1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1647 OF 2007 IN SUIT NO. 2551 OF 2004 Nilesh C. Sangani & Ors. ...Plaintiffs/Applicants Vs. Rakesh V. Zangada & Ors. ...Defendants /Respondents Mr.R.D. Soni i/b. M/s. Pimenta Kapasi & Co for Plaintiffs Ms.M.Gosar for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 5TH MAY, 2008 P.C. 1. The Plaintiffs seek to amend the plaint to add paragraph 27(a) to paragraph No.27(c), to amend paragraph 35,40 and to add prayers (d)(1), (d)(2)(h) to the Plaint. 2. The Plaintiffs also seek to add 2 documents to the list of documents. The suit is based upon the letter of Plaintiff No.2 dated 31 st March 2003 signed also by the Defendant No.1. The suit as filed is for declaration that certain agreement is subsisting and for specific performance of that agreement. As a party to that agreement certain shares of the Company of the parties were to be given to the Plaintiffs 2 upon valuation. The valuation was to be done by one Mr. Niranjan Nanavati. 3. In respect of the valuation of the shares, the Plaintiffs did not sue upon the premise that the valuation to be made by Mr. Niranjan Nanavati would be made as represented in the agreement. The Plaintiffs sought to refer the matter to Arbitration under Section 11 of the Arbitration and Conciliation Act, 1996. The Plaintiff's application was dismissed. The Plaintiffs have not obtained any relief in respect of the clause regarding to the valuation to be made by Niranjan Nanavati. 4. The Plaintiffs, therefore, did not obtain any remedy under that lis. The Plaintiffs incorrectly, sought remedy in the Arbitration Application No.264 of 2005, which came to be rejected in June, 2007. The time taken by the Plaintiff to prosecute the remedy in an incorrect forum is required to be allowed for counting the period of litigation. The amendment relates to the date of the suit. The suit is filed on 19th August 2004. The Arbitration Application is taken out in 2005. It is rejected in June, 2007. This application is taken out on 3 rd October 2007. The claim of the Plaintiffs under the said clause which the Plaintiffs mistakenly took to be an arbitration agreement is, therefore, not barred by the law of 3 limitation. 5. Every party must have remedy for the wrong done to the party in some Court. If the Arbitration Application is not maintainable, the suit for that relief must be maintainable. It will be maintainable in a Civil Court. Such a suit for other reliefs is already filed. This relief also needs to be added to the reliefs already sought. The amendment is in essence for that relief. Interest of justice demands that the amendment to be granted. Chamber Summons is made absolute in terms of prayer Clause (a). 6. Plaintiffs to carry out amendments within 8 weeks. Plaintiffs also to amend the copies of the plaint served upon the Defendants within 8 weeks. (SMT. ROSHAN DALVI, J.)