1 chs165-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY & VICE ADMIRALTY JURISDICTION CHAMBER SUMMONS NO.165 OF 2010 IN ADMIRALTY SUIT NO.3654 OF 2007 Coastal Marine Construction & Engineering Ltd. .. Plaintiffs Versus The Ship Owners Mutual Protection & Indemnity Association (Luxembourg) & Anr. .. Defendants Mr.Ashwin Shankar for plaintiffs Mr.Kunal Shah i/b. M/s.Bhatt & Saldanha for defendant No.1 Mr.A.M.Vernekar i/b. Narichania & Narichania for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th November 2011. P.C.: 1] Plaintiff has moved this chamber summons for amendment to the plaint and essentially to transpose the defendant No.1 as party plaintiff. 2] Upon perusal of the chamber summons and the schedule thereto so also the affidavit in support, it is apparent that after institution of the suit, there has been agreement between plaintiff and first defendant. The first defendant has agreed to waive its claims against plaintiffs and withdraw the demand. Equally, the plaintiff has agreed to waive and withdraw its demand. It is pursuant to this arrangement an application for transposition of defendant No.1 as co-plaintiff is made and all that is referred to is power of this Court to permit such course under Order XXIII of Code of Civil Procedure, 1908 and particularly Rule 1A thereof. 2 chs165-10.doc 3] Order XXIII postulates withdrawal or abandonment of claim. Sub-rule 4 of Order XXIII Rule 1 provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3) he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. Order XXIII Rule 1A permits transposition as a plaintiff under Order X Rule 1 on the application of a defendant. Apart from the fact that this is not an application made by defendant No.1 additionally it appears that there are remedies available to both plaintiff and defendant No.1 other than taking recourse to this chamber summons. If ultimately the claim in the suit succeeds as against defendant No.2 pursuant to the agreement, the plaintiff either having given up his claim against defendant No.1 the fruits of decree can be shared by the parties viz, plaintiff and defendant No.1 or the defendant No.1, in the event of plaintiff being unable to obtain any reliefs, have an independent claim against defendant No.2 and in relation to the agreement dated 9th October 2009. In these circumstances, looked at from any angle, this chamber summons is misconceived and is, therefore, dismissed. No costs. (S.C.DHARMADHIKARI, J)