1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS SUMMONS SUMMONS NO.734 OF 2007 NO.734 OF 2007 NO.734 OF 2007 inin in SUMMARY SUMMARY SUMMARY SUIT NO.2122 of 2004 SUIT NO.2122 of 2004 SUIT NO.2122 of 2004 Simplex Simplex Simplex Concrete Concrete Concrete Piles India .. Plaintiff Piles India .. Plaintiff Piles India .. Plaintiff Limited Limited Limited vs vs vs SVC SVC SVC Superchem Limited Superchem Limited Superchem Limited ...... Defendant Defendant Defendant Mr.A.Khanna Mr.A.Khanna Mr.A.Khanna i.b i.b i.b M/s Khaitan & Co for Plaintiff M/s Khaitan & Co for Plaintiff M/s Khaitan & Co for Plaintiff Mr.Atul Mr.Atul Mr.Atul Damle Damle Damle for Defendant for Defendant for Defendant CORAM CORAM CORAM : : : S.J.Vazifdar, J S.J.Vazifdar, J S.J.Vazifdar, J DATED DATED DATED : : : 27th February, 2008 P.C. P.C. P.C. 1.1.1. The Chamber Summons is filed for amendment of The Chamber Summons is filed for amendment of The Chamber Summons is filed for amendment of the the the plaint. plaint. plaint. 2.2.2. A Summons for Judgment being Summons for A Summons for Judgment being Summons for A Summons for Judgment being Summons for Judgment Judgment Judgment No.608 No.608 No.608 of 2004 was taken out. By an order of 2004 was taken out. By an order of 2004 was taken out. By an order dated dated dated 20th September, 2005 unconditional leave was 20th September, 2005 unconditional leave was 20th September, 2005 unconditional leave was granted. granted. granted. I am informed that an appeal against this I am informed that an appeal against this I am informed that an appeal against this order order order has been dismissed and that a Special Leave has been dismissed and that a Special Leave has been dismissed and that a Special Leave Petition Petition Petition against the order of the Division Bench against the order of the Division Bench against the order of the Division Bench has has has also been dismissed and the suit has been also been dismissed and the suit has been also been dismissed and the suit has been expedited. expedited. expedited. 3.3.3. In the order dated 20th September, 2005 it is In the order dated 20th September, 2005 it is In the order dated 20th September, 2005 it is observed observed observed that the suit is filed on the basis of that the suit is filed on the basis of that the suit is filed on the basis of consent consent consent terms dated 19th June, 2001 The learned terms dated 19th June, 2001 The learned terms dated 19th June, 2001 The learned Judge Judge Judge has further observed inter alia as follows : has further observed inter alia as follows : has further observed inter alia as follows : " Para 1:................................ Para 1:................................ Para 1:................................ In In In my my my opinion, to file a Summary Suit on the opinion, to file a Summary Suit on the opinion, to file a Summary Suit on the basis basis basis of the said consent terms and seek a of the said consent terms and seek a of the said consent terms and seek a decree decree decree dehorse the original cause of action dehorse the original cause of action dehorse the original cause of action would would would not not not be maintainable.........." be maintainable.........." be maintainable.........." 2 4.4.4. By this amendment, the plaintiff merely seeks By this amendment, the plaintiff merely seeks By this amendment, the plaintiff merely seeks toto to clarify that the suit is filed on the cause of clarify that the suit is filed on the cause of clarify that the suit is filed on the cause of action action action pursuant to the liability of the defendant pursuant to the liability of the defendant pursuant to the liability of the defendant toto to pay the amounts under the original agreement. pay the amounts under the original agreement. pay the amounts under the original agreement. 5.5.5. For instance, it is further alleged that the For instance, it is further alleged that the For instance, it is further alleged that the cause cause cause of action namely breach of contract remains of action namely breach of contract remains of action namely breach of contract remains toto to be the source of the cause of action enumerated be the source of the cause of action enumerated be the source of the cause of action enumerated therein. therein. therein. Thereafter, the averments regarding the Thereafter, the averments regarding the Thereafter, the averments regarding the contract contract contract itself have been made. itself have been made. itself have been made. 6.6.6. It is to be noted that the plaint as originally It is to be noted that the plaint as originally It is to be noted that the plaint as originally filed filed filed also refers to the tender and the letter of also refers to the tender and the letter of also refers to the tender and the letter of intent intent intent and and and the original contractual provisions were the original contractual provisions were the original contractual provisions were also also also referred referred referred to. All that is sought to be done by to. All that is sought to be done by to. All that is sought to be done by the the the amendment is to amplify the same and to amendment is to amplify the same and to amendment is to amplify the same and to establish establish establish the the the connection between the original cause connection between the original cause connection between the original cause of of of action and the cause of action in the suit. In action and the cause of action in the suit. In action and the cause of action in the suit. In other other other words, there is no inconsistent plea taken. words, there is no inconsistent plea taken. words, there is no inconsistent plea taken. Nor Nor Nor is the cause of action changed. is the cause of action changed. is the cause of action changed. 7.7.7. In the circumstances, the Chamber Summons is In the circumstances, the Chamber Summons is In the circumstances, the Chamber Summons is made made made absolute in terms of prayer clause (a). absolute in terms of prayer clause (a). absolute in terms of prayer clause (a). Amendment Amendment Amendment to be carried out within four weeks from to be carried out within four weeks from to be carried out within four weeks from today. today. today. The defendant is at liberty to file The defendant is at liberty to file The defendant is at liberty to file additional additional additional written statement after the amendment is written statement after the amendment is written statement after the amendment is carried carried carried out within four weeks. out within four weeks. out within four weeks.