1 CHS170.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CHAMBER SUMMONS NO. 170 OF 2011 IN SUIT NO. 4913 OF 2000 Nadeem Majid Oomerbhoy ... Plaintiff v/s Rashid S. Oomerbhoy & ors. ... Defendants Mr.U.J.Makhija i/by Thakore Jariwala & Associates for the applicant/plaintiff. Mr.Rahul Narichania i/b y Desai Desai Khimjee & Mulla for the defendant No.1 in support. CORAM: R.M.SAVANT, J. DATED: 7TH APRIL, 2011 P.C.: 1. The above chamber summons has been filed by the plaintiff for amendment of the plaint in terms of the schedule to the chamber summons. The said schedule comprises as many as 39 paragraphs which are sought to be added. The amendments run into about 46 pages. The said amendments are therefore comprehensive and substantial. 2 CHS170.11 2. It is required to be noted that the suit as originally filed is for dissolution of the partnership firm M/s.Ahmed Oomerbhoy Pvt. Ltd. of which original plaintiff and defendant Nos.1 to 3 and 5 are partners. Court Receiver came to be appointed in respect of assets of the said partnership firm. It is also required to be noted that in respect of the other firms wherein the same family members are involved as partners, namely, Bombay Soap Factory and Hindustan Cold Storage, suits have been filed for their dissolution being Suit Nos.2539 off 2009 and 2955 of 2009, respectively. 3. Insofar as the trade marks are concerned, Suit No.547 of 2003 has been filed in respect of the trade mark POSTMAN and its infringements by the marks COSTINO and IL POSTIANO. 4. In the affidavit in support of the motion, it is mentioned by the applicant who is now the plaintiff in place of the original plaintiff that he has come across a large number of facts and circumstances after the inspection of records, taken charge of by the Court Receiver from the office of the suit firm, as well as large number of events have occurred after 3 CHS170.11 the filing of the above suit and it is therefore necessary in the interest of justice that all the above facts and circumstances be pleaded in the plaint. It has further been averred in the said affidavit that he has been brought on record only on 16.12.2010 and he has filed the above chamber summons immediately thereafter. The above chamber summons is opposed by the defendant No.1 by filing an affidavit in reply. Various contentions have been taken in the said affidavit in reply. However, the sum and substance of the opposition can be culled out from paragraphs 4, 7, 9 and 16 of the said affidavit in reply. It is averred that the basic requirement that the amendments are necessary for the determination of the issues involved in the above suit is not pleaded. It is stated that the amendments if allowed, would lead to introduction of facts which have no nexus with the subject matter of the suit and can be a subject matter of the other suits which are pending, would involve joining persons as parties who are not at all concerned with the subject matter, would result in multifarious causes of action being introduced. 5. Heard the learned counsel for the parties. 4 CHS170.11 6. The learned counsel Mr.Makhija appearing in support of the motion submitted that the amendments as contained in the schedule are merely an amplification of the case which is already made out in the plaint. The learned counsel would contend that the amendments are necessary for a complete adjudication of the issues involved in the suit and merely because they are filed at this stage, cannot be a ground to reject them. The learned counsel to buttress his said submission, relies upon the judgment of the Apex Court in the case of between Suraj Prakash Bhasin v/s Smt.Raj Rani Bhasin & ors. reported in A.I.R. 1981 SC 485. In the said case, the amendments were sought to be introduced by the applicants. The Apex Court held that, it is within the discretion of the Court whether to allow them or not and merely because the amendments are moved belatedly cannot be a ground to reject them. In the said case, the amendments were allowed as they did not change the cause of action. Para 5 of the said judgment is material in the context of the present motion. The same is reproduced herein under: “5. The arguments urged with vigour by counsel for the appellant were calculated to make out the gross delay on the part of the plaintiff-respondent in seeking amendment, the dubious device of developing a case of partnership and seeking relief thereon while leaving such a cause dormant in the 5 CHS170.11 original plaint and the utter untenability of the new fangled version of a partnership. Granting these grounds for the sake of argument, we are far from satisfied that the trial Court has been guilty of such mis-exercised of discretion as to call for this Court’s intervention. It is well known that amendments of pleadings are within the discretion of the Court although judicial discretion is not wild humour. Justice Cardozo, with juristic accuracy and literary felicity, expressed exquisitely the principles governing judicial discretion: The nature of the Judicial Process Yal University Press (1921),” 7. Per contra, it is submitted by Mr.Narichania, the learned counsel appearing for the defendant No.1 that a perusal of the affidavit in support of the motion indicates that the same is bereft of any particulars as to when the plaintiff acquired knowledge of the facts mentioned in the schedule. What is his source of knowledge and information, whether the facts pleaded are out of the inspection of records taken charge by the Court Receiver. The learned counsel contended that the basic requirement that the amendments are necessary for the determination of the issues involved in the suit has not been pleaded. The learned counsel opposed the amendments on the ground that if the same were allowed the same would result in multiple causes of action being clubbed together, joinder of parties who have nothing to do with the list in the suit, causes of action being permitted which are beyond limitation. The learned counsel would contend the very serious allegations of embezzlement, fraud, 6 CHS170.11 etc. are now sought to be introduced in the suit by way of amendment, which is not permissible. The learned counsel would contend that the case of the plaintiff that he came to know all the facts post filing of the suit, cannot be accepted as the plaintiff is the son of the original plaintiff who has been prosecuting the suit as the constituted attorney of the original plaintiff right from the inception, as the original plaintiff was unwell and unable to attend the Court. The learned counsel submitted that the facts which are now sought to be introduced can therefore be said to be known to the plaintiff right from the beginning and there is no reason why the said facts are now sought to be introduced by way of the amendments. The learned counsel further submitted that some of the facts which are now sought to be introduced have no relevance in the instant suit as the independent suits in respect of the same are pending in this Court. The learned counsel lastly submitted that the entire attempt of the plaintiff or the motive behind filing the above application is somehow delaying the adjudication of the suit by complicating the issues as also of obfuscating the real issue involved in the above suit. 8. I have heard the learned counsel for the parties and I have bestowed my anxious consideration to the rival 7 CHS170.11 contentions. 9. At the outset, it is required to be noted that it is trite that in matters of amendment of pleadings, a liberal approach should be adopted and the amendments should not be disallowed merely on the ground that in moving the same there is some delay. Of course, the Court is enjoined to see whether the said amendments which are said to be allowed are necessary. As mentioned herein above, the affidavit in support is bereft of any particulars and, therefore, in one sense the plaintiff has not discharged the obligation cast upon him to satisfy this Court as to the reasons for the delay in moving the application as also the facts now sought to be introduced came to his knowledge after the suit was filed or have transpired during the pendency of the suit. Though the merits of the amendments sought to be introduced need not be gone into whilst considering the application for amendment, the Court would be failing in its duty if the amendments are to be allowed for the asking. Hence, with the assistance of the learned counsel appearing for the parties, I have gone through the schedule of the amendments. On such perusal, it is found that the facts relating to various proceedings filed in this Court and the orders passed therein are sought to be introduced by way of 8 CHS170.11 paragraphs 4A to 4I. The same are, in my view, unnecessary as they relate to the records of this Court or other Courts and the plaintiff should therefore be in a position to produce the evidence in respect of the said proceedings by way of certified copies, etc. The learned counsel Shri Makhija also fairly conceded that the said course of action can in fact be followed by the plaintiff. 10. The substantial part of the amendments relate to the trade mark POSTMAN and its infringement or exploitation. They are contained in paragraph 18L to 18Q. In my view, since a separate suit relating to the infringement of the trade mark POSTMAN is already filed and is pending in this Court, the facts sought to be introduced by way of paragraphs 18L to 18Q need not be introduced in the present suit and the plaintiffs would be at liberty to move an appropriate application in the said suit No.547 of 2003 or by filing a fresh suit. By way of paragraphs 18A to 18E serious allegations of embezzlement, siphoning of funds, etc. have been made. Obviously, the source of the said allegations cannot be the record of the Court Receiver. The case now sought to be introduced by the said amendment cannot therefore be allowed to be introduced by way of an amendment and it cannot be said that the plaintiff who has been prosecuting 9 CHS170.11 the proceedings as a constituted attorney of his father, the original plaintiff, has acquired the knowledge after he has come on the scene some time in the year 2010. 11. Amendments by way of paragraph 18T relate to the properties of the other firms and therefore cannot be permitted. Therefore, the only amendments that can be permitted are by way of paragraphs 3A, 3B, 5, 6, E1, E2, 11A, 11B, 18H, 18I, 18J, 18J-1 and 18M, which have a co-relation with the subject of the suit and can be said to be necessary for a complete adjudication of the issues that arise in the above suit. The rest of the amendments stand rejected. 12. It is also required to be noted that the suit has been expedited by the Apex court by its order dated 8.1.2008. The plaintiff has already filed his affidavit of evidence and compilation of documents which is running into about 600 pages. The contention of the learned counsel for the defendant No.1 Shri Narichania that the above chamber summons has been moved to delay the trial and obfuscate the real issue, therefore has some substance. A perusal of the amendment, prima facie, gives an impression that the plaintiff is putting a facade of having come to know the said facts after filing of the suit and after taking inspection of the 10 CHS170.11 record of the Court Receiver. The said stand of the plaintiff cannot be countenanced in the teeth of the plaintiff pursuing the proceedings in his capacity as a constituted attorney of the original plaintiff who was his father. 13. In that view of the matter, the chamber summons is allowed to the extent mentioned herein above. 14. Amendments to be carried out within a period of four weeks from date and copy of the amended plaint to be served on the advocates of the respective parties. 15. The defendants would be entitled to file their additional written statements within eight weeks of the receipt of the copy of the amended plaint. 16. List the suit for further directions after 12 weeks. (R.M.SAVANT, J.) 11 CHS170.11