* HIGH COURT OF DELHI : NEW DELHI
+ IA No.11692/2007 in CS (OS) No.766/2003
Judgment reserved on: 28th April, 2009
% Judgment decided on : 8th May, 2009
Tara Chand Aggarwal ......Plaintiff
Through : Mr. Madan Lal Sharma, Adv. with
Mr. Amit Rana, Adv.
Versus
Babu Lal & Ors. .....Defendants
Through : Mr. Amit Kumar, Adv. for Def. Nos.1-2
Mr. Ashish Gupta, Adv. for Def. No.3
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. The plaintiff filed the suit for rendition of accounts and recovery of amount. The present application under Order VI Rule 17 CPC read with Section 151 of Code of Civil Procedure, 1908 has been filed on behalf of plaintiff seeking amendment in the plaint.
2. It is stated in the application that during the pendency of the suit, the plaintiff filed written complaint under Section 406/420/468/471/34 IPC and whereupon an FIR No.384/2004 was lodged against defendants. The police on investigation recovered cheques „drawn as self‟ bearing forged signatures of the plaintiff CS (OS) No.766/2003 Page 1 of 8 whereby defendants No.1 & 2 managed to withdraw funds from the accounts of plaintiff‟s firm M/s. Shyam Lal Pawan Kumar. The police had sent aforesaid cheques for investigation and report of expert at Calcutta was submitted to the prosecution. The police had filed challan for the aforesaid offence against defendants No.1 & 2 in the above suit and the case is pending trial in the court of Shri Ajay Goel, MM, Delhi.
3. The plaintiff by way of present application seeks to add the following additional paragraphs in the plaint after para No.13 : "13a. That against the illegal act of defendants No.1 & 2 with regard to embezzlement of the accounts and misappropriation of the funds of the plaintiff‟s firm M/s. Shyam Lal Pawan Kumar, plaintiff had filed complaint which was referred to police station Lahori Gate, Delhi for investigation. The local police of police station Lahori Gate, Delhi recorded the statement of plaintiff on 18.11.2004 and thereupon FIR No.384/2004 dated 18.11.2004 under Sections 406/420/468/471/34 Indian Penal Code was registered against defendants No.1 & 2. 13b. That in the course of the investigation of the aforesaid case the police recovered 18 cheques bearing forged signatures of the plaintiff from State Bank of Bikaner and Jaipur, Khari Baoli, Delhi issued from the account No.27899 of M/s. Shyam Lal Pawan Kumar for the period 26.05.1997 to 08.12.2000. Police also recovered 37 cheques bearing forged signatures of the plaintiff issued from account No.21387 of M/s. Shyam Lal Pawan Kumar with State Bank of India, Fatehpuri, Delhi. It is submitted that on the basis of the aforesaid cheques defendants No.1 & 2 by forging and fabricating signatures of the plaintiff had withdrawn the amount of Rs.15,20,2000/- (Rupees Fifteen Lakh Twenty Thousand) from said accounts of sole proprietary firm of the plaintiff namely M/s. Shyam Lal Pawan Kumar.
13c. That the local police of police station Lahori Gate, Delhi obtained specimen signatures and handwriting of defendants No.1 & 2 in the above case and also handwriting and specimen signatures of the plaintiff. The aforesaid handwriting and specimen signatures along with aforesaid cheques thus taken in to custody by the police were sent for investigation and report to G.E.Q.D. office Calcutta who had submitted its report for prosecution vide letter No. DXC-109/2005/782 dated 16.05.2005. The aforesaid report is reproduced as under:-
"The person who wrote enclosed writing stamped CS (OS) No.766/2003 Page 2 of 8 and marked S-54 to S-121 also wrote red enclosed writing similarly stamped and marked 992, 9146 and Q155. It has not been possible to express any opinion of rest of the items on the basis of the material at hand."
13d. That the local police of police station Lahori Gate, Delhi after due investigation of the case submitted challan dated28.11.2006 for the prosecution of defendants No.1 & 2 for the offence under Sections 406/420/468/471/34 IPC. The trial of the aforesaid case is pending the court of Shri Ajay Goel, MM, Delhi.
13e. That the facts and circumstances explained above in paras 13a to 13d clearly demonstrate and indicate that defendants No.1 & 2 in common conspiracy and collusion with each other had forged and fabricated the signatures of the plaintiff of cheques drawn as „self‟ and on the basis of said manufactured and forged cheque manipulated to withdraw amount illegally and fraudulently from the account of the plaintiff‟s firm namely M/s. Shyam Lal Pawan Kumar. It is stated that defendant No.3 was also associated with defendants No.1 & 2 who had presented the aforesaid cheques and withdrew the amount in cash from the bank and delivered the same to defendants No.1 & 2 who had misappropriated and miutilized the said amount to the loss and detriment of the plaintiff. The defendants are liable to render true accounts of the money so illegally withdrawn and misappropriated from the accounts of the plaintiff firm with State Bank of India, Fatehpuri, Delhi and State Bank of Bikaner and Jaipur, Khari Baoli, Delhi. The plaintiff shall refer to and rely upon material traced out by the police in connection with aforesaid criminal case and the certified copy of the some of the documents is annexed herewith."
4. It is submitted by the plaintiff that the aforesaid amendment has arisen during the pendency of the suit and is a subsequent event having taken place after filing of the present suit. The amendment is necessary and material for just and proper adjudication of the claim of the plaintiff, and should be allowed in the interest of justice. The present application is opposed by the defendants.
5. In the reply filed by the defendant No.3, it is submitted that the proposed amendment was very well in the knowledge of the plaintiff at the time of the filing the suit and at the time of filing replication in reply to the written statement but the plaintiff deliberately choose not to CS (OS) No.766/2003 Page 3 of 8 incorporate these facts. The pleadings in the case are completed and the issues have already been framed. It is contended that the proposed amendment if allowed, will cause prejudice to the defendants and will delay the trial.
6. It is further stated by defendant No.3 that there are no specific allegations in the plaint against the defendant No.3 in the present suit. Moreover, no relief against him has been asked by the plaintiff. The amendment sought to be made in para 13(a) to 13(d) are not related to the defendant No.3. Only in para 13(e) the allegations are made against him which are wrong and denied by defendant No.3. It is stated that the cheques were issued by the plaintiff to the defendant No.3 and as per the instructions of the plaintiff, the defendant No.3 withdrew the amount in cash from the bank and delivered the same to the plaintiff. It is further alleged that the FIR No.384/2004 was filed only against defendants No.1 and 2, and the name of defendant No.3 was not mentioned anywhere.
7. In reply, the plaintiff has submitted that the proposed amendment is based upon subsequent events having taken place after filing of the suit and settlement of the issues when challan was filed in June, 2007. It is alleged that the totality of the facts and circumstances mentioned in the amended plaint in paras 13(a) to 13(e) clearly indicates conspiracy between the defendants. It is further alleged that defendant No.3 in collusion with defendant No. 2 withdrew the amount on the basis of forged signature of plaintiff and misappropriated the same and thereby caused loss to the plaintiff.
CS (OS) No.766/2003 Page 4 of 8
8. The defendants No.1 and 2 opposed the present application on the ground that the criminal proceedings are independent of the civil suit. The investigation conducted in the criminal matter would have no repercussion in the pending civil suit. Moreover, the facts investigated by the investigating officer are yet to be decided and ascertained in the trial. The scope of the present suit is only restricted to rendition of accounts. If the plaintiff has came across any accounts in the criminal matter during the course of investigation, he can withdrew the suit and initiate a suit for recovery of money against the defendants. There is no adjudication of rights involved as such in this suit except that the plaintiff has to show the relevancy and nexus to the account which are sought to be rendered. Thus the application is liable to be dismissed.
9. It is further urged that the application is not maintainable on the ground of delay and latches. The FIR was filed on 18.11.2004 and the investigation was completed in the year 2005. It is denied that the plaintiff came to know about the proposed amendment only in June 2007. It is submitted that the plaintiff participated in the investigation proceedings from time to time and opposed the petition for anticipatory bail of defendants No.1 and 2. The application was filed by the plaintiff in October, 2007 and is, therefore, belated and liable to be dismissed. The proposed amendments have no nexus to the pending claim for rendition of accounts. Permitting the proposed amendment would jeopardize the rights of defendants No.1 and 2 in the trial or in the criminal proceedings. The proposed amendments are by and large contents of the charge sheet which has no evidentiary or prima facie CS (OS) No.766/2003 Page 5 of 8 value and is not a conclusive evidence since charges are yet to be framed in the matter under the Code of Criminal Procedure.
10. The plaintiff in the rejoinder stated that the documents discovered by the police in the course of the investigation and the report of the handwriting expert are material documents having direct nexus with subject matter of the present suit. The documents and particularly cheques on which signatures of the plaintiff were forged are material documents and would enable this Court to fairly and effectually decide controversy involved in the present suit.
11. It is further stated that in the course of the investigation of the criminal case, material facts have been discovered which, if proved, would enable this court to find whether the defendants were in possession of the funds, assets and accounts of the firm of plaintiff in fiduciary capacity and as such are liable to render true and faithful accounts. The criminal proceedings are confined to the commission of the criminal offence whereas civil liability shall be determined by this court on rendition of accounts. However the documents recovered during criminal investigations are relevant for the just and expedient decision of the present suit.
12. It is further alleged that while granting the anticipatory bail to the defendant Nos. 1 and 2, it is held that the matter was purely civil in nature and no criminality is involved. The documents came to the knowledge of plaintiff after the charge sheet was filed and there is no delay in filing the application for amendment.
13. Even otherwise delay is no ground to deny the amendment CS (OS) No.766/2003 Page 6 of 8 which is otherwise just and expedient for the disposal of the case on its merits. The documents recovered by the police in the course of the investigation are material documents for the just decision of the case.
14. I have heard counsel for both the parties. it is not in dispute that the pleadings are complete in this suit and issues have been framed but the trial in the suit has not yet been commenced.
15. It is well settled law that the amendment which is necessary to decide the real controversy between the parties and which will not prejudice the parties, should be allowed. The merits of amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment. [Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi, III (2006) SLT 67=II (2006) CLT 62 (SC)=(2006) 4 SCC 385 and Lakha Ram Sharma v. Balar Marketing Pvt. Ltd., V(2003) SLT 92=97 (2002) DLT 342=(2003) 2006 (2) SCALE 363].
16. I am of the considered view that by amending the plaint, no prejudice will be caused to the defendants. In the interest of justice and to effectively adjudicate the real dispute between the parties, the amendment should be allowed. The plea of defendant No.3 that there are no allegations against him has no force as in the amendment sought as well as in the original plaint, the defendant No.3 was clearly impleaded in the plaint and allegations against defendant No.3 in collusion with defendants No.1 and 2 misappropriating the funds from the account of the plaintiff has been made. The allegation in this regard has to be examined at the time of trial. Therefore, at this stage, it can CS (OS) No.766/2003 Page 7 of 8 not be determined as to whether the defendant No.3 was involved in the said activities or not. Further, at the present stage, only the amendment is allowed on the basis of the allegation of the plaintiff, the defendant No.3 is entitled to defend the same in accordance with law.
17. In the result, the present application is allowed. The amended plaint be taken on record. The defendants shall file amended written statement to the amended plaint within 2 weeks. Rejoinder, if any, within three weeks thereafter.
CS (OS) No.766/2003 List the matter before Joint Registrar on 6 th July, 2009 for evidence.
MANMOHAN SINGH, J MAY 08, 2009 SD CS (OS) No.766/2003 Page 8 of 8