1 mss CHS1050 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1050 OF 2009 IN SUIT NO. 774 OF 2006 PADMANI HIRALAL JAIN .. .. PLAINTIFF Vs. SURESHKUMAR MISHRILAL JAIN.. .. DEFENDANT Mr. S. K. Jain for the plaintiff Dr. Birendra Saraf a/w Nita Solanki i/b Kiran Jain & Co. for the defendant CORAM: S. C. DHARMADHIKARI, J. DATED : 21/11/2011 P.C. Heard Mr. Saraf, learned counsel in support of this Chamber Summons and Mr. Jain, learned counsel appearing for the plaintiff. 2. This is a chamber summons by the defendant seeking to amend the written statement. 3. In the affidavit-in-support of this chamber summons it has been stated 2 mss CHS1050 by the defendant that the written statement in the suit has been filed longtime back but certain clarifications and explanations have not been given therein with regard to the payment which is referred to in prayer clause (c) of the plaint. It is stated that this suit was firstly disposed of by an order dated 18th December, 2006 which order was challenged in appeal and the appeal succeeded. 4. My attention is invited to the order dated 26th July, 2007 in Appeal (Lodging) No. 52 of 2007 and it is contended that the written statement was filed but now what the plaintiff proceeds is on the basis that the written statement contains certain admissions and a decree be passed under Order XII Rule 6 of the Code of Civil Procedure, 1908. However, the written statement must be read as a whole to find out whether there is any admission of the liability and according to Shri Saraf the admission is not unconditional, if at all there is one. Now, even otherwise the said statements are being explained and, therefore, no prejudice will be caused to the plaintiff, if this chamber summons is made absolute and the amendment is allowed. 5. On the other hand Mr. Jain, learned counsel for the defendant submits that this is an attempt to defeat the right of the plaintiff to seek a decree on 3 mss CHS1050 admission. The admission in the written statement is absolute and unconditional. Once a written statement is filed admitting part of the claim, then, an amendment to take away an admission is not permitted in law. For these reasons and even otherwise at a belated stage the explanation is coming forth and, therefore, this chamber summons be rejected. 6. With the assistance of the learned counsel appearing for the parties, I have perused the plaint and the written statement. In the written statement what has been stated by the defendant is that the defendant agrees about the receipt of Rs.10 lacs but asserts that it was received as a personal loan and not as consideration amount for relinquishing tenancy right in respect of the suit premises. Paragraph 6 must be read in its entirety and so read it is not admitting any claim. It is stated that though the amount was received as personal loan and the loan can be repaid but this cannot be said to be a consideration for relinquishing the tenancy right in favour of the plaintiff. 7. To my mind, such a statement cannot be said to be unconditional admission of liability of the plaintiff. This is a version of the defendant in answer to the plaintiff’s claim that the sum of Rs.10 lacs has been retained and yet the tenancy right has not been transferred or relinquished in favour of the plaintiff. Apart from it not being taken as an admission of the liability 4 mss CHS1050 to transfer the tenancy rights all that emerges from the statement is if it is the case of the plaintiff that this is a hand loan or a personal loan given to the defendant and that loan was to be repaid, beyond admitting that, there is nothing as consideration for transfer or relinquishing tenancy rights. 8. In these circumstances, to my mind, this is not an attempt to get out of an admission but it is a case of explaining the statement in the pleadings and particularly an alleged admission. For all these reasons this chamber summons succeeds and it is made absolute in terms of prayer clause (a) without prejudice to the rights and contentions of both sides as far as the merits and maintainability of the plaintiff’s claim. 9. It is clarified that this court is not precluded from framing appropriate issues in the light of the pleadings including that a sum of Rs.10 lacs having been paid by the plaintiff, the defendant is obliged to refund the same with appropriate interest. Keeping open that option, this chamber summons is made absolute in terms of prayer clause (a). Amendment be carried out within a period of two weeks from the date of receipt of copy of this order. The amended written statement be served within a period of two weeks thereafter. (S. C. DHARMADHIKARI, J.)