1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.106 OF 2008 IN SUMMARY SUIT NO.3207 OF 2002 Shri.Chetan S.Mehta, proprietor of M/s.Auxitex .. Plaintiff V/s M/s.Siddharth Processors .. Defendants Mr.R.D.Soni i/by Mr.Sunil Kadam for the Plaintiff. Mr.Vishal Kanade i/by Ms.Kanchan Pamnani for Defendant No.1. CORAM : R.G.KETKAR, J. DATE : 7th August, 2009. P.C.: 1. Heard learned counsel for the parties. This chamber summons is taken out by the plaintiff for condonation of delay caused in taking out the present chamber summons as also seeking for an amendment to the plaint as per the schedule annexed to the chamber summons. 2. The original suit was instituted on March 30, 2002 for recovery of an amount of Rs.52,793/- as more particularly set out in Exh. ‘D’ to the plaint. By prayer clause (a) to the plaint, it is prayed by the plaintiff that the Defendants be ordered and decreed to pay to the plaintiff a sum of Rs.52,793/- as more particularly set out in the particulars of claim, Exh. ‘D’ together with interest at the rate of 24% p.a., on the 2 said amount of Rs.52,793/- from the date of filing of the suit till the date of payment. 3. By the present chamber summons, among other amendments the plaintiff has also prayed for amendment to prayer clause (a) of the plaint thereby seeking to substitute an amount of Rs.52,793/- by amount of Rs.44,213. 4. Opposing the chamber summons, affidavit is made on behalf of Defendant No.1 contending interalia that in the entire plaint there is no whisper about the claim of interest. Even in the particulars of claim Exh. ‘D’ only principal amount of Rs.52,793/- is claimed without any interest. Apart from that it is also submitted that there is no agreement between the parties towards the payment of interest at a particular rate. Lastly it is submitted that at any rate the claim of interest is time barred and therefore the plaintiff is not entitled to claim any interest. 5. Reliance is also placed by the learned counsel for Defendant No.1 on the judgment of the Apex Court in the case of Sampath Kumar V/s.Ayyakannu and Another, (2002), 7 SCC 559 to contend that even if the amendment is allowed it may be allowed from the date of taking out the chamber summons for amendment, and the amendment should not relate back to the date of institution of the suit. According 3 to him, if the amendment is allowed to relate back to the date of institution of the suit, it will cause prejudice and will take away the right of Defendants which is accrued to them on account of inaction on the part of the plaintiff. 6. As set out earlier when the suit was instituted the interest at the rate of 24% p.a., was claimed by the plaintiff on the principal sum of Rs. 52,793/-. By the proposed amendment, the principal amount is sought to be substituted by Rs.44,213/- . It is not as if for the first time that the plaintiff is making claim of interest at the rate of 24% p.a. In my opinion, therefore, there is no question of any delay so as to permit the amendment only from the date of taking out the chamber summons. In so far as other contention of the defendants that there is no written agreement between the parties on a particular rate of interest, basically it is on the merits of the case. Presently I am concerned with the chamber summons seeking amendment to the plaint. In view of this, chamber summons is made absolute in terms of prayer clause (a) and (b). Amendment to be carried out within two weeks. (R.G.KETKAR, J.)