IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 798 OF 2008 IN SUIT NO. 955 OF 1990 The Board of Trustees of the Port of Bombay...... ......Plaintiff. V/s M/s.Venus Paper Mills & Ors. ...... ...Defendants. Mr.U.J.Makhija i/by M/s.Motiwalla & Co., Adv. for the plaintiff. Ms.N.S.Sugnani, i/by M/s.Bhatt & Saldhana Adv. for the defendant No.2. CORAM: A.P.DESHPANDE, J. 30.6.08 PC: By the present chamber summons defendant No.2 seeks to delete the original para 2 of the written statement and prays for its substitution by the proposed amendment as set out in the schedule. The plaintiff instituted a suit for recovery of wharfage, demurrage, port trust charges, customs charges etc. The plaintiff averred that the defendants 2 and 3 were the agents of the vessel in question. Defendant No.2 did not deny that it was the agent of the vessel in question, on the contrary defendant No.2 pleaded that as an agent of the carrier it cannot be held liable for the alleged dues of its principal. Issues were framed touching the pleadings and parties have 1 proceeded in examining the witnesses. Examination in chief of plaintiff' s sole witness is already over. It is relevant to note that defendant No.2 has cross examined the said witness and thereafter has closed the evidence. Defendant No.2 also informed the Commissioner who has recorded the evidence that 2nd defendant does not propose to lead any evidence. Matter is now listed for arguments. At this stage application for amendment is made. By the proposed amendment defendant No.2 seeks to contend that defendant No.2 is not an agent of the vessel in question. It is pleaded in the proposed amendment that the 3rd defendant were the agents of two vessels viz. Euram Lines & Navigation Inc. and Neptune Orient Line and the agency in respect of Neptune Orient Line was only transferred in favour of defendant sometime in the year 1986. It is contended that there has been no transfer of the agency of vessel Euram Lines in favour of defendant No.2 and defendant No.3 continues to be the agent of the Euram Lines & Navigation Inc. Thus the liability even as an agent is sought to be denied. Learned counsel for the defendant No.2 has contended that for the first time when counsel for defendant No.2 had an occasion to peruse the bill of lading after its production by defendant No.3 he realised that 2nd defendant is not the agent and hence moved the present chamber summons. Per contra, learned counsel for the plaintiff opposing the chamber summons has submitted that the written statement was filed way back in the year 1995 and is sought to be amended after evidence of the parties is over 2 and thus being belated the chamber summons need to be rejected. It is also submitted that by the proposed amendment defendant No.2 is seeking to withdraw admission and the same cannot be permitted, moreso, at this stage as the plaintiff will be prejudiced. 2. What is to be seen is that after coming to know of the fact that defendant No.2 is not the agent 2nd defendant could have immediately moved this Court. On the contrary it chose to cross examine the witness of the plaintiff and also chose to close its evidence. It is only after the entire evidence came to be closed that the present chamber summons has been moved. The 2nd defendant has failed to make out case for allowing amendment in view of the proviso to order 6 rule 17 of Code of Civil Procedure. Learned counsel for defendant No2 relies on judgments reported in the case of Ashaya Restaurant v. Anjanppa & Anr., AIR 1995 SC 1498 and Panchdeo Narain Srivastava v. Km.Jyoti Sahay & Anr., AIR 1983 SC 462. Said judgments however do not advance the case of defendant No.2 any further. At this belated stage such proposed amendment cannot be permitted hence the same is rejected. Chamber summons stands rejected. List the matter for arguments after three weeks. 3