IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.15 of 2008 Chamber Summons No.15 of 2008 Chamber Summons No.15 of 2008 with with with Notice of Motion No.220 of 2007 Notice of Motion No.220 of 2007 Notice of Motion No.220 of 2007 in in in Writ Petition No.2763 of 2002. Writ Petition No.2763 of 2002. Writ Petition No.2763 of 2002. Captain Kersy Ratonsha Driver ..Petitioner versus The Collector of Chennai & Others ..Respondents Mr.N.C.Naidu a/w. Mr.S.R.Ingule i/b. C.R.Naidu & Company for the Petitioner Mr.D.D.Madan i/b. Mulla & Mulla for the Respondent Nos.3 to 6. Coram : Swatanter Kumar, C.J. & Coram : Swatanter Kumar, C.J. & Coram : Swatanter Kumar, C.J. & J.P. Devadhar, J. J.P. Devadhar, J. J.P. Devadhar, J. Dated : 24th March, 2008 Dated : 24th March, 2008 Dated : 24th March, 2008 P.C. 1. We have heard the learned Counsel appearing for the parties. 2. This Chamber Summons is taken out by the petitioner seeking amendment of the Writ Petition in terms of Schedule "A" to the Chamber Summons. It is stated by the petitioner that because of inadvertent error on the part of the advocate, in the relief clause Respondent Nos.4, 5 and 6 are not referred to -2- and the amendment is sought in the present Writ Petition for impleading these respondents by specific names and adding their names even in the prayer clause. 3. The prayer in the Chamber Summons is opposed by the respondent on the ground that the application for amendment is belated, without any basis, and in fact seeks to add Respondent Nos.4 to 6 as parties now, though they were never parties in the original proceedings. In fact, what is not permissible is sought to be achieved by an indirect method which is impermissible in law. 4. Before examining the contentions raised, reference to some basic facts may be necessary. The Petitioner filed the Writ Petition in this Court stating that there was award in his favour. In furtherance to the award, a Recovery Certificate under Section 33C of the Industrial Dispute Act, 1947 was issued in favour of the Petitioner and he was entitled to recover the sum of Rs.13,13,748/- not only from the company, but also from all the Respondents. However, in the prayer clause, the names of the Respondent Nos.4 to 6 has not been -3- specifically stated. Now, at this stage when the Writ has been pending for quite some time, the present Chamber Summons has been taken out for amendment of the Writ Petition. At the outset, we may notice that mere delay per se may not be sufficient to decline the request for amendment, particularly when it does not either alter the cause of action or substantive content of the Writ Petition. In the present case, none of these exceptions are applicable. In paragraph 2 of the Writ Petition, the Petitioner has specifically taken out the plea that the Respondent Nos.4 to 6 are Directors of Respondent No.3 company and are responsible for the day to day affairs of the company and the said Respondents are jointly and severally liable to pay the amount ordered by the CGIT. Similar averments were made even in other paragraphs, and in paragraph No.4 of the Writ Petition it is specifically averred that Respondent No.3 to 6 was approached for payment, but the same have not been made. Besides this, in paragraph No.14 it was stated that the Respondent No.3 was frustrating the claim of the Petitioner. In paragraph 17 it was specifically averred that the Respondent Nos.3 to 6 in all probability have not -4- deposited the amount of tax and even withheld the said TDS Certificates. These averments were made in relation to the Recovery Certificate issued by the Competent Authority under Section 33(C)(2) of the Industrial Dispute Act. It may also be noticed that the Certificate dated 13th September, 2002 is a composite document which refers to Annexure Form I & Form II which would be integral part of this Certificate. In those certificates the Directors were specifically mentioned in the column of name and address of the Debtors. Exfacie, Form I & Form II have to be treated as part of the Recovery Certificate and its content would therefore form part of the Writ Petition being Exhibit D to the Writ Petition. Besides all this, we may also notice that the Respondent Nos.4 to 6 had on a previous occasion challenged the Order of this Court by filing the Special Leave Petition No.6531 of 2003 against the Order dated 13th February, 2003, wherein the Director was directed to recover the amount from all the parties including these Respondents. In the Special Leave Petition specific grounds were raised in relation to the name of the Directors being incorporated against law and without any proper adjudication. Subsequently that Special Leave -5- Petition was withdrawn unconditionally. 5. In the light of the above circumstances, there is no reason for the court not to allow the Chamber Summons and amendments as prayed in Annexure "A" to the said application. The amendment sought for does not change either the basic case pleaded by the Petitioner, nor the nature of the controversies requires to be adjudicated upon in the present Writ Petition. Addition of specific prayers against the parties who are already added as parties to the Writ Petition would not in any way be impermissible in law. 6. For the reasons aforestated, this Chamber Summons is made absolute in terms of prayer clause (a) and (b). The prayer is allowed without prejudice to the rights of the respondents to take up such objections which are permissile in law in the reply to be filed to the Writ Petition. 7. The amendments are restricted to items II, III & IV of Schedule A to the Chamber Summons. 8. Liberty to the Petitioner to file -6- compilation of Orders passed after filing of the Writ Petition. 9. Stand over to 28th April, 2008. 10. Reply to the amended petition to be filed within two weeks ( Chief Justice.) ( Chief Justice.) ( Chief Justice.) (J.P.Devadhar, J.) (J.P.Devadhar, J.) (J.P.Devadhar, J.)