Bombay High Court: In a suit filed by Zilingo co-founder Ankiti Bose, the plaintiff seeking a declaration along with temporary and permanent injunction and mandatory injunction based on certain remarks made by the defendant tarnished the image of the petitioner, S M Modak, J., returned the plaint as there is variance in between the averments in the plaint and the petition and the manner of seeking amendment is not proper.
Counsel for the plaintiff submitted that leave can be sought at any stage before admission of the Suit and in this matter, this stage had not arrived. Even though earlier, leave was not sought and there were applications filed for returning the Plaint, however, they had no role to address the Court and the Court was supposed to deal with the leave petition only after hearing the petitioner. There was also emphasis made on the variance in between the averments in the Plaint and averments in the leave petition.
Counsel for defendants opposed the method of tendering draft amendment and it is because as per the Bombay High Court (Original Side) Rules, only clerical errors can be corrected, and the present amendment does not fall in that category.
The Court perused the facts and noted that the Leave petition cannot simply be decided on hearing the petition and the Respondents needs to be heard too based on the averments in the plaint and averments in the leave petition. On the objection regarding variance in the averments in the plaint and averments in the leave petition, the Court further noted that in the plaint, the plaintiff has averred about the exclusive territorial jurisdiction of the present court, whereas, in the leave petition, the plaintiff has pleaded that her father and other associates read the article online in Mumbai and that is why, part of cause of action occurred within the jurisdiction of this Court.
The Court remarked that “Now, the issue is whether, by treating a view that first Leave Petition be decided and then objection about maintainability of the Suit is to be decided. I think, when the Respondents have already appeared before the Court and they have already made their intention clear, I am of this considered opinion that the Leave Petition cannot simply be decided on hearing Petition. The Respondents also need to be heard. However, I would like to make it clear that it can only be on the basis of averments in the Plaint and averments in the Leave Petition.
On the point of variance, the Court further remarked that “There is every reason to believe that this pleading in Petition is made after the Defendants have taken an objection to the jurisdiction of this Court. It gains importance. There is no explanation offered by the subsequent averment was not taken when the Suit was filed. Even though it is true that schedule of amendment is tendered for amending the Plaint, I am not accepting it for the reason that the manner of seeking amendment is not proper. It has to be accompanied by Interim Application.”
The Court concluded that there was inconsistency in between the pleadings of the Plaintiff about cause of action. The averments made in the Petition were not part of the plaint averment. Thus, the Court held that the claim for grant of leave cannot be granted and returned to the plaint for presentation before the appropriate Court.
[Ankiti Bose v Nikhil Subramaniam , 2023 SCC OnLine Bom 2325, decided on 16-10-2023]
Advocates who appeared in this case :
Mr.Amir Arsiwala a/w Ms.Monika Tanna, Ms.Ritika Panchamia and Mr.Dhara Modi i/b. Singhania Legal Services — Advocates for the Plaintiff in Suit (L) No. 20861 of 2023 and Leave Petition (L) No. 27684 of 2023 and for Applicant in Interim Application (L) No. 20867 of 2023.
Mr.Mayur Khandeparkar a/w Mr.Himanshu Gupta a/w Mr.Vikramjit Garewal a/w Mr.Sanidhya Arora and Mr.Jay Bharadwaj i/b. Mr.Sanidhya Arora and GDC Legal Consultants LLP — Advocates for Defendant Nos.1 and 2 in Suit (L) No. 20861 of 2023 and for Applicant in Interim Application (L) No.26320 of 2023.
Mr.Hiren Kamod a/w Ms.Zahra Padamsee and Mr.Kyle Curry and Mr.Jay Vyas i/b. Vashi and Vashi — Advocates for Defendant No.3 in Suit (L) No. 20861 of 2023, for Applicant in Interim Application (L) No. 25830 of 2023 and for Respondent No.3 in Leave Petition (L) No. 27684 of 2023.
