Bombay High Court
Ravin Infraproject Private ... vs Nexus Green Limited on 24 August, 2023
Bench: Abhay Ahuja
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27 - IA 1747 OF 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1747 OF 2023
IN
COMMERCIAL SUMMARY SUIT N O. 1281 OF 2019
Ravin Infraproject Pvt. Ltd. ..... Applicant/
Plaintiff
VERSUS
Nexus Green Ltd. & Anr. Limited ..... Respondent
(Org.Defendant)
Mr. Karl Tamboly, a/w. Mr.Rudra Deosthali i/b. Parinam Law
Associates for the Applicant/Plaintiff.
Ms.Dhara Modi, a/w. Ms.Nandita Dethe i/b. Singhania Legal Services
for the Defendant No.1.
Mr.Dhaval A.Patil i/b. M/s.K.Ashar & Co. for the Defendant No.2.
CORAM: ABHAY AHUJA, J.
DATE : 24th AUGUST, 2023
P.C:-
This is an application filed by the plaintiff seeking to amend the
plaint in terms of the schedule of amendment annexed to the
application. Mr.Tamboly, learned counsel for the applicant/plaintiff
would submit that the scheduled amendments are being carried out
pursuant to an order dated 28th June, 2022 of this Court wherein after
hearing the summons for judgment, the learned Single Judge has
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permitted the withdrawal of the summons for judgment with liberty to
apply for an amendment and to file a fresh summons for judgment
thereafter.
2. Learned counsel submits that it is pursuant to the said liberty that
this application is being filed.
3. Learned counsel would submit that the proposed amendments
are clarificatory and explanatory in nature and do not seek to alter or
amend the plaint so as to prejudice the defendant. No new facts are
being brought on record and that the amendment will not in any way
change the nature of the suit. Learned counsel therefore prays that the
application be allowed.
4. On the other hand, learned counsel for the respondent no.1 who
refers to the affidavit in reply dated 8 th June, 2023 submits that
although the order granting liberty to amend is of 28th June, 2022, the
application for amendment has been filed only on 20th April, 2023 and
that there is a considerable delay in filing the application. Learned
counsel would also submit that the plaintiff is trying to add new facts in
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the plaint which were well within the knowledge of the plaintiff and if
the application is allowed, the same will cause delay, hardship and
prejudice to the defendant no.1.
5. It is also being submitted in the reply that the plaintiff is trying to
alter the basic structure of the suit which is not permissible in law and
therefore the application be dismissed.
6. Learned counsel for the defendant no.2 also opposes the interim
application on the ground of delay and submits that the application be
dismissed.
7. I have heard learned counsel and considered the rival
contentions.
8. This Court by order dated 28th June, 2022 had after hearing the
summons for judgment permitted withdrawal of the same and granted
liberty to the plaintiff to apply for amendment and to file fresh
summons for judgment. The said order did not specify any time limit
within which the interim application was to be preferred. For the sake
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of convenience, the said order is usefully reproduced as under :-
1. After this Summons for Judgment was heard for
some time, Mr. Tamboly, on instructions, states that
some amendments are required to be carried out in the
plaint. He therefore seeks leave to withdraw this
Summons for Judgment with liberty to apply for
amendment and to file a fresh Summons for Judgment.
2. Accordingly, the Summons for Judgment is allowed
to be withdrawn with liberty as aforesaid.
9. The plaintiffs have filed this interim application on 20 th April,
2023 seeking to amend the plaint in terms of the schedule. A perusal of
the schedule of the amendments indicates that considering the nature of
the suit, the amendments are clarificatory and explanatory in nature as
there is already reference to swift messages and bills of exchange in
paragraph (18) and paragraph (25) of the plaint. Ex.I of the plaint also
refers to the invoices co-relating with the bills of exchange. On a query
from the Court as to the table with respect to the proposed Ex.J-1,
Mr.Tamboly, learned counsel would submit that that is merely co-
relation between the invoices, the bills of exchange and the swift
messages referred to in the plaint and the said documents are already
annexed as the exhibits to the plaint. These facts and explanation by
the learned counsel for the plaintiff are not disputed by the learned
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counsel for the defendants. Except to say that there is delay in filing of
the interim application for amendment, there is no other objection
raised on behalf of the defendants.
10. It therefore does not appear that the proposed amendments will
in any way change the nature of the suit. No prejudice in my view
would be caused to the defendants as the defendants can always file
reply to the summons for judgment. As noted above, the order dated
28th June, 2022 granting liberty to the plaintiff to amend does not
specify any outer limit within which the interim application was to be
preferred. Therefore, contention on behalf of the defendants need not
be entertained particularly when they would get an opportunity to file
reply to the summons for judgment on merits.
11. Having heard learned counsel and having perused the interim
application as well as the reply filed by the defendant, this Court is of
the view that the amendment as prayed for be allowed.
12. Let the plaint be amended within a period of two weeks. Let the
amended plaint be served upon the defendants within a period of one
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week thereafter. Let the summons for judgment be taken out within a
period of one week after service of the amended plaint upon the
defendants.
13. Application stands allowed in the above terms. The parties to
bear their own costs.
14. Let the Registry list the suit for directions on 29th September,
2023.
[ABHAY AHUJA, J.]
Signed by: Kanchan V. Mayekar
Designation: PA To Honourable Judge
Date: 25/08/2023 20:40:03
