendants' submission that these prayers amounted to a

sat 3.ial 8987-2021.doc

relief outside the purview of Order 37 Rule 2 of the CPC. The appeal court, accordingly, set aside the order of conditional leave and remanded the summons for judgment for a fresh hearing before the learned Single Judge.

3 Mr.Narula, learned Counsel appearing for the Defendants, who opposes the interim application, submits that the Defendants have acquired an important right to defend the present suit as framed, i.e. as a commercial summary suit, and seek an unconditional leave to defend on the ground that these prayers (which are presently sought to be deleted) amount to a relief outside the ambit of Order 37 Rule 2 of CPC, and no amendment which takes away such right can be allowed. Learned Counsel relies on judgments of the Supreme Court in cases of Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil 1, Estralla Rubber vs. Dass Estate (Pvt.) Ltd.2, Peethani Suryanarayana vs. Repaka Venkata Ramana Kishore 3, and Revajeetu Builders and Developers vs. Narayanaswamy and Sons 4 in support of his submission.

4 The principles of law, on which the courts consider applications under Order 6 Rule 17 of the CPC for amendment of pleadings, have been summarised in the case of Revajeetu Builders and Developers (supra). Para 63 of that judgment, which has been affirmed and reiterated in the subsequent case of Chakreshwari Construction Pvt.Ltd. vs. Manohar Lal5, is quoted below :

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration

1 AIR 1957 SC 363 2 (2001) 8 SCC 97 3 (2009) 11 SCC 308 4 (2009) 10 SCC 84 5 (2017) 5 SCC 212

sat 3.ial 8987-2021.doc

while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

5 Ordinarily, all amendments, which are made bona fide and which are necessary for deciding the real controversy between the parties, are to be allowed. The courts in fact need to have a liberal approach regarding such amendments. The Supreme Court has clearly said so in the case of B. K. N. Pillai vs. P. Pillai 6 (See para 3 of the judgment). So also, it needs to be borne in mind that these principles, which are applied to amendments of plaints or written statements in regular suits, have to be applied equally in case of commercial summary suits. In M.J. International vs. Nakshatra Finlease Pvt.Ltd. 7, this court (Per Vazifdar, J., as the learned Judge then was) has observed that there was nothing in Order 6 Rule 17 of

6 AIR 2000 SC 614 7 2008 (5) All M.R. 562

sat 3.ial 8987-2021.doc

the CPC which indicated that applications for amendment of the plaint in a suit filed under Order 37 of the CPC ought to be treated differently or as a special case and ought not to be permitted even if they otherwise fell within the ambit of Order 6 Rule 17. The learned Judge further went on to observe that if the plaint was amended by an application under Order 6 Rule 17, there was nothing in Order 6 or Order 37 or indeed any other provision of the CPC which prohibited the Plaintiff from taking out a fresh summons for judgment after the suit was amended and that this would be so even if an earlier summons for judgment was withdrawn or even dismissed.

6 Keeping these general principles in mind, let us consider the present interim application. Upon realising that the plaint contains prayers (which are really prayers in the nature of attachment before judgment, though termed as perpetual relief), which travel beyond the ambit of Order 37 Rule 2 of the CPC, the Plaintiff proposes to amend the plaint by deleting the prayers. It cannot be said that allowing the Plaintiff to do so would result into the Defendants loosing valuable accrued right. After all, it would have been perfectly legitimate for the Plaintiff to have applied for withdrawal of this commercial summary suit with liberty to file a fresh suit by deleting the prayers which are beyond the ambit of Order 37 Rule 2. If such fresh suit were to be filed now, that is to say, on today's date, it would be within time. The suit cause of action arose at the earliest on 14 August 2019, when the first cheque issued by the Defendants towards interest for the sum advanced by the Plaintiff to the Defendants was dishonoured by the drawee bank. Other dishonoured cheques date from 2 September 2019 to 30 September 2019. All these cheques were dishonoured and the present commercial summary suit has been based on such dishonour. A summary

sat 3.ial 8987-2021.doc

suit based on all these dishonoured cheques as of today's date would be within time. If that is so, there is nothing in the application for leave to amend the plaint, which, if allowed, would, in any way, prejudice the Defendants by loss of any accrued right. In fact, the alternative course, namely, to allow the Plaintiff to withdraw his suit with liberty to file a fresh amended suit on the same cause of action, would be an unnecessary introduction of multiplicity of proceedings to the benefit of neither the Plaintiff nor the Defendants.

7 The present application satisfies all legal requirements of Order 6 Rule 17 of CPC. The amendment can clearly be described as necessary for proper and effective adjudication of the case. The Plaintiff's case herein is of dishonoured cheques. For proper and effective adjudication of such case, within the ambit of Order 37, it is imperative to allow the Plaintiff to drop his prayers which travel beyond the ambit of Order 37 Rule 2. There is nothing in the application to suggest that it is either not bona fide or is malafide in any sense. The amendment, as we have noticed above, cannot possibly prejudice the other side in a way which cannot be compensated adequately in terms of money. On the other hand, if it were to be refused, it would lead to unnecessary multiplicity of proceedings. The amendment does not constitutionally or fundamentally change the nature or character of the Plaintiff's case and there is nothing in law to suggest that a fresh suit on the amended plaint would be barred by limitation on the date of the Plaintiff's application. The application, accordingly, deserves to be allowed, though the Plaintiff may have to bear the costs of the application.

      8              Accordingly, the following order is passed :








 sat                                                                 3.ial 8987-2021.doc




       (i)      Interim Application is allowed in terms of prayer clause (a);


       (ii)     The statement of learned Counsel for the Plaintiff that she will

withdraw the summons for judgment already taken out in the commercial summary suit and file a fresh summons for judgment based on the amended plaint, is accepted and liberty is granted to the Plaintiff to do so;

(iii) The Plaintiff shall pay costs of this application quantified at Rs.50,000/- to Defendant Nos.1 and 2 in one set through their Advocates within four weeks from today; and

(iv) The interim application is disposed of accordingly.

(S.C. GUPTE, J.)