Under Order VIII Rule 9 CPC, leave for additional written statement denied if sought to retract clear admissions in original, as it prejudices plaintiff by substituting new case; counsel inadvertence insufficient justification.

JUDGMENT :

N.J. JAMADAR, J.

1. Rule. Rule made returnable forthwith, and, with the consent of the learned Counsel for the parties, heard finally.

2. By this Petition under Article 227 of the Constitution of India, the Petitioners-Defendants assail the legality, propriety and correctness of the order dated 6 May 2024 passed by the learned Judge, City Civil Court, Mumbai, whereby the Notice of Motion taken out by the Petitioners to grant leave to the Petitioners-Defendants to file additional written statement, came to be rejected.

3. For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they are arrayed before the City Civil Court.

3.1 Defendant No.1 is a private limited company. Defendant Nos.2 and 3 are the directors of Defendant No.1. Under the Leave and Licence Agreement dated 1 August 2018, Defendant No.1 had granted the Respondent – Plaintiff a licence to use and occupy Unit No.104, on the first floor in the building known as ‘Platina’, situated at C-59, Bandra Kurla Complex, Bandra (East), Mumbai, with two car parking spaces (the subject premises), for a term of 36 months, commencing from 5 March 2018. A sum of Rs.49,93,920/- was deposited by the Plaintiff with the Defendants by way of interest free deposit to be refunded at the termination of the licence. As the term of the licence was about to expire, correspondence was exchanged between the Plaintiff and Defendants in regard to the delivery of the possession of the subject premises to the Defendants and refund of the security deposit of Rs.49,93,920/-.

3.2 On 7 November 2020, the Plaintiff delivered possession of the subject premises to the Defendants. In the wake of the dispute over the refund of the security deposit, a suit came to be instituted for recovery of security deposit of Rs.49,93,920/- along with interest of Rs.10,60,710/-, computed at the rate of 18% p.a. from 12 November 2020 till the date of the institution of the suit and future interest.

3.3 The Defendants appeared and contested the suit by filing written statement. It was, inter alia, contended that, the claim for refund of Rs.60,54,630/- was false and untenable. The Defendants contended, there were outstanding licence fee, CAM charges and electricity bill dues aggregating to rs.5,42,225/- payable by the Plaintiff to the Defendants. Under the terms of the Leave and Licence Agreement, the Defendants were entitled to deduct the outstanding amount from the security deposit and refund the balance amount. The Defendants had shown willingness to pay the balance amount after deducting the outstanding amount, but the Plaintiff adopted an unreasonable stand. Hence, the claim for refund of the entire security deposit without deduction, was not tenable.

3.4 It seems, after the written statement in the aforesaid terms came to be filed, the Plaintiff took out a Notice of Motion being Notice of Motion No.3016 of 2022 for a summary judgment on the strength of the admissions of liability by the Defendants in the written statement and email dated 18 November 2020. Thereupon, on 15 December 2022, the Defendants addressed a communication to the Plaintiff contending that, the Defendants were required to carry out repairs to restore the subject premises to its original state. Subsequently, on 24 March 2023, the Defendants took out a Notice of Motion seeking leave to file additional written statement, to lay a claim of Rs.96,82