1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.263 of 2009 in Suit No.3337 of 2008 Kesoram Industries Ltd. ..Plaintiff vs. 1 Maharashtra Jeevan Pradhikaran and another ..Defendants Mr.Simil Purohit with Ms.Ameya Gokhale i/b Khaitan and co. for plaintiff. Ms.Neeta Karnik for defendant no.1 CORAM: S.J.KATHAWALLA J. 17th July, 2009 P.C. 1 This Chamber Summons is taken out by the plaintiff seeking permission to amend the plaint in terms of the schedule annexed to the Chamber Summons. 2 The suit is filed by the plaintiff on 10th December, 2008 for a declaration that the request of defendant no.1 for encashment of Term Deposit Receipt of Rs.15,00,000/- by letter dated 20th November, 2008 addressed to the defendant no.2 bank is illegal, unlawful, contrary to the contract between the parties 2 and accordingly void. Consequential relief/s in terms of the perpetual order and injunction and direction to defendant no.2 to pay over to the plaintiff all sums which mature on Term Deposit Receipt of Rs. 15,00,000/- with up to date interest due are sought by prayer clauses (b) and (c) of the plaint. 3. This Court is informed by the learned Advocate appearing for defendant no.1 that by their letter dated 6th January, 2009 they have withdrawn their earlier letter dated 20th November, 2008 addressed to defendant no.1 seeking encashment of the Term Deposit Receipt of Rs.15,00,000/- and that they have also forwarded a copy of this letter to the plaintiff on the same day i.e. 6th January, 2009. However, the learned Advocate for the plaintiff states that the plaintiff has received the said letter on 13th February, 2009. In view of the said letter of withdrawal dated 6th January, 2009, prayer (a) of the suit has become infructuous. 3 Consequently the question of granting of any prayers in terms of prayer clauses (b) and (c) would also not arise. In fact, the learned Advocate for defendant no.1 has submitted that they will not seek encashment of the said term deposit receipt even in future and that the plaintiffs were free from 6th January 2009 to withdraw the said sum with interest due thereon from the defendant no.2 bank. The entire suit has, therefore, become infructuous as of date. 4. The present Chamber Summons is taken out by the plaintiff to amend the infructous suit and seek reliefs against defendant no.1 on a fresh cause of action, viz. for a declaration, that invocation of the Bank Guarantee dated 5th March, 2008 bearing No. 0999808 BG 0000101 and encashment thereof by the defendant no.1 is illegal, unlawful, contrary to the contract between the parties and accordingly void. An order and decree is also sought against the defendant no.1 to forthwith pay over to the plaintiffs a sum of 4 Rs.43,50,000/- being the proceeds of the illegal encashment of the bank guarantee dated 5th March, 2008 together with interest thereon at the rate of 18% p.a. 5. The argument advanced on behalf of the plaintiff is that it cannot be said that the suit has already become infructuous because this chamber summons was taken out before 11th February, 2009 and the copy of the letter dated 6th January, 2009 was received by the plaintiff only on 13th February, 2009. In my view, the suit became infructuous the moment defendant no.1 wrote a letter to defendant no.2 dated 6th January, 2009 withdrawing their letter dated 20th November, 2008 which is the subject matter of the suit. Again no right accrues in favour of the plaintiff only by filing of the above chamber summons. Their right to amend the plaint can only be considered and decided when the chamber summons is finally heard. Today, when the Chamber Summons is being heard the earlier suit filed by them has become 5 infructuous. The question of amending the suit and carrying out the amendments and introducing a fresh cause of action now does not arise. 6. In view thereof, the Chamber summons is dismissed with no order as to costs. Needless to add that dismissal of the chamber summons will not preclude the plaintiff from filing a fresh suit pertaining to the subject matter of the chamber summons. (S.J.KATHAWALLA J.)