1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 460 OF 2006 IN SUIT NO. 2471 OF 1997 M/s. Antia Electricals Pvt. Ltd. ... Plaintiffs. V/s. Bharat Diamond Bourse & Anr. ... Defendants. Ms. A. Joshi i/b. Mulla & Mulla & C.B.C. for the Plaintiffs. Ms. A. Wandrewala i/b. Law Charter for Defendant No.1. Mr. J. Khatodia i/b. M. Main for Defendant No.2. CORAM : S.C. DHARMADHIKARI, J. DATE : 20TH OCTOBER 2008. P.C. :- This is a Chamber Summons by the Plaintiffs for amendment to the plaint. 2 2. The Plaintiffs have filed the above Suit in this Court for a declaration that revocation of a Bank Guarantee (Annexure `B' to the plaint) by Defendant No.1 is illegal and fraudulent and for permanent injunction restraining the First Defendant invoking the same and from making payment therein. The Suit is filed on the basis that the First Defendant addressed a letter on 16th July 1997 alleging that breaches had been committed by the Plaintiff with regard to the Suit contract and the First Defendant purported to terminate this agreement and thereafter, invoked the Bank Guarantee. This aspect is mentioned in paragraphs 17 and 18 of the plaint. 3. Now, the Plaintiffs seek to incorporate a prayer firstly for payment of Rs.86,87,000/- which is the amount under the Bank Guarantee. 4. That part of the amendment is not opposed by Defendant No.1. Defendant No.2 is the Bank and it is not concerned with the incorporation of the prayer regarding payment of this sum. 5. The Plaintiffs now seek to incorporate prayer clause (a) 3 (ii) in the plaint claiming a sum of Rs.46.36 lakhs towards costs, charges and expenses incurred and loss of profit suffered by them. That sum is referred to in paragraph 18 of the unamended plaint. Now, the Plaintiffs seek to elaborate that aspect by referring to certain subsequent events and also refer to correspondence that is letters of 18th July and 19th July 1997 and further letters. 6. It is contended by the Plaintiffs that there is no question of any alteration of any cause of action inasmuch as the same contract and the same Bank Guarantee is subject matter of the unamended plaint and the amended pleas. The same contract and the obligations thereunder are being referred to with a view to elaborate the pleas on the quantum of alleged loss sustained. Therefore, this is just a formal amendment and no prejudice is likely to be caused to the Defendants. 7. However, Ms. Wandrewala, appearing for Defendant No.1 contended that as far as incorporation of the prayer for damages is concerned, the same is clearly barred by law of limitation as the 4 cause of action accrued in the year 1997 whereas the Chamber Summons is filed in the year 2006. She submits that the relief of damages cannot be claimed as no leave is sought nor granted under Order II Rule 2 of the Code of Civil Procedure to omit to sue for the claim of damages and losses. Therefore, the second suit is clearly not maintainable. That bar cannot be overcome by amending the plaint and therefore, the amendment to this extent should be rejected. 8. Reliance is placed by her on several decisions of the Supreme Court and that of the Delhi High Court to support the submission 9. I have perused the Chamber Summons and the replies filed thereto. I have also perused the unamended plaint and the schedule of amendments. Ms. Wandrewala does not dispute that a claim can be made and amendment also can be permitted by keeping open the bar of limitation. She does not dispute that subject to the said bar an amendment can be granted. In these circumstances, and by merely permitting amendment to the plaint, it is not as if this Court 5 is concluding the issue on limitation. The plea that the amended claim is time barred can always be raised and subject to the bar of limitation, the amendment can be granted. Therefore, keeping open all pleas on the aspect of limitation so also leaving open the issue, the amendment can be granted. 10. As far as the maintainability is concerned and the aspect of leave under Order II Rule 2 of the Code of Civil Procedure, even that matter is not concluded by this order. By allowing the amendment and incorporation of prayer clause (a)(ii) in the plaint, I am not holding that this Court can award damages. I am also not concluding the issue of maintainability of the Suit to the extent of this claim. Even if the amendment is allowed and the pleas are incorporated does not mean that the claim is being decreed. This Court will always frame appropriate issue in the light of the rival pleadings and only on the material produced, finally determine as to whether the plea raised by Ms. Wandrewala prohibits the Plaintiffs from claiming the relief for damages so also prevents the Court from awarding the same. The aspect of maintainability of that claim is 6 kept open and subject to the same, the amendment is allowed. 11. In the result, the Chamber Summons is made absolute in terms of prayer clause (a). The amendment is granted subject to the pleas on bar of limitation and applicability of Order II Rule 2 of C.P.C. being kept open. Amendment to be carried out within two weeks from the date of the receipt of the copy of this order. Amended plaint to be served within four weeks thereafter. Written statement/amended written statement to be filed within a period of six weeks from the date of the receipt of the amended plaint. No order as to costs. (S.C. DHARMADHIKARI,J.)