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 NOTICE OF MOTION NO.1206 of 2008. NOTICE OF MOTION NO.1206 of 2008. NOTICE OF MOTION NO.1206 of 2008. IN IN IN SUIT NO.642 of 2004. SUIT NO.642 of 2004. SUIT NO.642 of 2004. Dr.Iswarprasad Satyanarayan Gilada ..Plaintiff versus Ms. Naslee Wadia & Ors. ..Defendants Mr.Panicker for the Plaintiff Mr.Santosh Shetty for the Defendants CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 7th July, 2008. DATED : 7th July, 2008. DATED : 7th July, 2008. P.C. 1. The suit came to be filed by the plaintiff for account between plaintiff on the one hand and the defendants on the other hand with regard to certain transaction which was entered into between the plaintiff and the defendants. According to the plaintiff after the defendants received the grant for the activity which was to be carried out by the trust, the plaintiff would get 50% of the amount for having contributed for carrying out the said activity for and on behalf of the trust. The suit is basically for accounts. In the present motion the plaintiff wants an Order so as to see that the defendants are directed to deposit in this Court the sum of Rs.10 Lakhs and odd amount being the -2- amount due to the plaintiff. The plaintiff has put up claim by way of particulars of claim and according to the plaintiff the amount set out in the particulars of claim is due and payable. Hence the prayer. 2. After having considered the entire record and hearing the learned advocates, it is required to be mentioned that this being a suit for account the rival contentions will have to be decided. The stand of the plaintiff that the plaintiff’s association was entitled to receive certain amount from the defendants will have to be gone into and in the absence of specific admissions on part of the defendants the prayer of the plaintiff seeking deposit of Rs.10 Lakhs and odd amount by the defendant cannot be granted when this plaintiff has failed to make out prima facie case in so far a relief in terms of prayer clause (a). 3. Prayer clause (b) relates to return of articles set out in Exhibit D to the Notice of Motion. In the course of hearing before this Court, certain orders in the earlier proceedings were pointed out wherein the defendants were -3- willing to allow the plaintiff to pick up the articles listed in Exhibit D. Today, before this Court the defendants showed willingness to allow the plaintiff to take away the articles. In view of this, the plaintiff can be permitted to take those articles by having arrangement as detailed below. 4. Learned Advocate Mr. Panicker submitted that those articles may or may not be in good condition and even used by the defendants after the arrangement between the plaintiff and defendant came to an end and therefore the plaintiff may be wanting to institute suit for damages if the articles have deteriorated and cannot be used. In so far as this aspect is concerned, it would not be proper for this court now to comment upon the state of affairs so far as the said articles are concerned. As of today, only an order can be passed allowing the plaintiff to take back the articles mentioned at Exhibit D. The plaintiff will take back those articles at his own risk and consequences and also without prejudice to his rights and contentions. -4- 5. Prayer clause (c) relates to amendment of the plaint. Plaintiff wants to carry out the amendment so as to add paragraph 25(a) as set out in the Schedule of Amendment, and I am not inclined to insist that the plaintiff shall file Chamber Summons for the same. Hence, I am inclined to allow this amendment. 6. For the reasons mentioned aforesaid, I pass the following Order. ORDER . Motion is dismissed so far as prayer clause (a) is concerned. . So far as prayer clause (b) is concerned, the defendants shall allow the plaintiff to visit the premises of the defendants on 14.7.2008 between 11 a.m. to 1 p.m. Plaintiff be permitted to have the Scientific Advisor with him so that the plaintiff and his adviser can identify the articles set out in Exhibit D and take them away from the premises of the defendants. The defendants shall offer necessary convenience to the plaintiff to -5- take away the articles. The plaintiff shall take away the articles from the premises of the defendants at his cost. Taking of such articles shall be done by the plaintiff without prejudice to his rights and contentions. . If a particular article is not found in the premises, a note of the same shall be made by the plaintiff as well as the defendants. . Motion disposed of so far as prayer clause (b) is concerned. . So far as prayer clause (c) is concerned, the plaintiff is permitted to amend the plaint as set out in the schedule of amendment at page 4 in the motion. . Amendment to be carried out within two weeks from today. The plaintiff to serve the amended copy of the plaint upon advocate for the defendants within one week thereafter. . In the facts and circumstances of the case, there shall be no order as to costs. -6- . Suit set down for directions on 20.8.2008. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)