1 chs473-11 - II.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.473 OF 2001 IN SUIT NO.2913 OF 2004 WITH NOTICE OF MOTION NO.3680 OF 2010 IN SUIT NO.2913 OF 2004 Vidyasagar Sah ..Plaintiff Vs Survival Systems Ltd. And ors. ..Respondents -- Ms.Rajani Iyer with Mr.Snehal Shah i/b.Thakore Jariwala & Associates, for plaintiff. Mr.Naushad Engineer with Jayesh Mistry i/b.RMG Law Associate, for defendant no.1. Mr.Amit Vyas and Ms.Pereira Cynthia i/b.Rajani Associates, for defendant no.2. Mr.Bhalwal with Mr.P.N.Singh i/b.M/s.Vyas & Bhalwal, for defendant no.3 and applicant in Chamber Summons No.473 of 2011. -- CORAM : R.G.KETKAR, J. DATE : 16 th JUNE, 2011 2 chs473-11 - II.odt P.C: Defendant no.3 – Oil & Natural Gas Corporation Ltd. (hereinafter referred as “O.N.G.C.”) has taken out this Chamber Summons on 15 th March, 2011 praying for amendment to the written statement dated 6 th January, 2009 in terms of Schedule “A” to the Chamber Summons. O.N.G.C. has proposed to carry out amendment in paragraphs 4, 5 and 7 of the written statement. O.N.G.C. has proposed to amend paragraph 4 of the written statement to the effect that wherever the words “defendant no.1” appear, the same be deleted and be read as “defendant no.2”. In paragraph 5 line 5, the words “defendant no.1” be deleted and be incorporated as “defendant no.2”. In paragraph 7 line 5, the words “defendant no.1” be deleted and be added as “defendant no.2”. In the same paragraph in lines 7 and 8, the words “defendant no.1” be deleted and be read as “defendant no.2”. 2] In support of this Chamber Summons, Mr.B.P.Bahuguna, Chief Manager (Finance & Accounts) of O.N.G.C. has made an affidavit. Along with the Affidavit, he has annexed (i) Work Order dated 12 th February, 2004 at exhibit “A”, (ii) Contract dated 12 th February, 2004 entered into by and between O.N.G.C. and M/s.Survival Systems 3 chs473-11 - II.odt India, Division of Little Silver Software India Pvt. Ltd., (iii) Purchase Order dated 8 th June, 2004 placed by O.N.G.C. to Survival Systems India. In paragraph 2 of the Affidavit, it is averred that there is a typing mistake and through oversight, the name of defendant nos.1 and 2 appears to be similar and, hence, the Officer of O.N.G.C. did not realise that it is only defendant no.2 who has executed agreement with O.N.G.C. It is further averred in paragraph 3 that he has annexed all the documents executed with defendant no.2 and the payment being made to defendant no.2. 3] The plaintiff has filed affidavit in reply dated 1 st April, 2011 and has denied the contentions raised by O.N.G.C. in its Affidavit-in- support of Chamber Summons. It is averred that in the earlier affidavit dated 27 th October, 2004, O.N.G.C. has categorically stated that the order for Helicopter Underwater Escape Training (HUET) using Modular Egress Training Simulator (METS) was placed on defendant no.1. No Chamber Summons was filed to amend the said affidavit and if present Chamber Summons is allowed, it will directly contradict the statement made in the affidavit dated 27 th October, 2004. 4 chs473-11 - II.odt 4] The plaintiff has filed additional affidavit-in-reply dated 7 th June, 2011. Along with the said affidavit, the plaintiff has enclosed (i) letter dated 19 th August, 2003, (ii) Letter dated 11 th September, 2003, (iii) Letter dated 2 nd December, 2003, (iv) Chart signed and presented by Mr.Jayant Vasa, Director of defendant no.2, (v) First three pages of defendant no.1’s bid, (vi) letter dated 11 th December, 2003, (vii) letter dated 13 th December, 2003, (viii) Letter of Intent dated 29 th December, 2003, (ix) Work Order dated 12 th February, 2004, (x) Contract/agreement dated 12 th February, 2004, (xi) Invoice dated 4 th March, 2004 and (xii) letter dated 27 th March, 2004. In substance, the plaintiff has averred that the documents annexed with the said affidavit clearly establish the case of the plaintiff that O.N.G.C. could not have placed order for HUET using METS on defendant no.2. It is also the case of plaintiff that the affidavit dated 27 th October, 2004 and written statement dated 6 th January, 2009 affirmed by Mr.R.C.Khanna was correct in stating that orders for HUET using METS was placed on defendant no.1. 5] I have heard Ms.Rajani Iyer and Mr.Snehal Shah, learned counsel for plaintiff, Mr.Naushad Engineer with Mr.Jayesh Mistry, learned counsel for defendant no.1, Mr.Amit Vyas and Ms.Pereira Cynthia, learned counsel for defendant no.2 and Mr.Bhalwal with Mr.P.N.Singh, learned counsel for defendant no.3 and applicant in 5 chs473-11 - II.odt Chamber Summons No.473 of 2011. 6] Learned counsel for the plaintiff submitted that even on earlier occasion when the affidavit was filed on behalf of O.N.G.C. on 27 th October, 2004, there is a clear admission on the part of O.N.G.C. that it has entered into contract with defendant no.1. Even in the written statement filed on 6 th January, 2009, it has been specifically averred that O.N.G.C. entered into contract with defendant no.1. Thus, O.N.G.C. has given admission in the written statement about execution of contract by it with defendant no.1. By way of present Chamber Summons, the O.N.G.C. intends to withdraw the admission which is wholly impermissible. At the highest, O.N.G.C. can explain the admission but cannot withdraw that admission. The admission was given on two occasions; firstly, in the affidavit dated 27 th October, 2004 and secondly, in the written statement which was filed on 6 th January, 2009. The present Chamber Summons was taken on 15 th March, 2011 which is after two years. At any rate, it was submitted that the written statement dated 6 th January, 2009 was affirmed by Mr.R.C.Khanna, Head-HSE, Frontier Basin having office at Dehra Dun and the affidavit in support of Chamber Summons is made by Mr.B.P.Bahuguna, who is Chief Manger (Finance & Accounts). In the said affidavit, it is not averred that Mr.Khanna agrees to the assertions made in the affidavit-in-support or that the affidavit is 6 chs473-11 - II.odt made in consultation with Mr.Khanna. Learned counsel for the plaintiff has invited my attention to the judgment of this Court in the case of Armando s/o.Sant Ano Pereira and another Vs. Jude s/o.John D’souza and ors, 2009(4) Mh.L.J. 893 to contend that the admission cannot be withdrawn and at the highest, it can be explained. 7] On the other hand, learned counsel for O.N.G.C. has reiterated that there is purely a typographical error in the written statement dated 6 th January, 2009. The names of defendant no.1 and defendant no.2 appear to be similar and hence, Officer of O.N.G.C. did not realise that it is only defendant no.2 who has entered into agreement with O.N.G.C. and not defendant no.1. He has invited my attention to the documents annexed to the affidavit in support and prayed to allow the Chamber Summons. 8] I have considered the submissions made by learned counsel for the parties. The plaintiff has instituted the suit for recovery of 10% agency commission amount due to the plaintiff from defendant no.1 under a contract recorded in letter dated 6 th December, 2001. The description of defendant no.1 and defendant no.2 is as under : 7 chs473-11 - II.odt Defendant no.1 : Survival Systems Limited, a Company incorporated and registered under the provisions of the Laws of Canada and having its address at 40, Mount Hope Avenue, Dartmouth, Nova Scotia, Canada, B2Y 4K9. Defendant no.2 : Little Silver Software (I) Pvt. Ltd., a Company registered under the provisions of the Companies Act, 1956 (having as its division: Survival Systems India) having its registered office at 15/16, “A” wing, 4 th floor, Paranjpe Building, Subhash Road “A”, Vile Parle (East), Mumbai 400 057. In the Notice of Motion No. 3680 of 2010 taken out by the plaintiff, defendant nos.1 and 2 are described as under : Defendant no.1 : Survival Systems Limited A company incorporated and registered under the provisions of laws of Canada and having its address at 40, Mount Hope Avenue, Dartmouth, Nova Scotia, Canada B2Y 4K9. 8 chs473-11 - II.odt Defendant no.2 : Survival Systems India Division of Littlesilver Software (I) Pvt. Ltd., registered under the Companies Act, 1956 having its registered office 15/16 “A” Wing, 4 th floor, Paranjpe Building, Subhash Road A, Vile Parle East, Mumbai 400 009. 9] It is the case of plaintiff that defendant no.2 is a Company owned and/or controlled by Mr.Jayant Vasa who has directly/through his firms acted as the agent in India for defendant no.1. The defendant no.1 has secured and operated its contract for HUET in India with O.N.G.C./IPSHEM through defendant no.2’s said division. O.N.G.C. has been joined as proper party as relief is being claimed against defendant nos.1 and 2 but in respect of amounts payable by defendant no.3/O.N.G.C. in respect of the contract for HUET. 10] Paragraph 2 of the plaint reads as under :- “2.The plaintiff is filing the present Suit for recovery of the 10% agency commission amount due to the Plaintiff from the defendant No.1 under a Contract recorded in a letter dated 6 th December, 2001. As has been stated hereinafter, pursuant to the liason 9 chs473-11 - II.odt work & efforts of the Plaintiff the Defendant No.1 have in February 2004 secured a contract from the IPSEM division of Oil and Natural Gas Corporation Ltd. (ONGC) for HUET. The Defendant No.1 have taken & are performing the said contract through the Defendant No.2’s said Survival Systems Division, which is a joint venture of the Defendant No.1 & the said Vasa. The Defendant No.2 is only a nominee company and has no real assets or repute/experience of its own. In fact Defendant No.1 have secured the contract in the name of the Defendant No.2 said SSI division by representing that the said division is the Defendant No.1’s joint venture for India and is the only company that would have access to Defendant No.1 Canada, for support and certification. Despite having been awarded the said Contract for HUET of 1920 officers of ONGC for a value of Rs.3.74 Crores and having substantially received payment thereunder from ONGC/IPSEM through Defendant No.2, the Defendant No.1 have wrongfully & dishonestly refused to pay to Plaintiff the aforesaid agreed commission amount.” Perusal of the assertions made in paragraphs 1 and 2 of the plaint would indicate that it is the plaintiff’s case that defendant no.2 is only nominee Company and has no real assets or repute/experience of its own. In fact, defendant no.1 has secured the contract in the name of the defendant no.2’s said SSI Division by representing that the said Division is the defendant no.1’s joint venture for India and is 10 chs473-11 - II.odt the only company that would have access to defendant no.1 having its office at Canada, for support and certification. Despite having awarded the contract of HUET of 1920 Officers of O.N.G.C. for the value of Rs.3.74 Crores, having substantially received received payment thereunder from O.N.G.C./IPSEM through defendant no.2, the defendant no.1 wrongfully and dishonestly refused to pay to the plaintiff the aforesaid agreed commission amount. 11] O.N.G.C. filed written statement on 6 th January, 2009 resisting the suit. At the outset, it was contended that there is no privity of contract between the plaintiff and O.N.G.C. It was further asserted that O.N.G.C. is not aware of the understanding between the plaintiff and defendant no.1 and/or defendant no.2 or that defendant nos.1 and 2 had engaged services of the plaintiff for getting the contract of providing HUET to the employees of O.N.G.C. It was further asserted that O.N.G.C. is not aware that defendant nos.1 and 2 have agreed to pay amount equivalent to 10% of the contract as commission for services as contained in the alleged letter dated 6 th December, 2001. O.N.G.C. further denied that pursuant to the liason work and efforts of the plaintiff, defendant no.1 have in February 2004 secured the contract for HUET. It was reiterated that O.N.G.C. has no privity of contract with the plaintiff. It was also denied by O.N.G.C. that it was solely due to the plaintiff’s efforts, defendant no. 11 chs473-11 - II.odt 1 was awarded the contract by O.N.G.C. for training 1920 employees at the total cost of Rs.3.74 crores. Perusal of written statement of O.N.G.C. would indicate that it has denied privity of contract between the plaintiff and O.N.G.C. as also further denied that pursuant to the liason work and efforts of the plaintiff, defendant no.1 has in February 2004 secured the contract for O.N.G.C. for HUET. 12] I have already extracted who are defendant nos.1 and 2 in the present suit. Defendant no.1 is Survival Systems Ltd., a Company incorporated and registered under the provisions of the Laws of Canada and whereas defendant no.2 is Survival Systems India, Division of Littlesilver Software (I) Pvt. Ltd., a Company registered under the Companies Act, 1956. Perusal of exhibit “A” to the affidavit in support of would indicate that the Work Order dated 12 th February, 2004 was issued by O.N.G.C. in favour of M/s.Survival Systems India (Division of Littlesilver Software India Pvt. Ltd.). The contract dated 12 th February, 2004 at exhibit B to the affidavit in support of Chamber Summons was entered into by and between the ONGC and M/s.Survival Systems India (Division of Littlesilver Software India Pvt. Ltd.). The said contract is signed by Mr.E.Chandran, Manager (MM) for and on behalf of O.N.G.C. and Director on behalf of Survival Systems India (Division of Littlesilver Software India Pvt. Ltd.). Clause 4.2 of the Contract also refers to the Contractor’s registered 12 chs473-11 - II.odt office and address. The Purchase Order dated 8 th June, 2004 at exhibit “C” to the affidavit in support of Chamber Summons was issued by O.N.G.C. in favour of M/s.Survival Systems India having its office at Vile-Parle (East), Mumbai. Even in paragraph 2 of the plaint, it is the plaintiff’s case that defendant no.2 is only a nominee Company and in fact, defendant no.1 has secured the contract in the name of defendant no.2 by representing that the said division is defendant no.1’s joint venture for India. Thus, the plaintiff accepts that factually O.N.G.C. has entered into contract with defendant no. 2. However, it is the case of the plaintiff that defendant no.1 has secured and operated its contract for HUET with O.N.G.C. through defendant no.2 and defendant no.1 is receiving payment for HUET from defendant no.3 through defendant no.2. It would be open to the plaintiff to substantiate its case by leading evidence that though the contract is in the name of defendant no.2, the contract, in fact, really is with defendant no.1. In my opinion, this is a matter of evidence. 13] Learned counsel for the plaintiff has relied upon the judgment of this Court in the case of Armado (supra). In that case, the plaintiffs had instituted Civil Suit No.140 of 1992 for decree of Rs. 4,94,974/- towards the rent illegally collected by defendant nos.1 and 3 and for declaration that the plaintiffs are the co-owners of flat nos.2, 4 and 6 and shop nos.3 and 4 in Pereira building. The plaintiffs 13 chs473-11 - II.odt contended that they are the sons of late Paulina D’Souza, who died on 18 th November, 1972. The plaintiffs were declared as successor of late Paulina D’Souza by virtue of a deed of succession dated 7 th March, 1990. Defendant nos.1 and 3 are the real brothers while defendant nos.2 and 4 are their wives. By virtue of sale deed dated 28 th October, 1967, defendant no.3 Jose and Paulina D’Souza became the owner of plot No.12. In the year 1968-1969, said Paulina and Jose along with defendant no.1, decided to construct a building in the property purchased by them. It was the case of the plaintiffs that the sanction for construction of building was granted in the name of Paulina and defendant no.1, who was representing defendant no.3 for the sake of convenience. Paulina and Jose had spent equal amount for the construction of the said building and supervision and construction of the building was entrusted to defendant no.1 upon oral understanding. It was agreed that rent of ground floor collected by defendant no.1 would be utilised for construction of the first floor. The mother of the plaintiffs had executed a General Power of Attorney in favour of defendant no.1 to enable him to collect rent and supervise the construction work. Though defendant no.1 was collecting rent, he never gave any accounts to the plaintiffs inspite of repeated demands. The plaintiffs came to Goa and found that defendant nos.1 and 3 had refused to co-operate with the plaintiffs. Through intervention of of one Mariano, the plaintiffs got the possession of one of the flats. The plaintiffs, therefore, instituted 14 chs473-11 - II.odt suit for decree of Rs.4,94,974/- and also for declaration. 14] Defendant no.1 resisted the suit contending that although the plot was purchased in the name of defendant no.3, the entire consideration was paid by defendant no.1. He is the exclusive owner of the suit property and neither the plaintiffs nor defendant no. 3 have any right in the suit property. The entire construction was made by him at his own cost. He further contended that the Contractor to whom the contract for construction was given, had filed a suit against defendant no.1 and at that time, neither plaintiffs nor defendant no.3 came forward to pay the amount and defendant no.1 had to satisfy the decree. Defendant no.3 and defendant no.4 had filed identical written statement on 8 th January, 1993 in that suit. 15] Subsequently, defendant nos.1 and 2 had filed Civil Suit No.112 of 2005 against defendant nos.3 to 5 and others. Defendant no.3 was duly served with summons and copy of plaint in this suit. It was the case of defendant no.3 that he was, in fact, not aware of the contents of the suit as well as the written statement filed by him and Civil Suit No.140 of 1992. After going through the plaint in Civil Suit No.112 of 2005, defendant nos.3 and 4 felt that they were cheated by defendant no.1 and their lawyer and, therefore, moved an application 15 chs473-11 - II.odt for amendment of the written statement. Defendant nos.1 and 2 filed application purporting to be an an application under Section 151 of the Code of Civil Procedure, 1908 and contended that under the guise of the amendment of the written statement, they had in fact substituted the written statement. The said amendment application was filed on 7 th March, 2006 i.e.more than 13 years after the written statement was filed in Civil Suit No.140 of 1992. On facts, this Court found that defendant nos.3 and 4 did not make out any case for amending the written statement. In that case, defendant nos.3 and 4 in their written statement had accepted the case of defendant no.1 that he had purchased suit property in the name of defendant no.3 from his own funds and after 13 years from the filing of written statement, the application for amendment was moved on 7 th March, 2006. In that context, the Court came to the conclusion that the admission cannot be withdrawn but, at the most, can be explained. In my opinion, the facts obtained in the case of Armado (supra) and the facts in the present case are materially different. In my opinion, the judgment in the case of Armado (supra) does not advance to the case of the plaintiff. 16] Having regard to (i) the averments made in the plaint and written statement dated 6 th January, 2009 filed by O.N.G.C., (ii) Work Order dated 12 th February, 2004, (iii) Contract dated 12 th February, 16 chs473-11 - II.odt 2004, (iv) Purchase Order dated 8 th June, 2004 which is executed by O.N.G.C. with defendant no.2 as also having regard to the similarity in the names of defendant nos.1 and 2, I am satisfied that a typographical error was committed by O.N.G.C. in the written statement dated 6 th January, 2009. Considering the written statement dated 6 th January, 2009 as a whole, as also the material on record referred hereinabove, it cannot be said that admission was given by O.N.G.C. about execution of contract with defendant no.1. Consequently, it cannot be said that by seeking amendment of written statement, O.N.G.C. intends to withdraw the admission. 17] In the result, Chamber Summons is allowed in terms of prayer clause (a) with no order as to the costs. Amendment be carried within two weeks from today. A copy of amended written statement shall be served on the plaintiff and other defendants within four weeks from today. It is expressly made clear that the observations made herein are only for the purposes of disposal of the Chamber Summons. 18] On the motion made by learned counsel for the plaintiff, this order shall remain stayed for two weeks. 17 chs473-11 - II.odt 19] By consent of the parties, Notice of Motion No.3680 of 2010 is adjourned to four weeks. [R.G.KETKAR, J.]